Volume 222 — Pennsylvania State Reports

<p>Appeal, No. 84, Jan. T., 1908, by defendant, from judgment of C. P. Luzerne Co., March T., 1905, No. 286, on verdict for plaintiff in case of Peter Conroy v. City of Pittston.</p> <p>Trespass to recover damages for personal injuries. Before Lynch, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The locality of the accident appears from the following drawings:</p> <p> </p> <p>Defendant presented this point:</p> <p>6. The declaration in this case alleges the defect in the highway to have been an unguarded opening between the earthen part of the highway and the bridge planking. The proof in this case is that a sluiceway eleven inches wide and nine and three-quarters inches deep extended from the end of the bridge into a paved gutter ten inches, the paving extending on three sides of the sluiceway. There is no evidence of an unguarded opening or depression between the earthen part of the highway and the bridge planking. Therefore, the verdict must be for the defendant; the answer of the court being:</p> <p>Denied without reading to the jury. [1]</p> <p>Yerdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Errors assigned were (1) in denying point as above and (5) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 311, Jan. T., 1907, by plaintiff, from decree of C. P. Fayette Co., No. 498, In equity, dissolving preliminary injunction in case of Greensboro Gas Company v. Home Oil & Gas Company.</p> <p>Bill in equity for an injunction. Before Umbel, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dissolving the injunction.</p>

<p>Evidence — Exclusion of evidence — Relevancy—Collateral matters.</p> <p>Testimony relating to collateral matters not connected with the parties to the action, and without any relevancy to the issue is properly excluded.</p> <p>Assault — Civil action for damages for assault — Evidence—Record of conviction — Cross-examination.</p> <p>On the trial of a civil action to recover damages for personal injuries caused by assault and battery, where the defendant offers in evidence the record of his conviction of the crime and also testifies that he was serving a term in prison as a result of such conviction, and he offers this evidence in mitigation of punitive damages, the plaintiff may on cross-examination develop all the facts shown by the record, or by the testimony of defendant at the time the sentence was imposed.</p> <p>Assault — Civil action — Punitive damages — Record of conviction.</p> <p>On the trial of a civil action to recover damages for personal injuries resulting from an assault, punitive damages may be recovered if the facts warrant their imposition, and this even in a case where there has been a conviction of a criminal offense. In such cases the rule is that the record showing conviction and sentence may be offered in evidence, and considered by the jury in mitigation of exemplary damages.</p> <p>Practice, C. P. — New trial — Excessive verdict.</p> <p>As a rule, whether a new trial be granted or refused is a matter within the sound discretion of the court, and is not sufficient ground of reversible error unless for gross abuse.</p> <p>In an action to recover damages for assault, a new trial will not be granted on the allegation that the verdict of $45,000 was excessive •where it appears that the defendant deliberately shot at the plaintiff, three times with a Winchester rifle, injuring him twice and maiming him for life.</p> <p>Practice, C. P. — Verdict—Conditional verdict — New trial.</p> <p>The trial court may impose terms upon either or both the parties, as conditions of the grant or refusal of a new trial, and the latitude allowed to the discretion of the court to this end is very great.</p> <p>Where a verdict of $45,000 has been returned in an action of trespass for an aggravated assault and battery, the trial court does not abuse its discretion directing that a new trial be granted unless the plaintiff within ten days files a stipulation to accept in full satisfaction of his claim the sum of $35,000 to be paid or secured within thirty days after notice of the filing of the stipulation.</p> <p>Appeals — Practice, Supreme Court — Assignments of error — Erroneous assignments.</p> <p>It is improper to assign error as follows: “The court erred in omitting in its general charge to instruct the jury as requested by defendant by his counsel as follows:” setting forth a mere suggestion of counsel as to the duty of the court under the circumstances.</p> <p>It is erroneous and improper to assign error as follows: “The court erred in charging the jury as follows, special attention being directed to those portions of the charge inclosed in brackets:” setting forth the whole charge.</p>

<p>Negligence — Blasting—Damages—Punitive damages.</p> <p>Too great caution cannot be exercised in permitting the recovery of punitive damages for the willful or reckless act of a servant not authorized or approved by the master. The rule that permits a recovery in such cases is a harsh one, and the plainest principles of justice call for caution in its application. While this is so, punitive damages will be allowed against a corporation whose superintendent persists recklessly and defiantly for months in using unusually heavy blasts of dynamite with full knowledge that they are shattering and practically ruining a house and bam, and apparently does the work in this way because it is cheaper to pay damages for the injuries the heavy blasts may cause than to do the work in a different way.</p>

<p>Appeal, No. 75, Jan. T., 1908, by plaintiff, from order of C. P. York Co., Jan. T., 1908, No. 66, refusing mandamus in case of Commonwealth ex rel. James G. Glessener, District Attorney of York County, v. Robert G. Kessler, Emanuel Hartman and George W. Holtzinger, Commissioners of York County.</p> <p>Petition for mandamus. Before Bittenger, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal of mandamus.</p>

<p>Appeal, No. 89, Jan. T., 1908, by defendant, from judgment of C. P. York Co., Jan. T., 1907, No. 86, on verdict for plaintiff in case of Paul T. Sullivan, by his father and next friend Noah Sullivan, and Noah Sullivan v. Hanover Cordage Company.</p> <p>Trespass to recover damages for personal injuries to a boy fifteen years of age. Before Bittenger, P. J.</p> <p>At the trial it appeared that plaintiff, when a little over fifteen years oí age, was employed by the defendant in its cordage works. On July 20, 1905, while engaged in cleaning a machine his hand became caught in the machine and was crushed. The evidence showed that the machine was not in regular operation at the time, but that it had been put in operation to facilitate the cleaning.</p> <p>The court charged in part as follows:</p> <p>[This act of assembly which I read to you, which is the law, the act of 1905, does not make it unlawful for parties operating this kind of work or machinery to employ a minor under sixteen years of age, but it does make it unlawful to permit him to clean or oil machinery while in motion, or to operate or otherwise have the care or custody of any elevator or lift. The other act of assembly, of 1901, makes it unlawful to employ such a minor under sixteen years of age without an affidavit being filed in the office provided for in the act of assembly, and goes further than this last act of assembly. We instruct the jury that this is an important point in the case. Did they know when they employed this boy he was under sixteen years of age ? Did they know when they put him in charge of this machine that he was under sixteen years of age, and did they know how he was instructed to clean this cylinder when the belt was on and the machine moving ? Were they aware of the fact that it was being done in this way, .and did they order him or place him in control of that machine, or allow him to operate it knowing he was under sixteen years of age ? If they did, then, even if he was negligent in this matter and his negligence contributed to this injury, if he allowed Troné to turn on too much power when he should have turned on but little, or if he cleaned the machine when it was going too fast, why then the defendant company cannot take advantage of it; they cannot take advantage of the concurrent negligence. The Supreme Court have decided the defendant cannot make a defense of this character when they have violated the law in the matters here at issue in the case.] [6]</p> <p>Yerdict and judgment for Paul T. Sullivan for $3,000 and for Noah Sullivan for $1,000. Defendant appealed.</p> <p>Error assigned was portion of charge as above, quoting it.</p>

<p>Street railways — Municipal consent — Use of other company’s tracks without municipal consent — Constitutional law.</p> <p>A grant by a municipality to a street railway company to operate its own lines on certain streets and subject to certain conditions and regulations does not carry with it the right of the company obtaining such franchise to permit other companies to come into the city and use its tracks without municipal consent and against municipal protest.</p> <p>Where a street railway company has lost municipal consent to the use of streets by nonperformance of precedent and subsequent conditions in the ordinance granting the consent, it cannot operate its cars on another company's tracks with the consent of such company, but without municipal consent.</p> <p>The provision of section 9, article XVII of the constitution that “no street passenger railway shall be constructed within the limits of any city, borough, or district without the consent of its local authorities,” is not to be construed so as deprive municipalities of a right to require street railway companies to secure municipal consent, not only for the “construction” but also for the “operation” of their lines.</p>

<p>Appeal, No. 35, Oct. T., 1908, by plaintiffs, from decree of G. P. No. 1, Allegheny Co., March Term, 1907, No. 922, dismissing bill in equity in case of Catharine McKinney et al. v. The Pennsylvania Railroad Company.</p> <p>Bill in equity for an injunction. Before Carnahan, 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>Wills — Devise—Survivorship—Death of testator — Fee simple estate.</p> <p>Where there is a devise of a fee simple absolute in the first instance and the gift is immediate, words of survivorship will be referred to the death of the testator and not to death generally, whenever it may occur. The first taker is entitled to the benefit of every implication and his estate will not be cut down unless the intention to do so clearly appears.</p> <p>Testator devised the residue of his estate to his three children, share and share alike, and further directed as follows: “in case any one or more of my last named children — wishes her, or his or their money out of said estate, it is my will that they choose three disinterested persons to appraise said estate at cash value. It is my will and desire that if either — shall die without a lawful heir, her or his or their share of the estate to fall to the last named heir or heirs.” Held, that the children took an estate in fee simple.</p>

<p>Partnership — Purchase of deceased partner’s interest — Appraisement of value of interest — Equity—Pleading—Demurrer.</p> <p>Where articles of copartnership provide that in ease of the death of one of the partners, the survivors shall have the option to purchase the deceased partner's interest at a valuation to be ascertained in a manner specifically set forth in the articles, a court of equity has no power to change the method of valuation merely because the good will of the business has enormously increased in value since the date of the articles, and because the method of valuation therein prescribed would lead to inequitable results.</p> <p>Where articles of copartnership provide that surviving partners shall have the option to purchase and take over the interest of a deceased partner in a manner specified, and, upon the death of one of the partners, the surviving partners take over the deceased's interest in the way ■provided by the articles, a demurrer to a bill in equity charging them with having arbitrarily, and without right and unjustly seized upon the interest of the deceased, does not admit any illegal conduct on the part of the defendants, inasmuch as the averment in the bill is but an inference on the part of the plaintiffs that the defendants had acted illegally.</p> <p>A demurrer admits the facts fairly pleaded, but it does not admit argumentative conclusions or doubtful inferences from undisputed facts.</p> <p>Partnership — Participation in profits — Contribution of capital — Compensation for services.</p> <p>A mere participation in the profits of a business will not make the parties partners inter sese, whatever it may do as to third persons unless they so intended.</p> <p>A share in the profits of a business as a compensation for services does not constitute the person receiving such share a partner in the business.</p> <p>Where a partnership, consisting of four persons, enters into an agreement in writing with one of its employees, by which the latter is to continue in its employment, and is to receive “-as salary for each and every year ” an amount equal to a certain percentage of the net profits of the business, and the employee is also to deposit a sum stated with the firm which by the express terms of the agreement is not to be a contribution to capital, and is to be returned to him on the happening of certain events, the employee does not by such an agreement become a partner in the business.</p> <p>Where a bill in equity attempts to establish a partnership- among the defendants, and the bill charges that certain of the defendants had made advances to the business in the nature of contribution to capital, a demurrer to the bill does not admit the truth of such an averment, where it appears from the papers annexed to the bill that the moneys contributed were to be mere deposits, and not contributions to the capital.</p>

Appeal, No. 140, Oct. T., 1907, by defendants, from decree of O. P. No. 2, Allegheny Co., Oct. Term, 1902, No. 620, awarding an attachment for contempt of court in case of E. R. Sullivan and Jennie P. A. Sullivan, his wife, v. Jones & Laughlin Steel Company et al. Petition for attachment for contempt.

<p>Appeal, No. 399, Jan. T., 1907, by defendant, from judgment of C. P. No. 2, Phila. Co., March Term, 1906, No. 3,328, on verdict for plaintiff in case of Franklin Trust Company v. Philadelphia, Baltimore & Washington Railroad Company.</p> <p>Trespass to recover damages for losses occasioned by relying on bills of exchange which represented no goods delivered by the carrier. Before Sulzberger, P. J.</p> <p>The court charged in part as follows :</p> <p>[The plaintiff claims that it was induced to believe that the accounts were true and existent, and that the buyers had got the goods, by the certificates of the defendant, that say the defendant had the goods for shipment to those respective persons, and was going to ship them, or had shipped them. To this I do not understand that the defendant admits that it issued these receipts, but it gives no explanation of why the goods did not reach the people, except to say “ we never got the goods.” Not to have got the goods is an excellent reason for not shipping them, but it is not ah excellent reason for issuing shipping receipts, and why the defendant issued those receipts does not to my recollection appear in the evidence. Nobody testifies why they were given. Though the man who signed them was on the stand in this court room, he does not explain why he gave the receipts. It is true another man signed two of them, but these men, after all, are only the authorized expression of the company’s power. They are confessedly the agents of the company, and it is exactly as if the company itself signed the receipts, and they do not tell us why they signed the receipts. In the absence of any explanation we have here, then, the case of the company certifying that it got the goods, and that certificate being used by the person who gets it from the company to get money from the plaintiff.</p> <p>There is, however, a third class of transactions, and those are the ones to which I alluded in the beginning, when the company gave its receipt and there was no alteration. On them the question of fact arises.</p> <p>But the plaintiff contends that all these other things were taken out of his case before he laid it before the jury, and that he is now dealing with you only on the case of. the certificates that were never altered. Respecting such certificates (if you find that this plaintiff has such certificates before you), I say to you that the defendant is liable to the plaintiff for its loss by reason of untrue certificates of shipments having been issued by it, because, as I pointed out before, there is absolutely no explanation or qualification of those certificates by the defendant. To say that it got no goods would' be a splendid reason for having issued no receipt, but, having issued the receipt, to say that it got no goods is nothing. It is absolutely without reason to say that. Can you impute to any defendant standing here a total absence of reason ? No, they do not mean to stand in that bald position. What they mean to say is this : “ We have issued this receipt. Somehow we never got the goods. We never would have issued it if we had not been somehow fooled, and there are only three people in the world that could have fooled us, Warnock, his clerk and Binz. Warnock and his clerk we trust. Binz must have done something, we do not know what, by which he perpetrated this fraud.</p> <p>What we have here is their receipt, and no explanation of how it came, provided you do not find that these were originally rightfully issued papers and altered by Binz. You, therefore, stand in this position. If these papers were rightfully issued, issued by the company, as they appear to be, then the company is responsible for having placed in the hands of Binz a weapon of deceit with which to cheat any ordinary mortal, and that not because the paper is negotiable in any legal sense or has any element of negotiability, but because it is against common right to issue weapons of offense and place them in the hands of people with which to hurt others.] [3]</p> <p>[Can you impute to any defendant standing here a total absence of reason ? No. They do not mean to stand in that bald position. What they mean to do is to say this: “ We have issued this receipt. . Somehow we never got the goods. We never would have issued it if we had not been somehow fooled, and there are only three people in the world that could have fooled us, Warnock, his clerk and Binz. Warnock and his clerk we trust. Binz must have done something, we do not know what, by which he perpetrated this fraud. What ?] [4]</p> <p>[What could Binz have done? How could Binz perpetrate the criminality of signing War nock’s name which Warnock signed himself? That is what we do not know. Warnock and his clerk both signed the names. What could Binz have done? He could have done something if Warnock and his clerk had signed a batch of these things and handed them to Binz in blank, so he could fill them up. But we cannot say that because Warnock and his clerk are innocent. He might have done something else, Warnock might have had leisure time one evening, and sat down and signed a bunch of these in blank, and locked them up in his desk, and then Binz might have committed a burglary and got them and used them after-wards, but there is no such evidence. If that had happened, they would know. Where is the evidence ?] [5]</p> <p>Verdict and judgment for plaintiff for $14,146.57. Defendant appealed.</p>

<p>Will — Construction of — Trust and trustees — Survivor.</p> <p>Testator gave his estate to trustees in trust for his four daughters, the income to be paid one-fourth to each for life, and upon the death of any of the daughters leaving issue, the principal to be granted and assigned to such issue, “and in case of the death of any of my said daughters without lawful issue then upon the further trust that they the said .... trustees shall hold the share of such deceased daughter in trust for the use and benefit of her surviving sisters in the same and like manner as is hereinbefore expressed and declared of and concerning the respective share of her said surviving sisters.” Two of the daughters died leaving children, and their shares were distributed to their children. A third daughter afterwards died leaving no issue. Held, that the share of the third daughter did not go to the surviving sister, but should be distributed one-third to the surviving sister, and the remaining two-thirds to the children of the deceased sisters per stirpes.</p> <p>The words “survivor” or “surviving” will be understood as the equivalent of “other,” where in any other sense it would lead to an intestacy, or to inequality among those standing in the same degree of relationship to the testator, or to a distribution not in accordance with the general scheme of the will in its entirety.</p> <p>In the above case it is not necessary to resort to the artificial and arbitrary construction that “survivors” meant survivors at the testator’s death. The time in testator’s mind-was clearly the death of each daughter dying without issue, but he did not mean to make the shares of any group of his grandchildren dependent on the accident of their mother’s survival of her childless sister. The word “other” very clearly expresses his general intent and that is the sense in which he used the word survivors.</p>

<p>Appeal, No. 78, Jan. T., 1908, by Helen O. Robinson, from decree of O. O. Phila. Co., July T., 1906, No. 287, dismissing exceptions to adjudication in Estate of Joseph B. Robinson, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that on October 2, 1902, Joseph B. Robinson was married to Helen M. Clawson. Prior to the marriage an antenuptial contract had been executed and acknowledged by the parties under which Mrs. Robinson was to receive $26,000 in consideration of her releasing all claims of dower and other rights in her husband’s estate. The sum of $25,000 was subsequently paid to her. There was evidence that the decedent had told his wife that he was worth $100,000, but as a matter of fact he was worth about $150,000. The auditing judge, Lamorelle, J., refused to consider the testimony of the widow, to the effect that she had signed the paper in question under the belief that it was another and a different contract previously read to her. The auditing judge refused the widow’s claim to participate in the estate.</p> <p>Exceptions to the adjudication were dismissed by the court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeals, Nos. 306 and 307, Jan. T., 1907, by plaintiffs and defendants, from decree of O. P. No. 3, Phila. Go., March T., 1906, No. 1,178, on bill in equity in case of The Juan F. Portuondo Cigar Manufacturing Company v. The Vicente Portuondo Cigar Manufacturing Company, Charles H. Kors, Louis Weinberg, T. R. Goodwin and Nathan Schwab.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The opinion of the court was delivered by von Mosohzisker, J., which'apart from the formal findings of fact and conclusions of law was as follows:</p> <p>In the disposition of this case the court has answered elaborate requests for findings of fact and law, in addition to making separate findings of its own. These answers and findings practically cover all the points involved, and for that reason we do not feel that the case requires-extended discussion. The court is satisfied that to a considerable degree there was a studied effort on the part of Vicente Portuondo to imitate the markings, labels and general method of dressing his goods that had been pursued by Juan F. Portuondo and thereby to profit on the magic that had already been given to the name of Portuondo by his brother. When the business of Vicente Portuondo went into bankruptcy the defendants in this case purchased the labels and other markings which had been used by Vicente, and their use was continued in a like manner by these defendants. In addition to this the defendants organized the defendant corporation under the name of “ The Vicente' Portuondo Cigar Manufacturing Company,” and advertised their goods as the original “ Portuondo ” cigar, using an imi* tation of the business signature.of “Juan F. Portuondo.” This course of dealing was such as to constitute that which is known in the law as unfair trade competition coupled with an infringement of a business name and in some instances infringement of trade-marks, to such an extent as to entitle the plaintiffs to relief. But the question is as to the measure of the relief that should be given. The plaintiffs and their predecessor, with full knowledge of everything that was going on, have seen fit to rest on their oars and to do nothing to protect their rights for a period óf about sixteen years. During this period the business of Vicente Portuondo grew and thrived, and subsequently declined and went into bankruptcy. The' tangible assets were bought from the receiver in bankruptcy and turned over to the corporation defendant in this case, which corporation also acquired, through an’agreement, executed by the said Vicente Portuondo, the right to use the name of Vicente Portuondo, for which right they are'now paying the widow of Vicente Portuondo a yearly allowance of $2,000.</p> <p>The name of Vicente Portuondo was the lawful and proper name of that individual; and after the individual Vicente Portuondo has been allowed the free use of his name for business purposes without any practical protest during this long and continued period-of years, should a court of equity step in and use the strong hand of a chancellor to stop even a fair and proper use of the name by Yicente Portuondo if alive or by the defendant corporation under the agreement executed by him now that he is dead? That is the question. In this connection it has been strongly argued by the defendants that the plaintiffs have been guilty of such gross laches in asserting their alleged legal rights that they are not entitled to any relief in equity; and many cases are cited to sustain this position. On the other hand, the plaintiffs cite authorities to the effect that long continued acquiescence, or failure to act, in cases of infringement of trade-marks and of unfair trade competition, although amounting to unreasonable delay or inexcusable laches, will not bar the right to an injunction to stop the unfair and fraudulent conduct complained of, but will only act as a bar to the right to an accounting of profits: McLean v. Fleming, 96 U. S. 245; approved in Menendez v. Holt, 128 U. S. 514.</p> <p>No Pennsylvania authorities, one way or the other, directly on this point have been presented, but the case of Go wans v. Ahlbor'n, 4 ICulp, 31, decided by Judge Rice when in the common pleas, follows the rule contended for by the plaintiffs. As this rule laid down by the supreme court of the United States has been followed by such an eminent Pennsylvania jurist as Judge Rice, and, further, as the rule appears to be supported by reason, we consider it controlling in the case at bar. However, as has been well said by the present chief justice of the supreme court of the United States, in Menendez v. Holt, 128 U. S. 514 : “It is in the exercise of discretionary jurisdiction that the doctrine of reasonable diligence is applied, and those who seek equity must do it. A court might hesitate as to the measure of relief where the use by others for a long period under assumed permission of the owner had largely enhanced the reputation of a particular brand.” • So in a case like the present, where a brother'who is a cigarmaker leaves the employ of his elder brother, who' is likewise a cigarmaker, to start in the cigar manufacturing business for himself under his own name, and is' allowed to continue the use of that nafne without practical protest for a period of upwards of sixteen years, and where toward the end of this long period after business reverses an arrangement is made to continue the use of his name in the cigar manufacturing business for his own benefit, and after his death for the benefit of his estate by a payment of an annuity to his wife, and where, on the faith of this arrangement, large sums of money are paid out and invested by innocent third parties in order to thus continue the use of the name, even though it may appear that in the conduct of this business the younger brother had been guilty of certain distinct acts of unfair infringement of the elder brother’s trade rights which had been continued by his successor under a belief of right — in a case like this a court may well hesitate as to the measure of relief, and the relief to be given may very properly be measured in accordance with the circumstances, taking into consideration the long delay and the effect thereof.</p> <p>Of course, it can be argued that the use of the name of Vicente Portuondo by the defendant corporation, and the use of the labels and other markings by that corporation, are a new use against which the plaintiff corporation has proceeded promptly enough, and as a strict legal proposition such a contention might be maintained ; but, on the other hand, it could as well be maintained that the use of the labels, name, etc., by the plaintiff corporation, dating from the time they acquired their rights from Juan F. Portuondo, would constitute a new use. But the eyes of a chancellor will see that in both in-, stances the facts really constitute the continuation of a prior use rather than the beginning of a new one. In considering the measure of relief to be given, it must be borne in mind that a certain business value was added to the name of Vicente Portuondo during this sixteen years by perfectly fair means and business enterprise, as well as by the unfair means complained of.</p> <p>We cannot say, under these circumstances, that it is plain that Vicente Portuondo had no right in the use of his name ; we can say, however, under our findings of fact in this case, that it is perfectly plain .that he had been guilty of abuses in the use of the name by his acts of unfair trade conduct. These acts stand out plainly in themselves. They speak for themselves. They have been written down, and are therefore plain, and can be stopped in the future. Although a chancelor will not be keen to sort the good from the evil for the benefit of a sinner, yet the court may, in measuring its relief, do so for the benefit of third parties whose rights are to be directly affected, where the plaintiff has been guilty of such gross laches as in this case. After this long lapse of years, where the rights of others have intervened, we are not inclined to grant an injunction that will act to restrain a fair and proper use of the name “Vicente Portuondo” by the defendants in the conduct of their business, so long as no unfair or fraudulent trade use is made thereof. In other words, we do not feel called upon, under the circumstances of this case, to drive the defendants out of business and entirely cut off the annuity of the widow of Vicente Portuondo, which happens to be her sole and only support. However, Vicente Portuondo would not have had the right during his lifetime to use his own name in the cigar business in such a manner as to deceive the public into the belief that his business and the business of his brother were one and the same, or to have attracted custom to himself on the belief that his product was the same product as that of his brother, nor to have made any other tricky, dishonest and fraudulent use of his own name calculated to decoy the purchasing public under a misapprehension as to the real facts; nor would he have been allowed to use the name Portuondo, standing alone as against his brother, Juan F. Portuondo, after that brother had built up a particular and general reputation for a brand of cigars known as the Portuondo cigars, and such a use of the name would have been restrained against Vicente Portuondo if alive, and will now be restrained against others claiming under him.</p> <p>The use of the signature of Vicente Portuondo, which is an imitation of the Juan F. Portuondo signature, and the use of the labels, which are an imitation of the Juan F. Portuondo labels, as found by the court in its findings of facts' in this case, will be restrained; and, further, defendants will be restrained from the use of the signs, circulars and affidavit complained of by the plaintiffs which have been, and are now, being used in an unfair manner.</p> <p>The exhibit “ F ” in plaintiffs’ bill has elements of unfair trade competition about it which must be discontinued by the defendants, but we will not restrain the use of the picture of the head and shoulders of Yicente Portuondo. In this connection we will say that although plantation scenes were to a degree, and no doubt still are, in common use upon the labels in the cigar trade, still, the predominant features in the plantation scene used by the plaintiff are the negro with a hoe, occupying a particular pose, the overseer with an extended arm and the particular low house in the rear of the scene, and the general color effect. These features immediately attract the eye, and whether the overseer is put on horseback or on foot, or the negro with this particular pose is put on one side or the other of the óvérseer, makes but little difference. The plantation label of the defendants in several respects is plainly an imitation of this plantation label of the plaintiffs and its use must be discontinued as it now is, or in any other form, using these particular features.</p> <p>It has been urged that many of the features on the cigar box of the plaintiffs, such as the word “ Chico,” the oval mark on the top, the red and yellow paper around the edges, are markings common to many cigar boxes in general use, and, therefore, no complaint should be made of their use by the defendants in this case. While this is true, it is also true that when we find these marks of similarity between the two boxes together, with the other imitations of labels, imitation of particular wordings and the plain imitations of the signature of Juan F. Portuondo — all these things taken together justify the finding of unfair trade conduct on the part of the defendants. Of course, the defendants have the right to use the word “ Chico,” but in doing so it is not necessary for them to use exactly the same type as the plaintiffs have used, nor to place’ it on’ their boxes in exactly the same position relatively to the name of the manufacturer as the plaintiffs happen to do. We would say that the'defendants also have the right to use an oval mark, but in doing so care should be taken not to have it so’ much like the oval mark of the plaintiffs that the one would be readily taken for the other. The yellow'and red edgings are stock trimmings in general use, but taken with the other imitations of plaintiffs’ boxes; their use by the defendants, although possibly without any particular unfair intent, appears suspicious.</p> <p>The name of the' defendant corporation, “ The Yicente Portuondo Cigar Manufacturing Company,” is plainly and unquestionably an infringement on the business name of the plaintiff corporation and will be restrained as such. It was not necessary for the defendants to have taken exactly the same words and the same arrangement of words so far as at all possible under the circumstances, in order to have found a name for their corporation ; but this they have done, as plainly appears by arranging the name of the defendant corporation under that of the plaintiff 'corporation, thus:</p> <p>“ The Juan F. Portuondo Cigar Manufacturing Company.”</p> <p>“ The Yicente Portuondo Cigar Manufacturing Company.” Such a similarity in names is in prejudice of the plaintiffs’ right and will be enjoined ¿s an infringement on the business name of the plaintiff corporation.</p> <p>The plaintiffs are entitled to relief to the extent indicated in this opinion and in the findings in this case, and to that extent only.</p> <p>The chief point of similarity between the markings of the boxes of the defendants and those of the plaintiffs are present and are most noticeable in certain of the “ Chico ” size boxes, where the coloring of the labels is the same with the exception of the caution notice which on the plaintiffs’ box is printed in red, while on the box of the defendants it is printed in blue. However, the whole dressing and general appearance of these two boxes is so similar that an ordinarily careful person using due caution would be likely to be misled into buying one cigar for the other. With certain exceptions as particularly pointed out in the findings of fact, the new box of the defendants with the picture of Yicente Portuondo thereon has but few unfair markings or trimmings, but it is not shown in the testimony how extensively this new box is being used or to what extent the old box has been abandoned. The adoption of this new box, although to a degree a meritorious act on the part of the defendants, cannot be viewed without seeing therein á show of appreciation on their part of the fact that they bad been guilty of certain features of imitation in their old boxes which were to be replaced by these new ones, and, again, the placing of the word “ Registered ” on the plantation label of the defendants, when, in point of fact the label was not duly registered, looks suspiciously as though the defendants themselves appreciated the fact that they had no real right to register that particular label, as in its essential features it was an imitation of the duly registered plantation label of the plaintiffs.</p> <p>We have not overlooked the testimony as to the words “ Five cent straight ” marked on the inside ends of plaintiffs’ Chico box, and the like marking on the defendants’ box (plaintiff’s exhibit 33), nor have we overlooked the use of the brown bands around the cigars of the defendants which are like those used by the plaintiffs. But we have not been able to find any testimony to justify a finding that the plaintiffs or their predecessors adopted or used those markings prior to their use by the defendants or their predecessors.</p> <p>In reaching our conclusions in this case the letters put in evidence at page 25 of the notes have not been considered. These letters were offered together in three files containing a large number of miscellaneous written orders, for the purpose of showing that the goods of the plaintiffs were therein referred to as “ Portuondo ” cigars, so that the inference might be drawn therefrom that the plaintiffs’ cigars were popularly and generally known by that name. The fact sought to be thus established is relevant and the character of proof offered is competent, but the documents relied upon as proof in this instance were neither properly identified, nor was their history sufficiently shown, to justify the admission thereof as evidence in the case. The court further states that of all the depositions, offered at pages 6-9, and again at pages 128-131 of the notes, only the deposition of Yicente Portuondo has been considered. That particular deposition is competent as a declaration against interest, but the other depositions are not competent evidence at all in the present case.</p> <p>The several features of unfairness which have been pointed out, the infringement on the plantation trade-mark, and the imitation signature must all be abandoned by the defendant corporation, and the name of that corporation must be changed so as not to infringe on the title of the plaintiff corporation. With these changes there is not any reason why both concerns should not live and indulge in fair and honorable business competition.</p> <p>And now, July 3, 1907, it is ordered, adjudged and decreed:</p> <p>That the Yicente Portuondo Cigar Manufacturing Company, Charles EL Kors, Louis Weinberg, Theodore EL Goodwin and Nathan Schwab, the defendants, and each of them, and their and each of their servants, agents, salesmen and all persons in privity with them or any of them, be and they are hereby perpetually enjoined as follows:</p> <p>1. From using in connection with the manufacture, sale or advertisement of cigars, upon packages, boxes, cards, plates or otherwise, any representation, exactly or colorably simulating the trade-mark of the plaintiffs, The Juan F. Portuondo Cigar Manufacturing Company, called the “LaFlor de Portuondo ” mark, consisting of the word symbol “ La Flor de Portuondo,” said mark being registered in the United States patent office, August 11, 1885, No. 12,500 ; also registered in the United States patent office, December 19, 1905, No. 18,271; also registered in the office of the secretary of the commonwealth of Pennsylvania, January 23,1906.</p> <p>2. From using in connection with the manufacture, sale or advertisement of cigars, upon packages, boxes, cards, plates or otherwise any label, mark, picture, impression or representation, exactly or colorably simulating the trade-mark of the plaintiffs, The Juan F. Portuondo Cigar Manufacturing Company, called the “Matador,” said mark being registered in the United States patent office, August 11, 1885, No. 12,199; also registered in the United States patent office, December 26, 1905, No. 18,128; also registered in the office of the secretary of the commonwealth of Pennsylvania, January 29,1906; also registered in the office of the secretary of state of Illinois, October 10,1901, and there recorded in Trade Mark Record, page 155.</p> <p>3. From using in connection with the manufacture, sale, or advertisement of cigars, upon packages, boxes, cards, plates or otherwise any label, mark, picture, impression or representation, exactly or colorably simulating the trade-mark of the plaintiffs, The Juan F. Portuondo Cigar Manufacturing Company, called the “ Plantation Scene ” mark, said mark being registered in the United States patent office, December 29, 1885, No. 12,879; also registered in the United States patent office, December 19, 1905, No. 48,272; also registered in the office of the secretary of the commonwealth of Pennsylvania January 23, 1906; also registered in the office of the secretary of state of Illinois, October 10, 1901, and there recorded in Trade Mark Record, page 154.</p> <p>4. From using in connection with the manufacture, sale or advertisement of cigars, upon packages, boxes, cards, plates or otherwise, any label, mark, picture, impression or representation, exactly or colorably simulating the personal signature of Juan F. Portuondo, or the name Yicente Portuondo in script with a dash thereunder. (Exhibit “ D ” of bill and described in the eighteenth finding of fact by the court in the adjudication filed in this case.) Or the corporate title “ The Yicente Portuondo Oigar Manufacturing Company,” or the words “ genuine Portuondo,” without the word “ Yicente ” in connection and immediately before the word “ Portuondo,” such word “ Yicente ” to be in the same size and style of type as the word “Portuondo,” or the word “original” in connection with “ Portuondo,” or the advertisement set forth in the court’s thirty-seventh finding of fact, or the word “Chicos” on cigar boxes in simulation of the style or size of type used by the plaintiffs in its word “ Chicos,” or the words “ Trade-mark registered” on any matter excepting where actual registry thereof has been made, or a label in general imitation of the plaintiffs’ end label, or inside label, or the particular small white label on the front of defendants’ box with the words “The genuine Yicente Portuondo cigars are strictly Cuban hand made, and bear this label and signature Yicente Portuondo,” (described in finding of fact fifty-four by the court in the adjudication filed in this case), or the words “ none genuine without the signature of Yicente Portuondo,” (described in finding of fact forty-six by the court in the adjudication filed in this case), or the “ Trade Warning Advertisement ” set forth in the court’s finding of fact No. 39, or the affidavit set forth in the court’s finding of fact No. 40, or the words “ Only survivors of the originators making the famous Portuondo cigars,” or the words “ the late Joseph M. Portuondo, the founder of the famous brand of Portuondo cigars,” either alone or in combination with any other word or words, or any word or words, device or devices, color or colors, letter or letters, mark or marks of like import or so similar to any of the foregoing as to be calculated to deceive.</p> <p>5. From using for any purpose whatever the word “ Portuondo” unless immediately preceded by the word “Yicente” in the same size and style of letters as the word “ Portuondo.”</p> <p>6. From using any box or boxes similar in general dress and style to the boxes marked and described in the adjudication as “ Plaintiffs’ Box,” “ Defendants’ Box 1,” or “ Defendants’ Box 11,” excepting that the defendants may use the stock edging referred to in the adjudication and an oval mark on the top of the box, such mark not to contain lettering made to imitate the general effect of the mark on plaintiffs’ box.</p> <p>7. From holding out or representing in any way that the goods manufactured by the defendants are the same as those manufactured by the plaintiffs.</p> <p>8. From authorizing, doing, writing, speaking or uttering any other act, matter or thing calculated to cause confusion between the goods of the plaintiffs and the goods of the defendant, with the intention of thereby entering into and indulging in unfair trade competition against the plaintiffs.</p> <p>9. This decree in its operation is expressly limited to cigars sold by the defendants after the date of the entry hereof and is not to affect cigars in the hands of the defendants’ customers delivered before the date of this decree; the decree to be operative on all cigars manufactured by the defendants or any of them after the date of the decree and on all cigars sold by the defendants or any of them after the date of the decree.</p> <p>10. The defendants are to pay the costs of this proceeding, with the exception of the witness fees; each side to bear the cost of its respective witness fees.</p> <p>Exceptions to the adjudication by both parties were dismissed, and both parties appealed.</p> <p>Errors assigned were in the dismissal of the exceptions and the portions of the decree.</p>

<p>Will — Dying without issue — Failure of issue — Act of July 9, 1897, P. L. 213.</p> <p>Under the Act of July 9, 1897, P. L. 213, a devise to a person during his natural life, and then to his issue, “but in the event of the death of the devisee without issue,” then over, the words “death without issue,” •are to be construed to mean a want or failure of issue in the lifetime, or at the death of the devisee, and not an indefinite failure, and the devisee takes a life estate and not a fee under the rule in Shelley’s case.</p>

<p>Appeal, No. 97, Jan. T., 1908, by George Lewis Mayer, from decree of C. P. No. 3, Phila. Co., June T., 1906, No. 2,305, dismissing exceptions to auditor’s report In re Account of Fidelity Trust Co., Trustee under Deed of Trust dated May 23, 1902, executed by Julia Macalester Neill, who afterwards intermarried with George Lewis Mayer, and died August 4, 1904.</p> <p>Exceptions to report of John C. Sheahan, Esq., auditor.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Negligence — Railroads—“Stop, look and listen” — Grade crossings— Obscurity of view — Evidence—Contributory negligence.</p> <p>In a grade crossing accident case where there is no agreement among the witnesses as to what were the actual conditions with respect to sight and hearing at the time, and when these conditions are what the case turned on, they can be determined only by the jury.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained at a crossing, plaintiff testified that when he reached the crossing a train of coal cars was passing west on the track furthest from him, and that he stopped when within two or three yards of the nearest track, and there waited until the last car of the coal train had passed beyond the crossing for a distance of twenty-five feet; that before starting from this point he looked up and down the track and listened, and not seeing or hearing signal or warning of an approaching train, he advanced upon the track immediately in his front and was struck just as he reached the farthest rail by the engine of an east bound passenger train. Plaintiff and his witnesses testified that the obstruction of view was due to the darkness of the morning, and the snow and wind then prevailing. Two of defendant’s witnesses testified that the obstruction of the view was due to the smoke and dust from the coal trains. Defendant claimed that it was the steam and smoke that obstructed the view, and that plaintiff should have waited until these had lifted. Held, that as the evidence was conflicting as to what in fact caused the obstruction of the view, the question of plaintiff’s contributory negligence was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Negligence — ■Master and servant — Mining company — Explosion of toiler — Inspection—Evidence—Act of June 2, 1891, art. 5, sec. 1, P. L. 176.</p> <p>In an action against a mining company to recover damages for the death of one of its employees caused by the explosion of a boiler, where the only negligence alleged was a lack of proper inspection, a judgment is properly entered for the defendant where the evidence shows that the boiler, although second hand, had been purchased from a reputable dealer under a guaranty, that both the dealer and the defendant had it carefully inspected and tested it before the purchase, and that thereafter it had been examined every six months by a qualified person within the meaning of the Act of June 2, 1891, art. 5, sec. 1, P. L. 176, that it had been inspected between three and four months before the explosion and reported in good condition and there was nothing to show that the defendant used the boiler while in dangerous or defective condition.</p>

<p>Appeal, No. 334, Jan. T., 1907, by defendant, from judgment of C. P. Luzerne Co., May T., 1905, No. 430, for plaintiff on case stated in suit of Mary Birkbeck v. Eleanor Wadsworth.</p> <p>Case stated to determine marketable title to real estate.</p> <p>From the case stated it appeared that the plaintiff, who was tbe widow of Joseph Birkbeck, claimed title to the property in question, at the corner of Dana and Grove streets in the city of Wilkes-Barre, under a clause in her husband’s will which was as follows :</p> <p>“ It is my desire that all bonds and stock shall be taken at their face value and all real estate shall be converted into cash, with the exception of the property at the corner of Dana and Grove streets, which shall be held in reserve for my widow together with all household utensils, except piano and music which I desire to be set apart for my step-daughter for her sole and separate use.”</p> <p>The court, in an opinion by Eerris, J., held that the widow took a title in fee, and entered judgment in favor of the plaintiff for $8,000. Defendant appealed.</p> <p>Error assigned was entry of judgment for plaintiff on case stated.</p>

<p>Appeals — Assignments of error — Review on error unassigned — Evidence — Permitting husband to testify against wife — Act of May 23, 1887, P. L. 158.</p> <p>Ordinarily an appellate court is not concerned to inquire into errors committed on the trial of a case not specifically assigned for review.</p> <p>Where the record shows departure from established rules and procedure, affecting only the rights of the .parties to the action, and no specific complaint is made with respect thereto, the court will assume that the departure was made by and with mutual consent — conventio legem vincit.</p> <p>Where the departure manifests a clear disregard of recognized public policy, or is a violation of express statutory provisions, the appellate court will take notice of the error whether assigned or not. Restrictions so imposed are not subject- to the pleasure of the parties or the power of the courts.</p> <p>The court will take notice of such a flagrant error as permitting a husband to testify against his wife, although the error is not covered by any assignment.</p> <p>At common law husband and wife are incompetent to testify against each other. This rule has never been relaxed; on the contrary, it has been re-enforced and guarded from invasion by statutory enactment.</p> <p>The Act of May 23, 1887, P. L. 158, defining competency, is more than confirmatory of the common law rule; it declares in express terms that neither husband nor wife shall be permitted to testify against each other.</p> <p>The parties to a suit and the trial judge as well are bound to take notice of this prohibition. Connivance by the parties cannot avoid it nor can indulgence by the court.</p> <p>In an action of trespass against a husband and wife, where it is admitted that the actual trespass was committed by the husband, and the husband is called as for cross-examination for the sole purpose of testifying against his wife, it is reversible error for the court to permit him to testify that he was acting as his wife’s agent in the commission of the trespass; and the court will take judicial notice of such error whether it was assigned as error or not.</p> <p>Trespass — Damages—Husband and xoife — Evidence—Question for jury.</p> <p>In an action of trespass against a husband and wife for the wrongful removal of a building which they had erected on a plaintiff’s lot under a mistaken belief as to title, where the husband called as for cross-examination testifies that the lot with the building on it was worth seven times the value of the lot without the building, it is reversible error for the court to give binding instructions to the jury that they should return a verdict for the plaintiff for the difference between the value of the lot with the building on it, and the value of the lot without the building, according to the estimates of value made by the husband in his testimony. The amount of the damages in such a case is a question for the jury and not for the court.</p> <p>Mitchell, C. J., dissents.</p>

<p>Negligence — Railroads—“Stop, look and listen” — Grade Crossing-Contributory negligence — Evidence.</p> <p>The duty of being observant and careful in crossing the track of a railroad does not cease with the mere act of stopping, looking and listening at some point at a safe distance from the track, but continues so long thereafter as danger is reasonably to be apprehended which by proper care can be avoided. One may not determine for himself that point of observation, and because there he neither sees nor hears warning, advance heedlessly upon the tracks of the railroad, without incurring responsibility for any disaster that may ensue.</p> <p>The duty to be observant continues so long as danger threatens. If between the point where the party stops, and the tracks of the railroad, the situation affords opportunity to discover an approaching train, and injury results because of disregard of such opportunity, the original act of stopping cannot operate to relieve the injured party of contributory negligence.</p> <p>In an action by a woman against a railroad company to recover damages for personal injuries sustained at a grade crossing at about 7:30 p. m. of a September evening, a verdict and judgment for defendant will be sustained, where the evidence shows that plaintiff was familiar with the crossing, that had she looked at a point thirty-five feet from the center of the track on which the collision occurred, she could have seen the approaching engine at a distance of 740 feet from her; that instead of advancing slowly and carefully from that point, she started her horse at a trot, passing a point of wider view, committed herself to the tracks, and was struck by an engine with its headlight lighted.</p>

<p>Appeal, No. 310, Jan. T., 1908, by defendants, from decree of C. P. Clearfield Co., Dec. T., 1905, No. 3, on bill in equity in case of Ida Dillon, widow, and other heirs of John B. Dillon v. A. L. Hegarty and W. W. Hegarty.</p> <p>Bill in equity to cancel a paper purporting to be a deed and to remove cloud on title. Before Gtllan, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered a decree declaring the instrument in writing in controversy null and void, and directing it to be stricken from the record as a cloud upon plaintiff’s title.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 386, Jan. T., 1907, by plaintiff, from decree of C. P. Blair Co., Equity Docket C., No. 492, dismissing bill in equity in case of The Taylor & McCoy Coal & Coke Company v. Jesse L. Hartman, Executor of James Denniston, deceased, Jesse L. Hartman, Trustee of Sarah B. Eolkers et al.</p> <p>Bill in equity for discovery. Befor'e Bell, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 112, Jan. T., 1908, by-defendant, from judgment of O. P. Huntingdon Co., Sept. T., 1905, No. 49, on verdict for plaintiff in case of William E. Hough v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for injuries to real estate.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court charged in part as follows :</p> <p>If, in taking this narrow strip, seventy feet long, the defendant destroyed the plaintiff’s access to and from his property, or interfered with it and made it harder to get to and from his home, and by so doing rendered this property less valuable in the market, then the plaintiff can recover to just such an extent as the evidence shows you he has been injured; and in considering this matter you must bear in mind the conditions that existed before, and the conditions that existed after, the said defendant took possession. There was smoke, noise and cinders there before the taking. How much did the increase of these elements, if any, interfere with the access of the plaintiff to and from his property and thereby affect the market value of the property? You must be satisfied that the defendant company took a portion of the plaintiff’s property and interfered with his access to and from his home, and thereby injured him, before you can find for plaintiff. If you find that the defendant company has taken a portion of his land and interfered with his access to and from his property, how much, if any, has the market value of the property been affected ; and, in considering this matter, you must take into consideration the testimony of the witnesses who testified as to the value of the property immediately before and immediately after the taking, taking into consideration any advantages or disadvantages that accrued to the plaintiff.</p> <p>Yerdict and judgment for plaintiff for $1,700. Defendant appealed. •</p> <p>Errors assigned were various instructions.</p>

<p>Appeal, No. 132, Jan. T., 1908, by Ben. J. Hiltner, Administrator of Clara R. Moyer, deceased, a Legatee, from decree of O. C. Centre Co., No. 7,555, dismissing exceptions to auditor’s report in Estate of E. J. Pruner, deceased.</p> <p>Exceptions to report of S. D. Gettig, Esq., auditor.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>JErroi' assigned was in dismissing exceptions to auditor’s report.</p>

<p>Appeal, No. 105, Jan. T., 1908, by Harriet R. Anderson, from decree of O. C. Fayette Co., Dec. Term, 1906, No. 130, dismissing petition for issue devisavit vel non in Estate of William B. Fuller, deceased.</p> <p>Petition for issue devisavit vel non.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the decree refusing the issue.</p>

Appeal, No. 96, Jan. T., 1908, by plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 1,196, dismissing bill in equity in case of John D. Thomas v. Walter A. Borden. Bill in equity for an injunction. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 169, Jan. T., 1908, by defendant, from judgment of C. P. York Co., April T., 1908, No. 28, for plaintiff on appeal from tax assessment in case of Henry M. Schmuck v. Emanuel Hartman et al., Commissioners of York County, and Board of Revision of Taxes for York County.</p> <p>Appeal by the county commissioners of York county from tax assessment.</p> <p>Wanner, J., stated the facts to be as follows:</p> <p>This is an appeal by Henry M. Schmuck, from the decision of the Board of Revision of Taxes, of York county, Pennsylvania, in affirming the action of the county commissioners of said county, who on December 28, 1907, raised the valuation of his personal property for purposes of state taxation, for a period of thirty-two years immediately preceding, to wit, from 1876 to 1907, inclusive.</p> <p>This was done under the supposed authority of sections 11 and 12 of the Act of assembly of June 1, 1889, P. L.-420, because the appellant during that period had not returned to the assessor certain sums of money which he then had invested in mortgages in the state of Ohio.</p> <p>The appellant had fully paid all the state taxes assessed against him each year during the period above mentioned.</p> <p>The county commissioners, having discovered that these returns were too low, and that the appellant had thereby escaped taxation on a larger sum of money, raised his taxable valuation from the several sums returned by him, to the aggregate amounts of said Ohio mortgages as actually held by him, during the several years in question, as follows :</p> <p>Year Original Return Raised Valuation</p> <p>1876 ............... No return...............$ 30,000</p> <p>1887 ............... No return............... 30,000</p> <p>1878 ............... No return............... 59,000</p> <p>1879 ............... No return............... 70,440</p> <p>1880 ............... No return............... 73,040</p> <p>1881 ............... No return............... 80,040</p> <p>1882 ............... No return.-.............. 86,040</p> <p>Year Original Return Raised Valuation</p> <p>1883 ......... No return............... 109,540</p> <p>1884 ......... No return............... 133,040</p> <p>1885 ............ $4,080.:............. 133,160</p> <p>1886 ............ 4,080............... 146,660</p> <p>1887 ............ 4,080............... 172,220</p> <p>1888 ............ 4,700............... 199,300</p> <p>1889 ............ 4,700............... 236,400</p> <p>1890 ............ 5,100............... 233,840</p> <p>1891 ............ 5,000............... 256,040</p> <p>1892 ............ 5,000 ............... 262,740</p> <p>1893 ............ 5,000............... 293,640</p> <p>1894 ............ 5,000............... 391,900</p> <p>1895 ............ 5,000............... 485,433</p> <p>1896 ............ 5,000............... 537,613</p> <p>1897 ............ 5,000............... 571,763</p> <p>1898 ............ 5,000............... 649,433</p> <p>1899 ............ 6,400............... 781,258</p> <p>1900 ............ 6,800............... 799,125</p> <p>1901 ............ 5,900............... 842,115</p> <p>1902 ............ 5,600............... 828,590</p> <p>1903 ............ 5,000............... 804,590</p> <p>1904 ............ 5,000............... 824,875</p> <p>1905 ............ 5,000............... 812,325</p> <p>1906 ............ 6,000............... 802,200</p> <p>1907 ............ 6,000............... 727,020</p> <p>SCHMUCK v. HARTMAN, Appellant. Statement of Facts — Arguments. [222 Pa.</p> <p>It is contended on behalf of the appellant, that this action of the commissioners was illegal. That it was unwarranted by the act of assembly of 1889, and that after the payment of his taxes as regularly assessed, and after the expiration of the year for which they were assessed, it was too late to raise the appellant’s valuation, or to reassess him.</p> <p>The court entered judgment in favor of Henry M. Schmuck.</p> <p>Error assigned was in entering judgment for Henry M. Schmuck.</p>

<p>Executors and administrators — Administrator’s sale — Agreement of administrator as to marketable title — Case stated.</p> <p>Where an administrator in making a sale under an order of court, has agreed in advance of the sale, that before the purchaser shall be required to accept a deed and pay the purchase money, the sufficiency of the title shall be determined through a case stated, and the purchaser relying upon this agreement, bids at the sale, pays a portion of the purchase money, and permits the sale to be confirmed, the purchaser is not entitled thereafter to have a decree entered setting aside the sale and ordering a repayment of the purchase money, on the ground of insufficiency of title, if it appears that no action had been taken by either party in reference to a case stated. All that the purchaser is entitled to is a decree suspending final action, and fixing a time within which a case stated shall be filed in the proper court for the determination of the sufficiency of the title.</p>

<p>Appeal, No. 149, Jan. T., 1908, by defendant, from judgment of C. P. Northumberland Co.. May T., 1907, No. 212, on verdict for plaintiff in case of Lewis A. Latsha v. Shamokin & Edgewood Electric Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Auten, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Defendant presented the following points:</p> <p>1. Under all the evidence in the case your verdict must be for the defendant. Answer: Refused. [1]</p> <p>3. The act of June 10,1907, relating to employer’s liability, is not retroactive and does not apply to this case, because the suit was brought before the passage of the act, and further because the accident occurred prior to the passage of the said act of assembly. Answer: Refused. [5]</p> <p>5. Under the undisputed evidence in the case, the plaintiff is guilty of contributory negligence, and cannot therefore recover. Answer: Refused. [7]</p> <p>6. If the court decline to affirm the defendant’s fifth point, then the court is respectfully requested to charge the jury, that if the jury find that the plaintiff’s car' was entering the curve at the Weigh Scales when Reed’s car was entering the curve at the other end, that the length of the curve was 261 feet, that Latsha’s car could have been stopped thirty-five or forty feet, going at eight miles an hour, that the front door of his car was open at the time of the collision and that one or two steps backward would have protected him from the injury, that the brakes and electrical equipments of his car were in good condition, that the plaintiff did not reverse the current, was going up a slight grade at the time of the collision, then the plaintiff would be guilty of contributory negligence, and cannot recover. [8]</p> <p>7. The proximate cause of the accident was the negligence of Reed, if any, in operating the car at or near the point of the collision. The sending out of the car without notice to the plaintiff was at most the remote cause of the injury or was the mere occasion of the'injury for which the defendant cannot be held liable. Answer: Refused. [2]</p> <p>Yerdict and judgment for plaintiff for $9,000. Defendant appealed.</p> <p>Errors assigned among others were (1, 2, 5, 7, 8) answers to points as above, quoting them; and (3) portion of opinion quoted in the opinion of the Supreme Court.</p>

<p>Will — Conversion of real estate — “Legal share” to widow — Intention— Construction.</p> <p>Testator dying without children gave to his wife “The furniture, pictures, household goods, horses, carriage and house and lot in which we now reside, to have and to hold and enjoy as long as she may desire to live there, after which time I direct that they be disposed of by my executors, and become part of my estate. I also direct the legal share of all my real estate and personal property to be paid to my wife as her share out of my estate.” He gave a money legacy and the “balance” of his estate to relatives. He gave a positive, express and unconditioned direction to his executors to dispose of all of his estate within three years after the testator’s death. Held, (1) that the direction to sell worked an absolute conversion of the real estate into personalty, and (2) that the widow took one-half of the entire estate absolutely, regarded as personalty.</p>

<p>Bail — Recognizance—Forfeiture—Quarter sessions — Common pleas— Discretion of court — Remittance of forfeiture.</p> <p>The court of quarter sessions’ decree of a forfeiture of a recognizance is conclusive in proceedings on the recognizance in the court of common pleas. In the latter court the question of the breach of the recognizance cannot be raised.</p> <p>Under the Act of December 9,1783, 2 Sm. L. 84, the courts of common pleas have a discretionary power to remit a forfeiture of a recognizance, but the Supreme Court will not review the discretion of the common pleas in refusing to remit a forfeiture where the ground for relief alleged was that the defendant appeared at-court and remained until the indictment against him was ignored by the grand jury, and that it had been the uniform and unbroken practice in the county in question to regard the report of a grand jury, ignoring .the bill of indictment, as ipso facto, a discharge of the defendant; and the refusal to review such discretion will be considered by the Supreme Court even more proper where it appears that the case still continued under the control of the court below after the ignoring of the indictment, and was formally continued for action upon it by a subsequent grand jury.</p> <p>The averment in such a case as to the practice in the quarter sessions might have been taken into consideration by the court below as a reason for exercising its legal discretion in moderating or remitting the forfeiture, but it was not required to do so.</p>

<p>Negligence — Master and servant — Evidence—Contributory negligence.</p> <p>In an action against a steel company to recover damages for the death of one of its workmen, binding instructions for defendant are proper where the evidence shows that the deceased worked at a gas making plant which produced two kinds of gas at a machine equipped with two valves; that when one kind of gas was to be produced, one of the valves was to be opened and the other to be closed and that the deceased instead of opening one and closing the other, opened both of them simultaneously, causing a rush of gas which fatally burned him.</p>

<p>Appeal, No. 359, Jan. T., 1907, by plaintiff, from judgment of Superior Court, Oct. T., 1906, No. 227, affirming order of C. P. Schuylkill Co., Jan. T., 1906, No. 36, refusing to take off nonsuit in case of Esther A. Smith v. The Metropolitan Life Insurance Company of New York.</p> <p>Appeal from Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court, and by the report in 34 Pa. Superior Ct. 72.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeals, Nos. 226 and 249, Jan. Term, 1901, by plaintiffs and defendant, from judgment of C. P. Sullivan Co., Sept. T., 1902, No. 49, on verdict in case of W. W. Jackson and Blanche W. Sturdevant, Trustees for the Devisees of Geo. D. Jackson, deceased, and W. W. Jackson, Administrator d. b. n. c. t. a. of the Estate of Geo. D. Jackson, deceased, and Mary B. Young, Alice Irving, Blanche W. Sturdevant and Ida Greene Jackson v. Kush J. Thomson and Walter B. Gunton.</p> <p>Ejectment for land in Cherry township. Before Terry, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Plaintiffs presented this point:</p> <p>1. That under all the evidence in this case the verdict must be for the plaintiffs for the land described in the writ, with whatever mesne profits the jury may find the plaintiffs entitled to as damages for the use and occupation of said land by the defendants. Answer: This point is refused. This would be directing you to find for the plaintiffs for the whole undivided one-third, which would be contradictory of what we have already instructed you. We say you should find for the plaintiffs against Mr. Thompson for three-fifteenths of the land and for that proportion of the mesne profits, but it is for you to say whether there shall be recovery for more than that against him. [1]</p> <p>Defendants presented these points :</p> <p>That there is not sufficient evidence in the case of any breach of trust or fraud on the part of the executors of the last will and testament of George D. Jackson, deceased, in making the conveyance to the defendant, Kush J. Thomson, of the land in suit, on July 9, 1897, and that Kush J. Thomson and the Citizens’ National Bank of Towanda, Pennsylvania, or either of them, participated in such fraud or breach of trust, to warrant the court in decreeing a reconveyance or submitting the question of the validity of said conveyance to the jury. Answer : Refused. [2]</p> <p>4. That under all the evidence in the case the plaintiffs are not entitled to recover. Answer: Refused. [3]</p> <p>5. That under all the evidence in the case the verdict should be for the defendants. Answer: Refused, except as to the defendant Gunton. [4]</p> <p>The verdict of the jury was in favor of the plaintiffs and against the defendant, Rush J. Thomson, for three-fifths of the land described in the writ, being the undivided three-fifteenths of the tract of land described in the writ, and the sum of $24,055.35, in favor of the plaintiffs and against the defendant, Rush J. Thomson, for mesne profits.</p> <p>The judgment was entered against the defendant, Rush J. Thomson, and in favor of the plaintiffs for the sum of $24,055.35, with costs, and in favor of the plaintiffs for three-fifths of the land described in the writ, being the undivided three-fifteenths of the tract of land described in said writ.</p> <p>Errors assigned were (1-4) above instructions, quoting them.</p>

<p>Appeals — Perfecting appeal — Bond—Motion to quash.</p> <p>Where an appeal has been' entered and the writ of certiorari filed in the court below within six months of the date of the judgment or decree appealed from, and it appears that there has been no execution issued or distribution ordered when the appeal was perfected, the fact that a bond was not entered until after the expiration of the six months, is no ground for quashing the appeal.</p> <p>Judgment — Opening judgment — Neglect of court to state reasons — Remitting the record.</p> <p>Where the court below sustains a demurrer to a petition to open a judgment, and discharges the rule to open, without giving any reasons therefor, several grounds of demurrer having been assigned, the appellate court will remit the record to the court below to state its reasons for its action.</p>

<p>Appeal, No. 74, Jan. T., 1908, by defendant, from order of C. P. No. 3, Phila. Co., March T., 1887, No. 147, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Hanhauser, Administrator of the Estate of James Clarke, deceased, v. Pennsylvania & New England Railroad Company.</p> <p>Scire facias to bring in terre-tenant.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Judgment — Railroads—Contractor—Resolution of January 21, 1843, P. L. 367, Act of April 4, 1862, P. L. 235.</p> <p>Where a judgment has been entered by a contractor against a railroad company, and various other railroad companies have been brought in as terre-tenants under scire facias proceedings under the act of April 4, 1862, the court of common pleas of another county sitting as a court of equity has no jurisdiction to entertain a bill in equity filed by a railroad company, successor of the terre-tenants, averring that such judgment was a cloud upon the complainant's title in the county where the bill is filed, and praying that such judgment be decreed to be not a lien upon complainant’s property in the court in which the bill is filled, and for an injunction to restrain the holders of the judgment from making, or causing to be made, by virtue of it, any levy upon said property. In such a ease the situs of the property in no way controls the question of jurisdiction.</p> <p>A judgment in one county is not a lien against property in a second county; if the judgment is transferred to the second county the courts thereof have no jurisdiction to question its validity; and if a testatum fi. fa. issues from the court of the first county to the sheriff of the second county, the courts of the latter county have no control thereof.</p>

<p>Waters — Surf ace waters — Shutting out the surface flow — Improvement of lots — Damnum absque injuria.</p> <p>The owner of a lot in a city or town, in grading and improving the lot may shut out the surface flow upon his lot without any obligation on his part to prevent it from flowing over the adjacent land, or to lead it by artificial or other means to a sewer or other avenue of escape; but in making the improvement he may not proceed negligently so as to do unnecessary damage to others; nor may he obstruct a natural channel for the flow of the water, or a channel that has acquired the character of an easement; nor may he gather surface water into a body and discharge it on the adjoining land.</p> <p>On a bill in equity it appeared that the parties owned adjoining lots on an opened and paved street in a city. The land was on a sloping hillside so that the surface drainage from rain, etc., ran over both lots from the rear to the front. The defendant improved his lot first and in so doing raised the grade in parts. He did not change the character or direction of the flow nor add to the volume of it, except that in consequence of the raised grade the water which had previously spread over the surface of both lots now ran over plaintiff’s. It did not appear that the defendant was negligent in making the improvement, nor that he closed up any natural channel or any channel acquired by easement. Held, that the defendant was not liable to plaintiff for any damages by reason of an increased flow of water on the plaintiff’s lot.</p>

<p>Ejectment — Tax title — Seated and unseated lands — Admission by predecessor in title — Prior ejectment — Evidence.</p> <p>In an action of ejectment where the defendant exhibits a title derived from the treasurer’s sale for taxes assessed in a particular year on the land as unseated, entirely regular in form and long subsequent to the acquisition of the title exhibited by plaintiffs, derived from a like sale, the prima facie is with the defendant, and the burden is on the plaintiffs to prove an allegation made by them that the land was assessed in the same year as seated land as well, and therefore exempt from sale.</p> <p>In such a case assessment lists for the year immediately preceding the year in question and for the two following years are not evidence of the issue raised, but if no prejudice results from their admission, the error is harmless, and a judgment will not be reversed for that reason alone.</p> <p>In an action of ejectment where the defendant relies on a tax sale of the lands as unseated lands in a particular year, and the plaintiffs allege that the lands were assessed on the seated list as well, and therefore exempt from sale as unseated lands, and it is claimed by the defendant that the lands on the seated list, although of the same acreage, and in the name of the same owner were different lands, the plaintiffs may be .permitted to offer in evidence the record of a prior ejectment in which defendant’s predecessors in title were parties, and to show from the pleadings, the request for instructions and the assignments of error in such record, admissions by the defendant’s predecessors inconsistent with the claims set up by defendant. If, however, judgment in such prior ejectment was reversed, and the plaintiff subsequently suffered a nonsuit, the verdict and the judgment are not evidence as to anything, although the pleadings, points and assignments of error are extra judicial admissions of the parties, and as such are evidence.</p> <p>In such a case the admissions of defendant’s predecessors in title, whether made in the pleadings or in the concession of the attorneys of record, are binding upon the defendant because of the privity of title between him and his predecessors. Such admissions, however, are not conclusive so that the court may base binding instructions upon them, but they are evidence for the jury to determine whether the land in question was on the seated list as well as on the unseated list in the same year.</p> <p>Where a writing is not a dispositive instrument, but is put in evidence merely to show an extrinsic fact, it will be for the jury to say what inference is to be drawn therefrom. When documents are offered in evidence as the foundation of an inference of fact, whether such inference can be drawn from them is a question for the jury.</p>

<p>Evidence — Particular fact — Link in the chain — Fraud.</p> <p>Evidence may be legally admissible as tending, to prove a particular fact, which yet by itself is utterly insufficient for the purpose. It may be a link in the chain, but it cannot make a chain unless other links are added. This rule applies particularly to cases of fraud.</p> <p>Facts or circumstances unconnected with the fraud alleged, and which could operate only by means of raising a prejudice against the individual, ought to be excluded. But fraud in its nature eludes the light and walks in ambushes and deceits. Therefore, a latitude, to the extent of a fair connection with the transactions involved, on the part of the actor or actors who are to be affected, is allowed. Fraud is never to be presumed; it must be proved. But it is often most effectively proved by a chain of connected facts and circumstances.</p> <p>In an action of ejectment, where the issue is to determine whether real estate bought from an assignee in bankruptcy was in fact the property of the bankrupt, a verdict in favor of the purchasers will be sustained where a course of dealing is shown between the bankrupt and a corporation in whose name he had placed the title from which the jury could draw the inference that the transaction was intended to defraud the bankrupt’s creditors.</p>

<p>Will — Construction—Latent ambiguity — Evidence dehors the will.</p> <p>A latent ambiguity can only be developed by extrinsic and collateral circumstances, and it is always competent to show that such ambiguity exists. But a discrepancy, or an accordance, between the whole or particular parts of the description, may be shown by evidence dehors to create, or to destroy an ambiguity which is said to be latent, because it is concealed by the will, and disclosed but by extrinsic circumstances. When such latent ambiguity has once been made dehors the will, then the way is open for parol testimony to whatever extent may be necessary to remove it.</p> <p>Will — Construction—Devise—Description.</p> <p>Where a devise contains a plain and certain description of the thing devised, and this is followed by a reference to occupancy as an added description, such reference is to be regarded as a defective description, if it indicates less than what is embraced in the prior plain certain description.</p> <p>Where a description is made up of more than one part, and one part is true, but the other false, if the part which is true described the subject with sufficient legal certainty, the untrue part will be rejected.</p> <p>Where a testator owns two numbered lots, the dimensions of which were known when testator acquired them, and the testator in devising one of the lots to his sister describes it by number, and further states that the lot is the lot “now occupied by my nephew, and the land attached thereto,” and there is no extrinsic evidence in the case to show that another lot had been carved from the original lot, or that the nephew was in possession of less than the original lot, the devise to the sister will be construed as including the original dimensions of this lot.</p> <p>Bes judicata — Title to land — Bents from land.</p> <p>A decree of the orphans’ court determining the ownership of a fund made up of rents from land in dispute, is not res judicata as to the title of the land itself.</p>

<p>Appeal, No. 318, Jan. T., 1907, by-plaintiff, from decree of C. P. Blair Co., Equity Docket D., No. 567, dismissing bill in equity in case of Fred Bland v. The Tipton Water Company, The Pennsylvania Railroad Company and The American Pipe Manufacturing Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Taxation — Corporations—Act of July 15, 1897, P. L. 292 — Bonds.</p> <p>Under the Act of July 15, 1897, P. L. 292, a bank or savings institution which has paid a four mills tax upon the actual value of all the shares of its stock that have been subscribed for or issued, is not required to pay any tax on personal property owned by it in its own right.</p> <p>Where such an institution owns the bonds of a Pennsylvania manufacturing company, the latter company is not required to collect any tax on such bonds and pay it over to the commonwealth.</p>

Appeal, No. 159, Oct. T., 1908, by defendant, from judgment of O. & T. Cambria Co., June T., 1907, No. 3, on verdict of guilty of murder of the first degree in case of Commonwealth v. John Caraffa. Indictment for murder. Before O’Connor, P. J. The opinion of the Supreme Court states the case. Error assigned was the omission on the part of the trial judge to refer in his charge to the evidence as to the prisoner’s good character.

<p>Criminal law — Murder—Self-defense—Burden of proof — Evidence.</p> <p>On the trial of an indictment for murder, the court commits no error in charging on the subject of self-defense, as follows: “If there be a reasonable doubt that any offense has been committed by the prisoner, it operates to acquit, but if the evidence clearly establishes the killing by the prisoner purposely, with a deadly weapon, an illegal homicide of some kind is established, and the burden then falls upon the prisoner, and not the commonwealth, to show that it was excusable as an act of self-defense. If, then, his evidence leaves his extenuation in doubt, he cannot be acquitted of all crime, but must be convicted of homicide in some of its grades, of manslaughter at least.”</p> <p>The burden of proving self-defense is not placed heavily upon one accused of taking life. Sacred as is human life, he is not bound to show beyond all doubt that he was compelled to take it, but is humanely permitted to satisfy the jury by a fair preponderance of the testimony that he killed under circumstances justifying his belief that his own life could not otherwise have been saved. To doubt, however, even to reasonably doubt, that life was taken in self-defense, is not to be satisfied that it was so taken, and when this affirmative defense is left in doubt it has not been established at all as a basis for acquittal. Per Brown, J.</p>

<p>Criminal law — Murder—Insanity—Charge.</p> <p>On the trial of an indictment for murder the trial judge correctly charges on the subject of insanity as follows: “If the prisoner although he labors under partial insanity, hallucination or delusion, did understand the nature and character of his act, had a knowledge that it was wrong and criminal, and mental power sufficient to apply that knowledge to his own case, and he knew if he did the act he would do wrong and would receive punishment; and if, further, he had sufficient power of memory to recall the relation in which he stood to others, and others stood to him, and that the act in question was contrary to the plain dictates of justice and right, injurious to others and in violation of the dictates of duty, he would be responsible; or, putting it in briefer shape, the law is that whether the insanity be general or partial the degree of it must be so great as to have controlled the will of its subject and to have taken from him the freedom of moral action.”</p> <p>Practice — Trial—Charge—Points.</p> <p>A trial judge is not bound to adopt the language of points, but may choose his own form of expression, and if it expresses the law fully and with substantial accuracy nothing further is necessary.</p>

<p>Appeal, No. 276, Jan. T., 1908, by defendant, from judgment of O. & T. Berks Co., Dec. T., 1907, No. 28, on verdict of guilty of murder of the first degree in case of Commonwealth v. Salvatore Garrito.</p> <p>Indictment for murder. Before Endlich, J.</p> <p>Verdict of guilty of murder of the first degree. Defendant appealed.</p> <p>Error assigned was in the following form:</p> <p>The court erred in overruling the defendant’s first additional reason for a new trial, which was as follows:</p> <p>One of the jurors had, before the case was called for trial, formed and expressed an opinion that the defendant was guilty and should be hung, and stated that he hoped he would get on the jury, and that if he would, he would hang him. This was not known to the prisoners or their counsel until after the verdict was rendered.</p> <p>The rule to show cause was discharged.</p> <p>The evidence does not warrant a conviction of murder in the first degree.</p>

<p>Boroughs — Resolutions—Approval of chief burgess — Loan—Invalid loan —Act of May 23,1893, P. L. 113 .</p> <p>The resolution of a borough council authorizing the borrowing of money for municipal purposes, and the giving of a judgment note therefor, must be presented to the chief burgess for his approval and signature, and if this is not done the loan is invalid, and a judgment entered on the note against the borough will be stricken off. In such a case it is immaterial that the chief burgess was present when the resolution was passed, and personally applied to a bank for the loan.</p> <p>While a judgment against a borough entered on a judgment note given for a loan may be stricken off because the resolution authorizing the loan had not been submitted to the chief burgess for his approval, still if the borough intended to contract the loan and actually received the money, the debt is an honest one, and the lender may recover the amount of it from the borough in an action for money had and received.</p> <p>Boroughs — Municipalities—Member of council — Furnishing supplies. The statute which prevents a member of a borough council from profiting by any contract “for the sale or furnishing of any supplies or materials,” to his municipality, does not apply to a case where a borough council authorizes a loan from a bank, and a member of the council authorizing the loan is also a member of the banking association.</p> <p>Judgment — Invalid, judgment — Striking off judgment.</p> <p>As a general rule a judgment, regular on its face, will not be stricken off, but when it is entered wholly without authority it may be stricken off, for it is no judgment at all so far as it affects the rights of the defendant.</p>

<p>Appeal, No. 70, Jan. T., 1908, by plaintiff, from judgment of C. P. Luzerne Co., Nov. T., 1905, No. 88,- for defendant non obstante veredicto in case of Conoy Township Supervisors v. York Haven Electric Power Plant Company or York Haven Water & Power Company, owners or reputed owners.</p> <p>Scire facias sur tax lien. Before Hassler, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>At the trial the jury returned a verdict for plaintiff for 11,875. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Constitutional law — Title of act — Special legislation.</p> <p>The Acts of April 20, 1905, P. L. 237, and April 25, 1907, P. L. 104, relating to appropriation of turnpikes for public use free of tolls, and the maintenance thereof by counties, cities or boroughs, are constitutional.</p>

<p>Appeals, Nos. 178 and 179, Oct. T., 1908, by defendants, from judgment of C. P. Westmoreland Co., Nov. T., 1907, No. 544, on verdict for plaintiffs in case of Loretta Davis, minor, by her next friend and father, John E. Davis, and John E. Davis, in his own right, v. Westmoreland County Railway Company.</p> <p>Trespass to recover damages for personal injuries to a child two years and three months old. Before Doty, P. J.</p> <p>At the trial it appeared that on August 12, 1907, the mother of Loretta Davis left Loretta in charge of another daughter, ten years old, and went on an errand. The father of the child, John E. Davis, was at the time at work in the mines where he was employed. During the absence of the parents Loretta was run over by an electric car and seriously injured. There was evidence that immediately before the accident, the motorman’s attention had been diverted by a little girl running parallel with the tracks, and in somewhat dangerous vicinity to them.</p> <p>Verdict and judgment for Loretta Davis for $2,000 and for John E. Davis for $800. Defendants appealed.</p> <p>Error assigned was in refusing binding instructions for defendants.</p>

<p>Appeal, No. 18, Oct. T., 1908, by defendant, from judgment of the Superior Court, April T., 1907, No. 63, affirming order of C. P. Lawrence Co., March T., 1906, No. 97, overruling demurrer to claim in case of Pulaski Township Poor District v. Lawrence County.</p> <p>Appeal from Superior Court.</p> <p>Rice, P. J., filed the following opinion :</p> <p>The question involved in this case is the constitutionality of the Act of March 6, 1903, P. L. 18, or to be more exact, the constitutionality of those parts of the act which provide for the relief of needy, sick and indigent persons, who have no known legal settlement within the commonwealth, at the expense of the county where relief is required. It may be surmised that the draftsman of the act had particularly in mind counties not operating under the Act of June 4, 1879, P. L. 78, the constitutionality of which was upheld in Rose v. Beaver County, 20 Pa. Superior Ct. 110; s. c., 204 Pa. 372. But the words of the act are broad enough, and must be construed to cover all counties in which a poor or almshouse for the support, care and shelter of the needy and indigent is not maintained, either by general or local law, by and at county expense. It is claimed that the effect of the qualifying words is to limit and restrict the provisions of the act to a particular class of counties, and, therefore, they are in contravention of sec. 7, art. 111 of the constitution, which declares that the legislature “Shall not pass any local or special law regulating the affairs of counties, cities, townships, wards, boroughs or school districts.” But, as in the counties to which it is claimed the act does not apply, the duty of furnishing relief to the class of poor persons described in the act who have no known legal settlement in the commonwealth was already devolved by law upon the county, it is apparent that the immediate effect of the act was to promote uniformity, by putting all other counties upon the same basis so far as that general duty is concerned.</p> <p>But until every county of the state has taken advantage of the provisions of the act of 1879, there must of necessity be diversity of method of caring for the poor between the counties that have taken advantage of its provisions and those in which the poor district system is retained. For example, in the former, orders of relief and removal are granted to and upon the county commissioners, and in the latter, to and upon the directors or overseers of the poor of the proper district. In the present case an order of relief issued to the overseers of the poor of the township poor district, and, it is admitted by the demurrer, that the person from whom it issued had no known legal settlement' in the state. Under the act of 1903, it became the duty of the county commissioners, from and after notice from the overseers of the poor, either to take charge of him and furnish the needed relief, or, in the event of their election not to do so, to reimburse the poor district the amount necessarily expended. The result is to compel the county to bear the expense of relief. The same result would have been reached, but by a different method, if the county, having availed itself of the privilege of the act of 1879, were operating under its provisions. This diversity of method of accomplishing the same result in this particular class of cases, necessitated by the fact that under the operation of a valid and constitutional statute there are in some counties poor districts and overseers of the poor and in others the whole county is a single poor district, and its affairs are administered by the county commissioners, is not a valid reason for declaring the act of 1903 a local or special law within the prohibition of the constitution. In support of this conclusion we refer to Lehigh Valley Coal Co.’s Appeal, 164 Pa. 44, with the doctrine of which, we think, it is in full accord.</p> <p>But, in determining whether an act is local or special within the prohibition of this section not only present results, but possibilities must be considered: Frost v. Cherry, 122 Pa. 417. Hence, if the act must be construed as permanently excluding from its operation all counties which at the time of its enactment were operating under the act of 1879, or similar laws, the legal possibility of local and special results being accomplished by it upon repeal of those laws is apparent. We think it clear, however,:that, the words of the act do not require such construction, if any. attention whatever is to be given to the sound principle, that where the. legislative intent is not to evade the restrictions the courts are not required to be astute in extending them over cases not really within the evil prohibited, though the form may have the appearance of coming within the literal words of the constitution: Commonwealth v. Gilligan, 195 Pa. 504. As the learned compiler and annotator of the last edition of Purdon’s Digest well says, and as the authorities abundantly show, there is a marked distinction between inclusive and exclusive provisions under this section: 1 Stewart’s Purdon’s Digest, 153. Assuming the legal possibility of a repeal of the act of 1879, and of all local or special laws under which particular counties are now charged with the duty of supporting, earing for and sheltering poor persons needing relief, the result would be to re-establish the poor districts in such counties. When that change occurs, if it ever shall, and the duty is again cast primarily on the poor districts, there is no clause or provision of this act which twill exclude any of those counties from its operation.- On the contrary, it will at once become operative throughout the state, without any change or amendment thereof. As already stated, the immediate effect of the act is to promote uniformity, not to produce local or special results that are forbidden by the constitution, and it does not appear that it can by any possibility have the latter effect in the future. This being so, the same principles that sustained the legislation construed in Evans v. Phillipi, 117 Pa. 226; Reading v. Savage, 124 Pa. 328, and kindred cases, is applicable here.</p> <p>It is argued, further, that the act is special, and, therefore, invalid, because it divided paupers into two classes, namely, those without a settlement in this state or whose settlement is unknown, and those who have a settlement, and establishes a different rule as to the relief of each class. But there are obvious reasons which might properly move the legislature to conclude that it would be just and expedient to shift the burden from the poor district into which a poor person without legal settlement there or in any other poor district of the state, might chance to come, to the county, which would not hold good in the case of a poor person who has a legal settlement in some poor district of the state to which he can be removed. There is no provision of the constitution which so ties the hands of the legislature that it cannot do the former, unless it also relieves all poor districts of the burden of caring for the poor who have legal settlements therein and casts it on the county. This, it seems to us, does not require discussion.</p> <p>The judgment is affirmed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Negligence — Runaway team — Nonsuit.</p> <p>The mere fact of a runaway does not by itself imply negligence, nor would even leaving a team standing in a private lane do so.</p> <p>In an action to recover damages for personal injuries, a nonsuit is properly entered where the plaintiff testifies in effect that when he passed a lane leading from defendant’s house to a public road, he saw the team of defendant standing-in the lane, and a man standing at the head of the horses; that he drove slowly past the end of the lane, and when he had gotten 180 or 200 feet down the road, he heard a warning to “look out,” and immediately afterwards was struck by the runaway team.</p>

<p>Appeals, Nos. 164 and 165, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., Nov. T., 1907, No. 9, on verdict for plaintiffs in case of M. G. Guthrie and Elizabeth Guthrie, his wife, v. The Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before McIlvaine, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for M. G. Guthrie for $3,000 and for Elizabeth Guthrie, $7,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeals — Divorce—Amount in controversy — Superior Court.</p> <p>From a decree allowing counsel fees and alimony in divorce the appeal lies to the Superior and not to the Supreme Court, and this is the case although the amount allowed is in excess of 11,500..</p>

<p>Appeal, No. 331, Jan. T., 1907, by plaintiff, from judgment of C. P. Sullivan Co., May T., 1903, No. 68, on verdict for plaintiff in case of William L. Woodruff v. Walter B. Gunton.</p> <p>Assumpsit for royalties under a coal lease. Before Terry, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the court charged in part as follows:</p> <p>[Now the plaintiff has called on the stand witnesses who are familiar with the process of mining anthracite coal, mining engineers, and you have heard their testimony. In substance it is that the production of culm is a necessary incident in the process of mining. That is, their testimony in effect is, that in the mining and preparation of prepared sizes of coal you will necessarily produce culm; and the contention of the plaintiff is that that being so, that in the mining and preparation of prepared sizes this culm resulting, why, they say, it is a matter of no expense to the operator, to the defendant here, and that if he has had no expense in producing it therefore, when he sells it, it is all net profit or practically so. The only item of expense which the plaintiff admits should be charged against the selling price of the culm, is as I have stated to you, that stated by Mr. Smith to the effect that it would cost to load the culm, after it is separated from the run of mine, about iVo of a cent, or practically a cent a ton to load it, and the contention of the plaintiff is, that that is all the expense that attends the production of culm.</p> <p>Now we think you understand from what we have stated, and from the testimony of the witnesses and the comments of counsel, this position fully. If you are satisfied of the truth of that proposition, from the testimony in the case, then you will be justified in finding for the plaintiff the price received by the defendant in the sale of the culm, for all that he has •thus sold, less of a cent per ton expense. I think the plaintiff in his statement has not allowed that, but if you find that to be true you may make that allowance.</p> <p>Now if you are not satisfied that plaintiff’s contention is correct, if you are not satisfied of the proof of his contention in this respect, that culm is a necessary incident in the process of mining, but you believe the defendant’s story that in the production of this culm it cost him, as he has stated to you, a certain part of a dollar to get it, I have forgotten the amount that he stated, I think the highest figure was some seventy or eighty cents, if you are satisfied from his explanation of the process of mining as it took place in this mine, that this culm cost him to get it to the surface some seventy or eighty cents a ton, then that cost should be a charge against the culm account and if he sold the culm for less than that amount, or less than it cost, there would be no net profit upon it. If. you accept that theory, why, the plaintiff should not recover here for any net profit on culm; you should bear in mind all the time that it is net profit to which the plaintiff is entitled. Not gross profit, but net profit.</p> <p>Now we leave this contention to you as a matter of fact. Which is the more reasonable? Which impresses you as being the true one? You will consider all the testimony and adopt that which you believe to be true and which you believe to be supported by reason and the evidence.] [1]</p> <p>Defendant presented these points:</p> <p>1. That under the terms of the lease the plaintiff is entitled to receive one-third of one-tenth of the net profit made by the defendant on culm sold by him. The amount of net profit is to be ascertained by deducting the cost of production from the price for which it was sold. If the jury believe under all the evidence in the case that the cost of mining and producing culm by the defendant equaled or exceeded the price for which it was sold there is nothing due the plaintiff on that account. Answer: This point, gentlemen, we do not affirm, because this also asks us to decide, in a measure, questions of fact. This point requests us to say to you that the net profit is to be ascertained by deducting the cost of production from the price for which it was sold. That might include the cost of mining the coal and taking it to the surface; as to that, you will recall, there are two contentions here: one by the plaintiff that the mining of culm was a necessary incident to the process of mining run of mine coal and that theory we have explained to you. We have also explained to you the opposing theory of the defendant and therefore leave- it to you as a question of fact. We cannot affirm this point, because it would be contradictory of our general charge. We do say to you now, in answer to this point, as we said-in our general charge, that from the selling price of culm should be deducted the cost which attended the culm after it became culm, and the only evidence as to that in this case is the testimony of Mr. Smith, who stated that such expense was ^5- of a cent per ton. [2]</p> <p>2. Under the evidence in this case the plaintiff is not entitled to recover interest on the deferred payment. Answer: This point is refused. [2]</p> <p>Verdict and judgment for plaintiff for $4,327.46. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, and answers to points, quoting them.</p>

<p>Mines and mining — Coal lease — Minimum royalty — Making up deficiencies in minimum royalty.</p> <p>Where a coal mining lease provides for the payment of a minimum royalty and the payment of a .certain sum per ton for all coal mined in excess of the tonnage upon which the minimum royalty is based, and there is no provision in the lease that a deficiency in the minimum royalty for one year shall be made up in subsequent years from coal mined in excess of the tonnage on which the minimum royalty is based, the lessee cannot recoup himself for the deficiency in the minimum royalty which he has had to make good in one year by mining the deficiency in a subsequent year without paying therefor. The lease in such a case is an agreement to pay a fixed sum at a fixed time during a fixed period for the privilege of mining the coal on the land leased.</p>

<p>Appeal, No. 1, Oct. T., 1908, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1905, No. 88, on verdict for plaintiff in case of Mary Dignan v. Altoona Coal & Coke Company.</p> <p>Trespass to recover damages for injuries to surface of land. Before O’Connor, P. J.</p> <p>At the trial it appeared that on January 28, 1887, Mary Dig-nan granted to the defendant’s predecessor in title, for the sum of 82,500, certain coal in Gallitzin township.</p> <p>The material portions of the grant were as follows:</p> <p>“All the coal and other minerals, lying or being in, upon or under all that certain piece or parcel of land situate in the township of Gallitzin, County of Cambria and State of Pennsylvania, bounded and described as follows, to-wit: Beginning at a post, thence South sixty-five degrees East ninety-one perches to a post, being a corner of the land of Henry Bendon, thence along the line of said land North thirty-four degrees east one hundred and sixty-one perches, thence North sixty-five degrees West eighty-nine perches to a post, thence South thirty-four degrees West one hundred and eighty perches to the place of beginning. Containing one hundred and six acres more or less. Being the same premises which James McHugh and Susan C. McHugh by their deed bearing date the Eighth day of June, A. D. 1861 and recorded in the office for recording deeds &c. in and for said County of Cambria in Record Book Vol. 19, page 326 &c. sold and conveyed to the above named grantor. And the said party of the second part is hereby granted the full and exclusive privilege, right and liberty of entering at will upon said land and searching for, quarrying and mining, raising, delivering, taking and carrying away said coal and other minerals, such mining operations however are not to interfere with the surface of said land, which the said party of the first part reserves and is not conveyed by these presents, excepting the right privilege and liberty which is hereby granted to the said party of the second part of sinking a shaft on said premises for an air passage or opening into such mines as may be opened and used thereon, also the right and privilege of sinking a shaft'for the purpose of pumping out and up such water as may interfere with the mining operations upon said land with the privilege of erecting thereon such building or buildings as may be necessary and incident to said pumping of water from said mines the air and water passages referred to above are not to be erected or opened within two hundred yards of the house and barn on the premises herein described; the said party of the second part to have free ingress, egress and regress through and underneath said premises for the purpose of mining, removing, shipping and transporting said coal and other minerals; and all of the said rights, liberties and privileges to be used and exercised without any liability for damages arising or resulting from the use and exercise of the same as aforesaid, and possession is hereby given to the party of the second part, his heirs, executors, administrators or assigns for the purpose above receited.”</p> <p>The defendant presented the following point:</p> <p>That under the deed from Mary Dignan to David McCoy, dated January 28, 1887, conveying to said McCoy all the coal and other minerals in and under the piece or parcel of land therein described, together with the mining rights and privileges therein mentioned, and set forth in plaintiff’s statement in this case, and being the same deed offered in evidence by the plaintiff, the defendant is released from "any liability for damages arising or resulting from the use and exercise” of the rights and privileges therein mentioned, and is thereby released from any liability for damages arising from the mining and removal of all the coal under said land, including the pillars. And the plaintiff is not entitled to recover in this action for loss of water or injury to the surface of his land caused by the mining and removal of the pillars, and the verdict of the jury must be for the defendant. Answer: Refused. [1]</p> <p>Verdict and judgment for plaintiff for $3,417. Defendant appealed.</p> <p>Error assigned among others was above instruction, quoting it.</p>

<p>Appeal, No. 192, Oct. T., 1908, by plaintiff, from order of O. P. Cambria Co., June T., 1904, No. 250, refusing to take off nonsuit in case of A. C. Lyttle v. J. B. Denny.</p> <p>Trespass to recover damages for personal injuries. Before O’Connor, P. J.</p> <p>The facts 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>Errors assigned were (1) in refusing to admit certain depositions, and (4) in refusing to take off nonsuit.</p>

<p>Appeals — Assignments of error — Insufficient assignment — Order of the court — Eeceptions.</p> <p>An assignment of error to the refusal of the court to grant a change of venue will not be considered where neither the order of the court, nor .an exception thereto, is set forth in the assignment.</p> <p>An assignment of error which quotes the ruling of the court upon one question, and gives the answer of the witness to another question, under another ruling, not assigned for error, is improper and will not be considered.</p> <p>Negligence — Waters—Injury to dam — Deposit of debris — Independent contractor.</p> <p>In an action against a railroad company to recover damages for the alleged negligent deposit of debris in plaintiff's dam, resulting from the construction of bridges in the stream above the dam, the defendant cannot claim immunity on the ground that the construction of the bridges had been done by an independent contractor, where it appears that the company had accepted the work of the contractor with full knowledge of the condition in which he had left the bed and banks of the stream.</p> <p>If an employer at the time he resumes possession of work from an independent contractor, knows or ought to know, or from a careful examination may ascertain that there is any defect in the work, he is responsible for any injury resulting therefrom to a third person by the defective performance of the work.</p>

<p>Arbitration — Conduct of arbitrators — Exceptions—Appeal.</p> <p>A defendant in an arbitration cannot object to the award, because of alleged misconduct of the arbitrator where it appears that his counsel was present at the arbitration, knew what the arbitrators did, entered no objection whatever to their conduct, but continued the arbitration until the cause was fully heard and disposed of.</p> <p>Where the defendant in an arbitration files exceptions to the award, and at the same time appeals from it, the appeal remands the case to the common pleas, and thereafter it is immaterial what disposition is made of the exceptions so far as it affects the subsequent trial of the cause.</p> <p>Practice, C. P. — Trial—Continuance.</p> <p>Where a case was placed on the trial list on April 18, and is called on the first day of June the trial judge cannot be convicted of error in refusing to strike the case from the trial list, and this is especially so where it appears that the cause had been pending for over five years, had been tried several times in the common pleas, and had been three times in the Supreme Court.</p> <p>Change of venue — Newspaper comments — Practice, C. P.</p> <p>Where a defendant railroad company applies for a change of venue, the burden is upon the company to show to the satisfaction of the court that it would not have a fair and impartial trial in that jurisdiction.</p> <p>The appellate court will not review the action of the trial court in refusing a change of venue because of alleged adverse comments of newspapers where it appears that the case had been tried four times with resulting verdicts of substantially the same amounts, and that the counsel for the defendant had invited discussion by replying in a lengthy article to the first comment on the case made by the press.</p>

<p>Negligence — Railroads—Highway crossings — “Stop, look and listen”— Instruction — Harmless error.</p> <p>Where the'defendant in a grade-crossing case asks the trial judge to charge that a person entering upon five tracks of a railroad, must look and listen even after crossing the third track, and the trial judge denies the request, saying that it is not the law that a person is bound to stop, look and listen, between the several tracks, the appellate court will treat the error as harmless, and not reverse the judgment, when it appears that two other points were submitted by the defendant each defining virtually the same standard of duty as was asserted in the first, and both of which were unqualifiedly affirmed.</p> <p>Negligence — Railroads—Grade crossings — Witnesses—Opinions—Expert.</p> <p>Witnesses who are familiar with a particular grade crossing and have frequently seen trains passing upon it, though not experts, may be permitted to testify that so far as they could judge a particular train was running at a rate which was usually maintained at the crossing when the safety gates were closed.</p> <p>Practice, C. P. — Amendments—Parties—Parent and child — Death of child — Addition of mother’s name — Trespass for negligence — Use plairotiff.</p> <p>Where an action in trespass is brought in a father’s name for the negligent killing of a child, the mother’s name may be added by amendment as a party plaintiff, even after the case has been appealed and reversed, and is called for a second trial.</p> <p>Where a judgment in trespass in favor of a father for the death of a child is marked to the use of another, and subsequently the case is reversed, and upon trial the name of the mother is added by amendment, omitting the name of the use plaintiff, the omission is not a ground for claiming surprise, and continuance of the case is properly refused.</p> <p>In such a ease the cause of action is in the legal plaintiffs alone, and the use plaintiff, if he has any rights whatever in the action, can recover them only as the cause of action in the legal plaintiff is established on the trial. It is not the right of recovery in any use plaintiff that defendant is called upon to meet, but the right of the legal plaintiff.</p>

<p>Insurance — Fire insurance — Conditions of policy — Waiver—Parol waiver — Proofs of loss.</p> <p>An insurance company may waive a compliance with any condition of a policy to be performed and observed by the insured, except when the insured by the act loses his insurable interest. The condition is inserted in the policy for the benefit of the insurer, and hence there is nothing to prevent the company from waiving it whenever it may desire. This may be done expressly or by implication; and in either case the company thereafter cannot insist upon a performance of the condition. The law will not permit it to mislead or deceive the holder of its policy by any act or conduct on its part, and thereafter, to his detriment, insist upon full performance of a condition which it has waived.</p> <p>An insurance company may waive a condition in a policy by parol although it contains a stipulation that there shall be no waiver of any condition except by an express agreement indorsed on the policy.</p> <p>When an insured in good faith transmits to the insurer what he terms sufficient proofs of loss within the time required in the policy, it is the duty of the insurer, if such proofs for any reason are unsatisfactory, to promptly notify the insured, setting forth wherein the proofs do not comply with the conditions of the policy, and thereby give the insured an opportunity to rectify his mistake. Silence on the part of the insurer for any considerable time after the receipt of such proofs of loss, will be taken to be a waiver of the necessity for any further proofs of loss, and such proofs furnished by the insured will be held to be a compliance with the condition of the policy.</p> <p>Where an insured sends his proofs of loss in due time and they remain in the possession of the company, and he receives no notice from the company of any objections to the proof nor that they are not in due form and in strict compliance with the policy, and he writes to the company asking if further proofs are desired, without receiving a reply, and interviews are had with the adjusters at which nothing is said about proofs of loss, a jury is justified in finding that the silence of the company until the bringing of the suit constitutes a waiver of the right to demand other or further proofs of loss.</p> <p>Where an insured and the insurance company signed a nonwaiver agreement fifty days before the expiration of the sixty days within which proofs of loss were required to be filed, and the insured filed proofs of loss subsequent to the nonwaiver agreement and within sixty days of the fire, and the insurance company by its conduct showed that it does not require other proofs of loss to be filed, the nonwaiver agreement cannot be used to defeat the insured’s allegation of waiver. In such a case as either party could waive his rights under the policy so he could do so under the contract.</p> <p>Insurance — Fire insurance — Stock of goods — Sale—Sole ownership.</p> <p>Where it appears that a person insuring a stock of goods obtained sole possession of them from their owner under an agreement under which he was required to replace them, if he sold them, or to pay the owner for them at a time specified in the agreement, and the previous owner had under the agreement no control whatever over the goods, and no right to repossess himself of them, the insured has an “unconditional sole ownership ” within the meaning of such words as used in a policy of fire insurance.</p>

Appeal, No. 92, Oct. T., 1908, by plaintiffs, from decree of C. P. Cambria Co., March T., 1905, No. 3, dismissing bill in equity in case of Herman Haupt and George B. Stineman v. David E. Unger and Catherine M. Unger. Bill in equity for specific performance. Before O’Con-nor, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was decree dismissing the bill.

Appeal, No. 20, Oct. T., 1908, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1905, No. 173, on verdict for plaintiff in case of W. H. Foster for use of Merchants’ Trust Company of Greensburg v. John W. Allshouse. Issue to determine the validity of a judgment. Before McConnell, J. . The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff. Defendant appealed.

Appeal, No. 207, Oct. T., 1908, by defendant, from judgment of C. P. Westmoreland Co., Feb. T., 1908, No. 648, on verdict for plaintiff in case of Derry Coal & Coke Company to use of E. F. Saxman v. H. S. Kerbaugh, incorporated. Trespass to recover damages for injuries to houses. Before Van Swearingen, J., specially presiding. At the trial the court refused binding instructions for defendant. Verdict and judgment for plaintiff for $1,600. Defendant appealed.

<p>Taxation — Road tax — Township—“Last adjusted valuation” — Act of April 12, 1905, P. L. 142 — Equity—Act of April 15, 1834, P. L. 509.</p> <p>Under the Act of April 12,1905, P. L. 142, there is no “last adjusted valuation for county purposes ” from which a road tax may be levied by the supervisors of a township, until the county commissioners have examined and corrected the assessor’s return and the board of revision has given the taxpayer an opportunity to be heard. As long as the valuation returned by the assessor is open to correction by the board of revision it cannot be said that the valuation has been adjusted by the board of revision.</p> <p>While the Act of April 19, 1889, P. L. 37, authorizes an appeal to the common pleas from the final adjudication of the board of revision, the appeal is not a supersedeas and does not prevent the collection of the tax. If the valuation is reduced, the excess of taxes is returned to the person who paid them.</p> <p>Under the facts of this case, a court of equity has jurisdiction to restrain the supervisors of a township from levying a road tax on a valuation of property which is not “the last adjusted valuation for county purposes.” The Act of April 15, 1834, P. L. 509, affords no adequate remedy of law in such a case.</p>

<p>Insurance — Accident insurance — Immediate notice — Question for jury— Reasonable time.</p> <p>In. an action upon a policy of accident insurance requiring immediate notice to be given of an accident, the word “immediate” is to be construed as meaning a reasonable time after the accident under the facts and circumstances of the particular case.</p> <p>The court is justified in ruling as a matter of law that notice has not been given in time only where the admitted facts and circumstances disclose nothing by way of extenuation or excuse.</p> <p>Where a passenger on a railroad train, struck by a cinder in the eye, experiences no immediate ill results, but five weeks afterwards is informed by a physician that a cataract is forming on his eye as a result of the accident, and notice is thereupon immediately given to an accident insurance company in which the passenger was insured, the question whether the notice was given within a reasonable time under the circumstances, is a question for the jury.</p> <p>Where a person insured in an accident insurance company gives a notice, sufficient in form, of an accident to himself, and the company denies all liability on the sole ground that the notice was too late, but subsequently sends the insured a blank form with a letter in which, while denying liability, and not admitting any waiver, it requested the insured to state the facts on the form so that if he had any equity it might be ascertained, the blank filled out by the insured, in form a sufficient proof of loss, is for the consideration of the jury as one of the elements in the case.</p> <p>While courts will extend all reasonable protection to insurers, by allowing them to hedge themselves about by conditions intended to guard against fraud, carelessness, want of interest, and the like, they will nevertheless enforce the salutary rule of 'construction, that as the language of the conditions is theirs, and it is therefore in their power to provide for every proper case, it is to be construed most favorably to the insured.</p> <p>An unqualified refusal by an insurance company to pay a loss based on facts within the company’s knowledge, and made under such circumstances as- to justify the insured in believing that the rendition of proofs would be a vain act, and that they would not be examined, is equivalent to an express agreement of waiver.</p> <p>Where an accident insurance company denies all liability on the sole ground that notice of the accident had not been sent in time, it cannot set up as a defense to the policy that the proofs of loss had not been furnished.</p>

<p>Appeal, No. 135, Oct. T., 1908, by plaintiff, from judgment of C. P. Jefferson Co., April T., 1901, No. 194, for defendant non obstante veredicto in case of Catherine Schlemmer, now Catherine Craig, v. The Buffalo, Rochester & Pittsburg Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Reed, P. J.</p> <p>At the trial it appeared that the action was brought to recover damages for death of plaintiff’s husband employed as a brakeman by the defendant. The accident happened between eight and nine o’clock on the evening of April 5, 1900, while the deceased was attempting to couple a caboose to a steam shovel attached to the rear of a train of seventeen cars. It was shown that the coupler on the steam shovel was somewhat unusual in form, but it also appeared that the deceased was an experienced brakeman. The evidence tended to show that the deceased had knowledge of the character of the coupler, and knew that if he got his head or any part of his body between the ends of the cars, in attempting to make the coupling, it would be crushed. A yard conductor advised the deceased to push the caboose up by hand to the steam shovel, and when the deceased rejected this advice he was told twice to get down and keep down, so as not to get caught in the crush between the cars. In spite of this warning the deceased did not keep his head down, and it was caught between the ends of the cars and crushed. The jury returned a verdict in favor of the plaintiff for $10,000. The court subsequently entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 43, Oct. T., 1908, by plaintiffs, from judgment of C. P. Forest Co., Sept. T., 1905, No. 5, on verdict for defendants in case of T. D. Collins et al. v. L. S. Clough et al.</p> <p>Ejectment for 1,200 acres of land in Kingsley and Howe townships. Before Thomas, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>At the trial when W. W. Whitekin, a witness for the plaintiff was on the stand, he was asked the following questions:</p> <p>“Q. Did you find a line running the official course? A. Yes, sir. Q. From that spruce? A. Which spruce have you reference to? Q. That spruce at the western corner of 5266? A. I didn’t find any original lines, I found a more recent line. Q. Do you know from the appearance of that line, who ran it. A. I would say Richard Irwin. Q. Where did that line lead? A. It led north forty-five degrees east for 595 rods according to my measurement and stopped on the northeastern line of what is shown on the map as No. 5236. Q. Is there any original work on that line? A. There was none. Q. Was there any original corner when you reached the northeast line? A. There was not. Q. Now where is the black oak located with reference to that point of it striking the line? A. I never saw the black oak. Q. Do you know where it is claimed to be? ”</p> <p>Objected to as incompetent and irrelevant.</p> <p>“Q. Did anybody ever point it out to you, the location of that black oak that would be the northern corner of 5266? A. Not on the ground, no, sir. Q. Did anybody off the ground ever tell you where it was?”</p> <p>Objected to.</p> <p>“Q. Did anybody ever tell you where that black oak was located? A. Yes, sir.”</p> <p>Mr. Cole: 1. We propose to prove by the witness that he knew Mr. Irwin, that he was a surveyor of large experience in this county, that he survyed on the land and lines to which the testimony of the witness refers, that he furnished him field notes and that with the use of these field notes the witness went upon the ground and located the lines, or some of them, to which he has testified, finding the field notes corresponding with the location which he has given. For the purpose of showing that Judge Irwin had actually examined these lines and had knowledge of them.</p> <p>2. Also propose to show that Richard Irwin, in the conversation referred to and also by field notes, identified the point marked on the map as the Irwin Beech, as the easterly corner of 5266 and the point marked as the Irwin Black Oak as the northeastern corner thereof. This testimony to be followed by the testimony of other persons including the son of Richard Irwin, who was himself a surveyor, who has had custody of his father’s field notes since his death, to prove that his father identified the Irwin Beech so called and the Irwin Black Oak so called as the original corners at the northeasterly end of 5266'.</p> <p>3. Also to prove by that witness that the line dating to 1836 is the line with the peculiar marks of Richard Irwin, his father, and to prove that he did in fact run that line in 1836 from the spruce, the southeasterly corner of 5266 to the Irwin beech so called, the easterly corner thereof, and that he then and subsequently located 5266 by his survey as located by the plaintiffs and on their map and by the witness on the stand.</p> <p>This testimony also to be supplemented by a draft made by Richard Irwin in his lifetime showing the location to which this offer refers, as being identical with the location claimed by the plaintiffs and exhibited by the map.</p> <p>Objected to as incompetent and irrelevant.</p> <p>The Court: We will allow you to show what Richard Irwin said while upon the ground or in the presence of any of the marks on the lines, and we will permit this witness to testify to what he did on the ground in pursuance to anything that Richard Irwin told him, but as to statements that Richard Irwin may have made to this witness not on the ground, the objection is sustained and exception sealed for the plaintiffs.</p> <p>To so much of the ruling as allows the witness to tell what he did in pursuance of the conversation he had with Richard Irwin, exception is sealed for defendants. [1]</p> <p>S. D. Irwin recalled, examined by Mr. Cole and testified as follows:</p> <p>“Q. What was your father’s business? A. He was a'surveyor. Q. State whether or not he held any official position as surveyor? A. He did, for a number of years he was deputy surveyor. Q. That is, deputy surveyor under the state? A. Yes, sir, he signed his papers 'D. S.,’ deputy surveyor for a good many years. Q. How long did that continue? A. Well, it was for quite a number of years, I can’t remember exactly. Q. What would you say as to whether he held that position in 1836?”</p> <p>Objected to as incompetent.</p> <p>The Court: If he knows, I think it would be competent to show it. Objection overruled and exception sealed for defendants.</p> <p>“Q. State whether he was the deputy surveyor in 1836? A. Well, I believe he was. Of course, I wás born in 1835, and I refer to papers entirely that I have seen. I know’ that he surveyed in all counties around, and worked as deputy surveyor a great deal. Q. What counties did he survey in, starting from the time the witness knew? A. Crawford, Clarion, Warren and Mercer. And surveyed in Warren county, north to the state line, in New York. He and his uncle surveyed that along about 1818 or ’20. Of course I know my maps and what he showed me, etc. Q. Did you have a conversation with him concerning the location of 5266, and 5282, and, what is known as the Mead base line or division line?”</p> <p>Objected to.</p> <p>Mr. Murray: It appearing by the witness that he is the son of Judge Irwin and that he was a surveyor of large experience, and it having also appeared that he surveyed the land in question, it is proposed, to prove by the witness, that in the year 1865 and 1866, when the witness went upon the ground to do surveying himself upon the line and land in dispute, that he had a conversation with his father, Judge Irwin, in which he referred to the beech, the easterly corner of 5266, as alleged by the plaintiffs and as shown on plaintiffs’ map, and the black oak, the northeasterly corner of the same survey, as claimed by the plaintiffs and shown by their map, that his father stated to him that these were the northeasterly boundary of 5266. It is also proposed to follow this testimony with testimony from the witness on the stand, that with this information, he went upon the land and located the comers designated by his father and traced the line made by his father, leading from the beech to the hemlock, being the southeasterly line of 5266, as his father had located it. This for the purpose of showing the declarations of a deceased surveyor, bearing upon the location in dispute, it appearing by the testimony of the witness that his father left in his hands, before his death, his books and papers relating' to the location in dispute as well as other land.</p> <p>Objected to as incompetent and irrelevant.</p> <p>The Court: The objection is sustained and exception sealed for plaintiffs. [2]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (12) in qualification of the affirmance of plaintiff’s third point, quoted in the opinion of the Supreme Court, and (21) that the charge was inadequate.</p>

<p>Contract — Sale of timber — Conveyance of land — Equity—Specific performance — Personal act.</p> <p>Where a lumber company sells by an agreement in writing, all timber of certain species and of certain sizes, and by a second agreement all timber of a certain species without regard to size, and thereafter by a verbal agreement agrees to cut and haul the timber to the purchaser, and subsequently the lumber company sells the land to another person who has knowledge of the original agreement and the oral agreement, but not of the second written agreement, the vendee cannot be compelled to perform specifically the personal act of cutting and hauling the timber, and cannot be enjoined from converting to its own use the timber on land which the lumber company had acquired after the date of the original agreement, and this is the case although the lumber company had made no distinction between before and after acquired lands in delivering timber to the purchaser thereof.</p>

<p>Appeal, No. 219, Oct. T., 1908, by plaintiff, from judgment of C. P. Venango Co., Aug. T., 1907, No. 72, on verdict for defendant in case of Joseph Pettit v. Jamestown & Franklin Railroad Company.</p> <p>Trespass to recover damages for injuries to land caused by the removal of lateral support. Before Criswell, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Contract — Construction of contract — Subject-matter—Repugnant clauses —Prior negotiations — Circumstances surrounding parties — Interpretation by parties — Oil lease — Coal—Mines and mining.</p> <p>In construing a contract the language should be interpreted so that the agreement as a whole may be carried into effect. If possible, no part of the contract is to be disregarded or treated as redundant. Repugnant clauses must be reconciled if it can be done.</p> <p>In ascertaining the intention of the parties to a contract where the writing is ambiguous, or where there are apparently repugnant clauses, it is proper to take into consideration all the negotiations leading to the formation of the contract, its subject-matter, the purpose to be effected, the consideration passing between the parties, and also all the circumstances surrounding the parties when they entered into the agreement.</p> <p>Where the parties have interpreted the contract themselves and acted upon such interpretation, the court wiE regard it as the proper one, and enforce it accordingly.</p> <p>Facts of public notoriety relating to the subject of a contract must be presumed to have been known to the parties at the time of making the contract and the language used must be construed in reference to such facts.</p> <p>On an issue framed under the Act of June 10, 1893, P. L. 415, to-determine title to coal and other minerals underlying land of the defendant, it appeared that thirty-eight years prior to the framing of the issue defendant’s predecessor in title executed a paper granting and leasing to the plaintiffs’ predecessors in title the right and privilege of prospecting for coal, oil or other minerals, and for salt, oil or other substances in and upon the land in question, and the right and privilege to dig, excavate and bore and sink pits and wells for any or all of the said coal, ore, salt, oil or other minerals, and to remove and take the same out of the earth. All interest of the grantor to the coal, oil, ore or other minerals was released. The grantees were given certain surface privileges “and the free use of as much wood and coal as may be required to operate the machinery in sinking or pumping any or all wells that may be sunk by the said parties.” A money consideration was mentioned in the deed, and it was also provided that if oil should be found in paying quantities a further sum stated should be paid. At the time this paper was executed an oil excitement prevailed in the neighborhood, and prior to the execution of the paper two wells had been put down on the property. Coal existed on the land, and was mined for domestic purposes, but not commercially. The grantees under the paper operated the land for oil, found it in paying quantities and paid the additional compensation. Fifteen years afterwards the lessees and those holding under them abandoned the oil wells. They never opened any mines for coal. The coal, however, was continually mined for domestic purposes by the defendant and his predecessors in title. Defendant’s immediate predecessor in title conveyed the land to him, “subject to such restrictions and leases as are now held upon said premises.” Taxes on the whole property were continually paid by defendant and his predecessors. During the fifteen years prior to the framing of the issue, plaintiffs had made no claim whatever to the coal, oil or other minerals in the land. Held (.1), that the paper in question was a lease of the oil, gas and salt; (2) that the lease had been abandoned; and (3) that the defendant on the uncontradicted evidence was entitled to a verdict and judgment in his favor in the issue framed.</p> <p>Landlord and tenant — Abandonment—Court and jury.</p> <p>Abandonment ordinarily is a question of fact to be determined by a jury under all the circumstances of the case. There must be an intention to abandon as well as an actual abandonment of the property and usually it is necessary for the jury to determine these facts, but where there is no dispute as to the facts, and no testimony offered in contradiction of the evidence to establish the abandonment, and the credibility of the witnesses on the part of the lessor is not attacked or in any way impugned, and the evidence is clear and explicit and the inferences to be drawn from it certain and not open to doubt, and the case is such that if it was before a court and jury, the court would not sustain a verdict which did not find that the lessee had abandoned the premises, it is the duty of the court to determine the law from the admitted facts and to direct a verdict accordingly.</p>

<p>Appeal, No. 173, Oct. T., 1908, by-defendants, from decree of C. P. Greene Co., No. 135, in equity on bill in equity in case of Philadelphia Company and The Fisher Oil Company v. Baronett F. Renner and Martha J. Renner.</p> <p>Bill in equity for an injunction to restrain interference with oil property. Before Inghram, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the decree awarding and continuing the injunction.</p>

<p>Appeal, No. 23, Oct. T., 1908, by Katharine J. Sutton, from decree of O. C. Indiana Co., Dec. T., 1906, No. 26, dismissing exceptions to account of John B. Taylor, administrator of estate of S. A. Johnston, deceased.</p> <p>Exceptions to administrator’s account.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in allowing certain credits to the accountant, but not setting forth the exceptions in their exact words, nor the decree of the court.</p>

<p>Appeal, No. 205, Oct. T., 1908, by defendant, from judgment of C. P. Indiana Co., Sept. T., 1907, No. 208, on verdict for plaintiff in case of Mary J. Dilts v. Plumville Railroad Company.</p> <p>Appeal from award of viewers. Before Telford, P. J.</p> <p>At the trial plaintiff was asked this question:</p> <p>“Q. State how much the damage was since the railroad company appropriated your land to itself?</p> <p>Objected to as incompetent.</p> <p>The Court: Objection overruled, exception noted to defendant, and bill sealed. [4]</p> <p>“A. $3,000.”</p> <p>St. Clair Thompson was asked these questions:</p> <p>“Q. Will you state now what the market value of the land was after the railroad appropriated it to itself?”</p> <p>“Q. What do you say? A. I would not want the farm at all.”</p> <p>Mr. Channell: We ask to have that stricken from the record.</p> <p>The Court: The motion to strike out the answer is refused, an exception is given to defendant and bill sealed. [5]</p> <p>Peter Spencer, a witness for plaintiff, was questioned as follows:</p> <p>“Q. Will you state what the market value of that land of Mrs. Dilts was without the coal, before the railroad company interfered with it at all.”</p> <p>Objected to until they have allowed us to cross-examine the witness.</p> <p>Cross-examined by Mr. Channell: “Q. Mr. Spencer, do you know anything about the extent of the mining rights which Mrs. Dilts gave in connection with the sale of her coal? A. Nothing at all.”</p> <p>Counsel for defendant objects to this witness testifying as to the value of this land for the reason that he has not yet made himself acquainted with the extent- of the rights which Mrs. Dilts has in the land claimed to be affected.</p> <p>The Court: Objection overruled, exception given to defendant and bill sealed. [6]</p> <p>Question read:</p> <p>“A. I would consider it was worth $28.00 an acre. Q. What would be its market value after the railroad company had constructed its road there? A. I wouldn’t consider it worth more than $12.00 an acre.”</p> <p>Silas McManus, a witness for the plaintiff, was asked this question:</p> <p>“Q. Will you state the market value of Mrs. Dilts’s. farm without the coal, at the time that the railroad company appropriated a portion of it to its own use for the construction of the road?</p> <p>“ Q. Are you acquainted with the extent of the rights which Mrs. Dilts reserved in this farm at the time she sold the coal away? A. No, sir.”</p> <p>This is objected to as being irrelevant; also for the reason it appears from his evidence that he' has not been made acquainted with the extent of the rights which Mrs. Dilts had in the land, and which could be affected by the construction of defendant’s road, upon it at the time it was taken.</p> <p>The Court: Objection overruled, exception given to defendant and bill sealed. [7]</p> <p>Question read:</p> <p>Mr. Blair: “Q. What is your answer? A. $50.00 an acre.”</p> <p>Alexander Hamilton, a witness for the defendant, was asked this question:</p> <p>“Q. What was the market value of the surface to the Mary J. Dilts farm after the Plumville railroad went through it, taking into consideration the advantages and disadvantages occasioned by said construction and operation of said railroad; also taking into consideration that the title to the water in the spring within the right of way of Plumville Railroad Company is in Mary J. Dilts, she having the right to use the whole of the water, the right to conduct it by pipe wherever she desires, the right to consume it, to sell it, or waste it, and having said water piped to her house and barn, and defendant company having-no right to use said water?”</p> <p>Mr. Blair: Objected to, first, because the witness has already spoken on the subject of damages, and second, because the question is long and confusing and based in part as something that cannot be sustained, in regard to which there is no sufficient evidence.</p> <p>The Court: Objection sustained, exception given to defendant and bill sealed. [8]</p> <p>Counsel for defendant offered to file a renunciation dated April 18,1908, which renunciation is signed by all the attorneys of record.</p> <p>Counsel for plaintiff ask the defendant as to what effect they expect such an offer as this to have upon the present status of the case; the spring having been appropriated between two and three years ago, and in the meantime greatly damaged, it being impossible for the defendant to restore it to the use of Mrs. Dilts and her family in such condition as it was before the railroad company took it, being in a damaged condition ever since it did take it, and the statements about some former offer being of a loose description and the defendant having had no opportunity during the last two years and more to make some proposition if it wished to, that would be authentic and official, and not leave the subject open to further doubt and further litigation.</p> <p>We object to the filing of the paper as well as the paper itself if it is to be received in evidence.</p> <p>The Court: As we understand it, the plaintiff declined to accept the renunciation of the portion of the right of way embraced in this paper.</p> <p>Mr. Blair: There has been no renunciation offered and nothing that is official or binding upon the company.</p> <p>The Court: It appears that this paper proffered to be filed; affecting one element of damage claimed by the plaintiff; if it had been offered at an earlier stage of the case, before the plaintiff had closed, so as to have given an opportunity to meet the question as it would present itself, we might have permitted of its filing, but now the plaintiff has closed and we decline to accept the renunciation proffered in the paper of a portion of the right of way, at this stage of the proceeding; we will therefore sustain the objection to it, and give an exception to the defendant and seal a bill. [9]</p> <p>Hamilton was asked this question:</p> <p>“ Q. What was the market value of the surface to the Mary J. Dilts farm, after the Plumville Railroad Company went through it considering the title to the water in the spring belongs to Mrs. Dilts?”</p> <p>Objected to because under the law and evidence in the case it could not be considered as belonging to Mrs. Dilts. Because the subject-matter has been inquired of already of this witness.</p> <p>The Court: Objection sustained, exception given to defendant and bill sealed. [10]</p> <p>“Q. Mr. Hamilton, what was the market value of the surface of the Mary J. Dilts farm before the Plumville railroad went through it, said surface being subject to the mining rights conveyed by Mary J. Dilts to the Plum Creek Coal Company, by deed dated July 3,1905, and which you have just heard read to the jury a few moments ago; in which deed she waives the right to surface support, waives the right to damages to land, or structures thereon, damage to spring or water courses therein or thereon, giving the coal company the right to make, maintain and use roads, trolley lines and drains upon or under the surface of said lands, and to locate such buildings and other structures necessary for the mining or operation of said coal?”</p> <p>Objected to, because it is long and apt to mislead the witness, and embraces a variety of subjects calculated'to confuse him and interfere with an intelligent answer.</p> <p>The Court: Objection sustained, exception given to defendant and bill sealed. [11]</p> <p>C. P. Muntch, a witness for the defendant, was asked this question:</p> <p>“ Q. Were you in court this morning when the deed was read by which Mrs. Dilts conveyed the coal and certain mining rights in her land to the Plum Creek Coal Company? A. I was present, yes, sir. Q. Considering the effects of that inconvenience upon her farm, and considering your knowledge of values in that vicinity, prior to the time when the defendant entered upon her farm for the purpose of constructing its road, what, in your judgment, was the market value of the surface and rights which Mrs. Dilts had reserved, when she made that sale before the construction of the road, how much per acre?”</p> <p>Objected to. We have no objections to them asking the witness what' the value of Mrs. Dilts’s farm was without the coal, but to mix the question up with reservations, rights or rights alleged to be reserved as mining rights, is calculated to confuse and prevent a reaching of the real truth of the case. These mining rights would be or may be the matter of construction for courts. The witness would not be able to put a proper construction upon them.</p> <p>The Court: Objection sustained, exception to defendant and bill sealed. [12]</p> <p>Plaintiff presented this point:</p> <p>[4. There was a spring on plaintiff’s premises. The railroad company could take the bed of the spring and its water if it chose to do so, under powers conferred upon it by the legislature. In the present case it saw fit to appropriate the spring to itself, and having included it within the lines of its survey and appropriation, it became the owner of it, and owned it in the same sense that it owned any other portion of its roadway. It could not do this, however, without rendering to the plaintiff just and full compensation for this loss. This point is affirmed.] [3]</p> <p>Defendant presented these points:</p> <p>9. The title to the water of a spring within the right of way of the Plumville Railroad Company on the farm of Mary J. Dilts is in Mary J. Dilts, who has the right to use the whole of the water, to conduct it by pipes wherever she desires, to consume it, to sell it, or to waste it. Answer: This point is refused. [1]</p> <p>10. The Plumville Railroad Company has no title to the water in the spring within its right of way on the Mary J. Dilts farm, nor has it an easement in the same, and has no right to appropriate or take exclusive possession of the spring itself, or to exclude the owner therefrom. Answer: This point is refused. [2]</p> <p>Verdict and judgment for plaintiff for $1,860. Defendant appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them; (4-9) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 38, Oct. T., 1908, by defendant, from, judgment of C. P. Lawrence Co., Dec. T., 1905, No. 34, on verdict for plaintiff in case of John S. White v. Western Allegheny Railroad Company.</p> <p>Appeal from award of jury of view. Before William E. Porter, P. J.</p> <p>At the trial the court permitted, under objection and exception, J. A. McMillin and L. M. Jones to testify as to the market value of the land. [1, 6]</p> <p>J. A. McMillin was asked this question:</p> <p>“Q. What inconvenience, disadvantage and danger would there be in crossing this railroad at grade in the use of it for farming it as a stock farm or for any use in which a farmer usually uses a farm and for which farms are used in that section of the community?”</p> <p>Defendant’s counsel object and call for the purpose. Offered for the purpose of showing the damage to the plaintiff in the construction and the operation of the railroad through this farm.</p> <p>Objected to by defendant’s counsel as incompetent and immaterial and not being an inquiry as to the subject-matter of the issue in this case.</p> <p>The Court: He may answer the question, and an exception is sealed for the defendant.</p> <p>Question read witness:</p> <p>“A. You wouldn’t be in any danger unless a train came along and if one came along it would be apt to crush the wagon or the cattle if the railroad would have the right of the track.”</p> <p>Defendant’s counsel object to the question and answer and ask the court to withdraw it from the consideration of the jury and strike the evidence from the record for the reason, that the answer as well as the question are entirely speculative and do not go to the subject-matter of the issue.</p> <p>Verdict and judgment for plaintiff for $1,812.50. Defendant appealed.</p> <p>Errors assigned were (1, 3, 6) rulings on evidence, quoting the bill of éxceptions.</p>

<p>School law — Removal of directors — Inadequate school accommodations— Appeal — Certiorari—Review—Discretion—Act of June 6, 1893, P. L. 330.</p> <p>Where school directors appeal from an order removing them from office in proceedings under the Act of June 6,1893, P. L. 330, the appellate court will consider the matter only as being before it on certiorari, and will look into the record only so far as may be necessary to ascertain whether the court below exceeded its jurisdiction or its legal discretion.</p>

<p>Appeal, No. 126, Oct. T., 1908, by-defendant, from order of G. P. Lawrence Co., June T., 1908, No. 98, refusing to approve bond in condemnation proceedings in case of Thomas D. Wilson v. Pittsburg & Lake Erie Railroad Company.</p> <p>Application to approve bond in condemnation proceedings.</p> <p>William E. Porter, P. J., stated the facts to be as follows:</p> <p>In order to obtain additional land “for the purpose of better securing the safety of persons and property and increasing the facilities and capacity for the transportation of traffic on its lines of railroad by keeping and maintaining on said land water tanks for the purpose of supplying water to its locomotives, engines and trains,” the Pittsburg & Lake Erie R. R. Co. has begun this proceeding to condemn land of Thomas D. Wilson and has tendered him a bond in the sum of $2,500 which he has refused to accept, and we are now asked to approve said bond. Attached to the bond is a blue print which shows that the present west line of the right of way of said company is about ninety feet at the south end and about ninety-four feet at the north end of the property it is now desired to acquire from the center line of the present right of way of said company. And the land it is proposed to acquire is a small strip just west of the present right of way about 106 feet wide and 320 feet long on the east side and 254 feet along on the west side, so that if this piece were acquired by the railroad company the west line of its property would be about 200 feet from the present center line of the company’s right of way.</p> <p>The court refused to approve the bond on the ground that the company had no power to condemn land for the purpose stated.</p> <p>Error assigned was order refusing to approve the bond.</p>

<p>Railroads — Sparks—Evidence—Burden of proof.</p> <p>In an action against a railroad company to recover for the destruction of property by fire from sparks, it devolves upon the plaintiff to prove by a preponderance of evidence that the fire was communicated by sparks or cinders from the railway engine. It need not be shown that any particular engine was at fault, but it will be sufficient if the fire is proved to have been set by any engine passing over defendant’s railway, and the evidence may be wholly circumstantial; as, first, that it was possible for fire to reach the plaintiff’s property from the defendant’s engines, and, second, facts tending to show that it probably originated from that cause, and from no other.</p> <p>In such a case where the plaintiff is suing for the destruction of a barn, the question of the defendant’s liability is for the jury, if there is evidence tending .to prove that it was possible for fire to reach the barn from defendant’s engine; that sparks as large as hickory nuts were seen escaping from a locomotive which passed just before the fire; that the wind blew towards the building; that a few moments before the fire the sound of something falling upon the porch of the house or porch roof was heard, and at least one cinder, hot and- smoking, was seen on the porch of the house, about as far from the track as the bam; that the fire was discovered on the shingle roof of the barn on the side next to the railroad, a few moments after the train had passed; and that the spark arrester on the engine in question, when examined two or three days afterwards, showed signs of fresh repair.</p> <p>In an action against a railroad company to recover for the destruction of property from the escape of sparks, the plaintiff may testify that he examined the engine which was alleged to have caused the fire, two or three days afterwards, and found that the spark arrester showed signs of fresh repair.</p> <p>In such a case where the plaintiff testifies that he had seen a hot cinder fall on his porch, and testifies that it was one of three cinders shown, and a witness for defendant testifies that large sparks or cinders would not escape through a spark arrester in good condition, such witness may be shown on cross-examination the smallest of the three cinders for the purpose of establishing or fixing by comparison the size of cinders that could pass through the meshes of a properly equipped spark arrester.</p> <p>Any article made important by evidence, or by the nature of the investigation may be produced or inspected.</p>

<p>Negligence — Damages—Future pain and suffering.</p> <p>In an action to recover damages for personal injuries the jury may and should award compensation for future pain and suffering whenever the evidence furnishes just ground for the belief that such pain and suffering will likely or probably ensue.</p> <p>Negligence — Railroads—Surgical operation — Sequence of original injury — Damages—Radiograph pictures — Evidence.</p> <p>Where a surgeon employed by a railroad company sets the broken leg of a passenger in such a way as to cause the fibula to override, resulting-in intense pain, and making necessary a second operation, if the second operation is performed in good faith, with a view to promote and insure complete recovery or mitigate the patient’s pain, either by correcting what had been done, or by supplementing it, by a surgeon in whose skill and judgment the ordinarily prudent person would have a right to rely, the consequences following the operation and resulting directly therefrom, are in a legal sense the sequence and result of the original accident; and it is immaterial that the second operation did not relieve the patient’s pain and suffering.</p> <p>In such a case the surgeon who performed the second operation is properly permitted to show that his conclusion in determining that the second operation was necessary, was based upon radiograph pictures, and that when operating he found the conditions to be just as the picture represented. Under such circumstances the objection that the pictures were not taken by a professional, amounts to nothing.</p>

<p>Appeal, No. 220, Oct. T., 1908, by plaintiff, from judgment of C. P. Lawrence Co., June T., 1906, No. 99, on verdict for defendants in case of Commercial National Bank of Bozeman, Montana, v. C. J. Kirk et al.</p> <p>Assumpsit against directors of a Montana corporation. Before William E. Porter, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Estoppel — Title to land — Acquiescences in improvements — Ejectment.</p> <p>In an action of ejectment for one acre of land that adjoined a tract of nine acres owned by the defendant, it appeared that the plaintiff had a clear record title while the defendant had no record title. The defendant claimed to have acquired the land at a receiver’s sale. The evidence showed that at a time when the plaintiff was in the brick business with his sons who then owned the nine acres, he built at his own expense two kilns on his land which were used in the business. After he withdrew from the business his sons and a corporation that succeeded them in business used the kilns and a part of the land without charge. This use was permissive only. These kilns were repaired or rebuilt when it became necessary, and a third kiln was located partly on plaintiff’s land. The president of the corporation knew of this location, but before the kiln was completed the corporation passed into the hands of a receiver, who finished the kiln in ignorance of his rights but without the knowledge of the plaintiff. Subsequently, on notice of the plaintiff’s title he abandoned the kiln and afterwards the defendant acquired title to the adjoining land. Held, that the court committed no error in directing a verdict for plaintiff, inasmuch as there were nothing in the facts proved upon which an estoppel could be based.</p>

<p>Appeal, No. 45, Oct. T., 1908, by defendant, from judgment of C. P. Beaver Co., June T., 1906, No. 332, on verdict for plaintiff in case of Ohio River Junction Railroad Company v. Pennsylvania Company.</p> <p>Ejectment for land in Rochester township. Before Thomas, P. J., specially presiding.</p> <p>At the trial it appeared that both parties claimed title from one J. E. Herrold.</p> <p>The court charged in part as follows:</p> <p>It seems that on December 18, 1900, Mr. J. E. Herrold entered into a contract with one George I. Park for the sale of this land. That contract or article of agreement has been read in your hearing, and it provides, as we recollect it, that Mr. Park was to pay $3,500 for the land; that he paid $25.00 down at the time, and that the article of agreement was entered into and signed by all of the parties, by the provisions of which Mr. Park was to pay the balance of $3,475 within thirty days, or at such time as a good deed should be delivered to him by Mr. Herrold. It also provided that at the end of thirty days, or upon January 18, following, Mr. Park was to have possession of the land. And that if there was a failure to pay according to the terms of the contract, after the term of sixty days certain legal proceedings might be had, by virtue of which Mr. Herrold would have the right to enforce his claim, to gain possession of the land.</p> <p>It appears according to the testimony that no tender of the purchase price was made, or offer of a deed by Mr. Herrold to Mr. Park until possibly March 14, following, when Judge Holt, who at that time was counsel for the plaintiff company, the Ohio River Junction Railroad Company, and on behalf of that company and by virtue of means furnished by them to him, went to the home of Mr. Herrold and made a tender of the balance due, together with interest from thirty days after its date to the date of the tender; and Mr. Herrold refused to accept the tender, and did not at that time, or at any other time, as we understand, make a tender of any kind óf deed good or otherwise. The plaintiff offers testimony to the effect that George I. Park was at the time the purchasing agent for the plaintiff company; and he says he was acting for and in behalf of the plaintiff company in this transaction, and that he procured the assistance of Mr. Noss, a real estate agent, I believe, in procuring the 'contract. Mr. Noss testifies that he was engaged by Mr. Park, and that Mr. Park furnished to him the $25.00 that he paid as hand money. There is testimony to the effect that upon December 19, according to the terms of this contract, Mr. Park was to have possession on January 18, 1901, or thirty days after the contract. Mr. W. A. Park testified that he had a contract with the plaintiff company for the construction of certain portions of its line; that the engineer for that company staked out tracks, beginning as I gathered it, on December 21, 1900, and that by January 19 he had the tracks staked out; and that there was some additional work to be done before February 5, when the plaintiff company, by its duly authorized officers, accepted the report of the engineer and adopted it. He testifies that these stakes were driven at that time, and that he as contractor began work as we remember it, on March 21, 1901; and shortly after he had begun work, the employees of the defendant company came on and tore up their tracks and dispossessed them; and that the plaintiff has been out of possession from that day until this, and that the defendant is in possession at the present time, and as I gather it, has been in possession during the time from that time until the present.</p> <p>The defendant relies upon a title which also came from Mr. Herrold. Mr. J. D. Strock testifies that he was acting for the defendant company, the Pennsylvania Company, in an attempt to, and I believe successfully, make purchase of this land in 1901. That he went to the home of Mr. Herrold possibly on February 23, 1901, and there entered into an agreement with him for the purchase of .this land; that he was acting for the Pennsylvania Company at this time, and that what money he paid — and as I gather, it was subsequently paid for the land— was paid by the Pennsylvania Company. That pursuant to the article of agreement entered into with Mr. Strode, a deed was made to William Jackson on March 8, 1901, and Mr. Jackson, formally reciting that he had taken title as trustee for the Pennsylvania Company, and pursuant to that, conveyed the title in him to the defendant company on March 13, 1901.</p> <p>There is testimony to the effect that the defendant company or its lessor located a line across the Herrold lands in 1898; and that it has since that time built a road across this land. Evidence has been offered showing that the right of the defendant company to a right of way across this land, at least, has been adjudicated; and it is not contended, as we understand, on the part of the plaintiff, but that the defendant company or its lessor has an easement, that is, a right to maintain a railroad across this land, but denies that it has title to the land, or has any right to the balance of the five acres, other than that which is occupied by its road and the necessary width of land accompanying it.</p> <p>It appears that the branch which the defendant occupies extends along the east side of the Beaver river, and was located there, I believe, in 1898, and was occupied by the defendant company. That question has been adjudicated, and they would have the right to the easement in that land for railroad purposes, and it not being shown the width taken, it would be presumed that would be the width allowed by law, sixty feet, along the river, and the place where they now have their railroad located.</p> <p>The article of agreement which Mr. George I. Park received was not acknowledged by Herrold and his wife, nor was it acknowledged by Park at'the time when it was executed and delivered, according to his testimony. Some time thereafter and upon the day when Judge Holt says in his testimony that he made the tender to Mr. Herrold, it appears that certain proceedings were taken for the purpose of having this HerroldPark article of agreement probated, so that it could be placed of record. We say to you as matter of law that the probate of that article of agreement, and the placing of it upon the records was not sufficient to give notice to any person of the ownership of that land, or the terms of that article of agreement. In our view of the case, the law was not so complied with as to entitle that article of agreement to be placed of record; and having been spread upon the record without ■ legal authority, it was not notice to anybody. The purpose of recording an instrument is solely for the purpose of giving notice; and if a party has notice without the record, such party is bound just the same as if the instrument were upon the record. If the instrument is duly recorded, notice is visited on all parties, whether they have actual notice of the contents of the instrument or not. But if it is not recorded, if a party has notice of the instrument, — and I do not now mean that he has notice of it by hearing a rumor of it, or something of that kind, — but if he has notice of the instrument being given, or has notice of its contents by one of the parties interested, then such party is bound, the same as if he had examined the instrument; for it was his duty to examine what it contained. Again, a person buying land is obliged to take notice of what is going on upon it; if he buys land from one person, and somebody else is in possession of it he is put upon inquiry, and is obliged to know by what authority such other person is there in possession. There is some evidence in the case as to whether or not when Mr. Strock obtained title, or entered into this article of agreement with the Herrolds, he had notice of the title which Mr. Park had secured and secured for and in behalf of the plaintiff company. Mr. Strock says that Mr. Herrold told him he had entered into the agreement with Mr. Park, but that it was for sixty days, and that the time had expired. If Mr. Herrold told Mr. Strock that he had entered into the article of agreement with Mr. Park, it was his duty to determine the terms and conditions of that agreement; and if he chose to rely upon a legal interpretation of it by Mr. Herrold or anybody else, that was his risk, and what he did acting for the Pennsylvania Company bound the Pennsylvania Company. Therefore, did the Pennsylvania Company acquire this title with notice of the contract with Park.</p> <p>There is some other evidence of notice upon the ground. It appears that in January, or possibly in December, December 21 according to W. A. Park’s testimony, the engineer of the plaintiff company began driving stakes upon this ground. Was there such a condition of affairs there as to give notice to a person going upon the ground that somebody was in possession, or claiming title? As I understand, or recollect the testimony, it appears that Mr. Herrold was living on this five acres of land at the time. Now, was there anything there that should have given Mr. Strock as a reasonable man notice that somebody else, other than Mr. Herrold, was in possession, or claiming possession? If there was, or was not, is for you, gentlemen, to determine. And if there was such an indication of possession, it was the duty of the defendant company’s agent to determine by what authority or right the person having that possession claimed to have it.</p> <p>Something has been said in your hearing with reference to the plaintiff company not taking possession of the Herrold property by virtue of the contract made with George I. Park, but that it was by virtue of their right to locate the railroad, and condemn the land.</p> <p>The testimony offered showing the action of the plaintiff company with reference to locating its switches, yards, and roundhouse, was presented before you, gentlemen, and that included, as we understand it, lands which were at that time owned by divers persons; and there were directions by the duly authorized officers of the plaintiff company that the proper officers should proceed to acquire title.</p> <p>A railroad company may acquire title by what is. known as the right of eminent domain; but it is not obliged to do that. The railroad company can make agreement with the owners of the land, or buy an easement in the land, or the fee, — buying the land outright if they so agree. And if George I. Park was actually negotiating for and took this property for it in behalf of the plaintiff company, the title thereto would be in it.</p> <p>[Something has been said with reference to the plaintiff being obliged to tender the purchase money, and keep that tender good, and bring it into court. As we view this case there is no duty on the part of the plaintiff company to do that, as to this defendant company. As between this plaintiff and Mr. Herrold there are different rights. But as we interpret the instrument given by Herrold to Park, Park had thirty days, or until Herrold tendered him a good deed, to make this purchase, to make the payment; and that he could not proceed against Park in any event until, I believe, ninety days, — or sixty days after the thirty days expired, if I correctly remember the terms of the contract. And within that time, and before Herrold would have a right to proceed, it is alleged that the plaintiff company, following the contract with Park, made a tender, but failed to receive a deed, and that they will answer to Herrold as to that at any time he attempts to enforce his rights, or when he presents a deed. ,</p> <p>However, if the plaintiff had this article of agreement, and the defendant had no notice of it, such as we have indicated in our charge, the defendant could take title and would acquire a good and valid title as against the plaintiff when it purchased the land of Herrold; and the plaintiff then will have to settle as to any damages to it because of that, with Mr. Herrold. But if the defendant had notice, and went on notwithstanding that notice, and purchased of Herrold, it would not take title as against this plaintiff, and then, for any damage the defendant has sustained the defendant and Herrold may settle.] [5]</p> <p>It is a question of notice, as we view the case, chiefly of notice, and also as to what was done to give the notice, and what was done by the parties, and for whom they were acting. If George I. Park was not acting for the plaintiff company, or if he was so acting and the plaintiff company never ratified or accepted that, — either one, — the plaintiff would not acquire title any way.</p> <p>[If you find under the instructions we have given you, and all the evidence in the case, that the plaintiff has title, and that whatever title the defendant took it took with notice of that title in the plaintiff, you will find a verdict for the plaintiff for the land described in the writ of ejectment, subject, however, to an easement in behalf of the defendant company, and you will describe what that easement is. As we remember it is an easement of right of way for a railroad along the east bank of the creek or Beaver river, and across this land; and it would be for sixty feet in width, and at the place where their right of way is now located. If the plaintiff is entitled to recover at all, it will be for the land described in the writ, subject to the easement in the land; and you will describe where that easement is.] [6]</p> <p>Defendant presented these points:</p> <p>1. Under the law and the evidence the verdict must be for the defendant. Answer: Refused. It is a question for you. [1]</p> <p>2. The alleged agreement of December 18, 1900, between John E. Herrold and George I. Park, and under which plaintiff claims title, is not sufficiently stamped as required by the act of congress in force at the time of its execution, is not admissible in evidence, and should be disregarded by the jury. Answer: This point is refused. It cannot be entirely disregarded by you, in view of the admission made, and we will refer to this in the answer to the next point. [3]</p> <p>5. Under the pleadings and evidence plaintiff’s claim, if any, in this case, would not be more than an equitable title, and in no event could plaintiff recover, without having the money in court ready to be paid in the event of a verdict in its favor. Answer: This point is refused. [4] ■</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (1, 3-6) above instructions, quoting them.</p>

<p>Negligence — Street railways — Contributory negligence — Case for jury— Collision between engine and street car at a public crossing.</p> <p>In an action against an electric railway company to recover damages for personal injuries sustained by a collision between a street car of the defendant and a locomotive engine, it appeared that the plaintiff landed from the street car after it had stopped at a waiting room 200 feet from the crossing. He saw the engine backing a train of freight cars slowly over the crossing from east to west. He ran on the east side of the public road and reached the railroad track as the engine was passing. He placed his right foot on the step, caught the hand hold, and as he placed his left foot to the floor, he was struck by the defendant’s car from which he had alighted. He at no time stepped on the track of the defendant company. There was ample evidence of the negligence of the motorman in allowing his car to collide with the engine. Held, that as the plaintiff did not step on defendant’s track, but was carried there while on the engine, and as he had safely passed the pueril of getting on a moving engine, there was no causal connection between his negligence in getting on the moving engine and his injury, and the case was for the jury.</p> <p>Negligence — Damages—Length of life — Charge of court.</p> <p>Where in a negligence case the jury is distinctly told that they could allow only the present worth of plaintiff’s earning power “from the time he reached twenty-one years for and during the remainder of his probable natural life,” a judgment for the plaintiff will not be reversed because the court referred in a cautionary way, in view of argument advaneed by plaintiff’s counsel, to the jury taking “into consideration the probability of the young man living to the allotted time of three score years and ten.”</p>

<p>Appeal, No. 221, Oct. T., 1908, by-defendant, from judgment of C. P. Beaver Co., March T., 1907, No. 223, on verdict for plaintiff in case of John P. Willock to use of W. S. Willock v. Beaver Valley Railroad Company.</p> <p>Trespass to recover injuries to land. Before Prather, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Defendant presented these points:</p> <p>4. If the jury find from the evidence that the fee to the whole ground upon which the railroad is constructed in front of the plaintiff’s property does not belong to plaintiff, but is the property of the abutting owners on the south or opposite side of the street, then there is no additional servitude imposed on plaintiff’s land, and the verdict should be in favor of the defendant. Answer: This point is refused. We have instructed you that the plaintiff is entitled to access to his property, whether he owns further into the street than his curb line or not; and if that access to his property has been interfered with by the construction and operation of the defendant’s railroad, you have a right to consider that in making up your verdict. [4]</p> <p>6. There can be no recovery by the plaintiff in this case from any damages from smoke, dust, noise, or other inconvenience caused by the lawful operation of the defendant’s railway. Answer: This point is refused. If you find that the plaintiff has no fee in the street except to his curb line, you might, under the evidence, still find whether or not the access to his property has been interfered with, and has thereby affected the value of his property, and if so, you will determine how that affects the property, and the extent thereof. [9]</p> <p>[We say to you, gentlemen of the jury, as matter of law, that it is immaterial when you have found, if you so find, that the access to this property has been interfered with, abridged, and that it is with increased difficulty that the plaintiff has access to his property — we say to you, when you have found that fact, that it is immaterial whether his property line is twenty feet, thirty feet or forty feet from the curb. The plaintiff has a right to access to the street, and it is a presumption of law that the street as located there, and marked by curbs, is on the ground on which it was originally laid out and designed. And whether it is or is not, the plaintiff is entitled to the road and street privileges, and if you find that access by him to his property has been damaged or interfered with by reason of the construction and operation of the defendant’s railroad, you will consider, in passing on that branch of the case, that his right of property is to the curb.] [5]</p> <p>[If the plaintiff owns a right in the soil to the middle of the street, then he has a right here to be compensated, taking into consideration the testimony here, for what noise, dust and inconvenience he experiences by reason of the construction and operation of the railroad; but if you do not find, under this testimony, that his rights go further than the curb line, you would have no right to consider the matter of noise, or dust, or smoke as affecting his property; but you would still inquire how much, if any, his property has been damaged in its general market value, as affected by the construction of this railroad, applying that construction and operation to the access to his property; and by access we do not mean a line of travel, such as might be affected by a line of an alley; he has a right to have access at any point along his property for the purposes for which it is adapted; that may be by a vehicle, or it may be by a private walk or pathway; and it is no entrance at any particular point, if it is a pathway.]. [10]</p> <p>Verdict and judgment for plaintiff for $3,797.50. Defendant appealed.</p> <p>Errors assigned were certain rulings on evidence; (4, 5, 9, 10) above instructions, quoting them.</p>

<p>Appeal, No. 222, Oct. T., 1908, by defendant, from judgment of C. P. Beaver Co., Dec. T., 1905, No. 82, on verdict for plaintiff in case of Charles W. Goehring v. Beaver Valley Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Smith, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[Plaintiff’s counsel contends that his business as a night policeman ended at the boundary of Rochester borough, being the middle of the Ohio river, while in the defendant’s testimony it is contended that his employment was that of a peace officer throughout their entire lines. On the night of the accident plaintiff, after getting on the car and taking his seat in the regular seats in the interior of the car, alleges that he was directed by the conductor to go on the front platform with the motorman, and it is in testimony on both sides that he stayed there during the entire trip going to Monaca, where they stopped a couple of minutes, during which time he sat with the motorman in the interior of the car, and then again took his place on the front platform with the motorman on the return trip at the instance of the employees of the car. Plaintiff’s counsel contend that he was not in the line of his employment on the return trip, but that his duties as night policeman in there were only on the outbound trip from Rochester to the center of the bridge, and that he did not get off after passing that point simply for the reason that he did not want to walk back. Now we leave this as a question of fact for this jury. Plaintiff could have been an employee with the rights of free passage and at the same time a passenger, that is, his being an employee is not inconsistent also with his being a passenger at certain times upon the company’s cars. The question for you then to consider is, whether or not on this night in question, under all the testimony in the case, both on the part of the plaintiff and on the part of the defendant, this plaintiff was there as an employee of the company in the line of his duty by virtue of such employment at the time of the accident. If he was a passenger, as we said to you before, the proof of the accident raises the presumption of negligence on the part of the defendant company or of its employees. While if he was an employee and there in the line of his duty, there is no such presumption of law and the burden would be upon this plaintiff to satisfy you that there was negligence on the part of the defendant’s employees. There must be negligence on the. part of the defendant, understand, in either case, but in the ease of a passenger this negligence is presumptive from the proof of the accident.] [7]</p> <p>[Having decided, then, this question of fact as to his status as a passenger or an employee on that night and at the time of the accident, you then pass to the question, if you decide he was an employee, whether negligence has been shown affirmatively by plaintiff’s testimony. If he was an employee and it has not been so shown, defendant is entitled to a verdict at your hands. If a passenger, has the presumption of negligence been overcome by the proof offered by the defendant? If it has, defendant again would be entitled to your verdict. If an employee, and this accident was the result of negligence by a coemployee, such as would be the motorman and the conductor, plaintiff cannot recover and your verdict must be for the defendant. The only evidence in this case on the part of the plaintiff attempting to explain the cause of this accident is that of the plaintiff himself and one or two witnesses, in an effort to show excessive speed of the car. There is no evidence of the plaintiff going to show that the car was defective or that the track was defective, or that this accident could have resulted from anything but increased speed upon a dowñ grade, at the end of which was a curve, causing the car to leave the track at the curve. If this was the fault of the motorman, a coemployee, or was caused in any way by the act of the plaintiff himself, or by virtue of his contributory negligence, then he cannot recover in this action.] [8]</p> <p>[It is one of the undisputed facts in this case that this plaintiff was on the front platform of this car. It was while he was in that position that he received the injuries for which he sues. He excuses himself for being in this position, however, by alleging that he was directed to go there by the conductor, who told him that he did not allow policemen to ride on the seats, or something to that effect. You will remember just what he alleges was said. It is in evidence, undisputed I believe, that there was no rule of the company to that effect, and that the conductor himself denies that he gave any such direction. What, then, was the fact? Was he directed to go there by the conductor or did he go there voluntarily as is claimed by the conductor, at the instance of the motorman to talk to him? If he did go there at the positive direction of the conductor, we take it that such direction would have to be obeyed, as the conductor was the manager of that car and in full authority, and he, the plaintiff, would not be necessarily guilty of negligence per se in thus obeying the conductor's orders.] [9]</p> <p>. Verdict and judgment for plaintiff for $6,185. Defendant appealed.</p> <p>Errors assigned among others were (7, 8, 9) above instructions, quoting them.</p>

<p>Estoppel — Oil lease — Tenant by the curtesy — Joint action.</p> <p>Where a tenant by the curtesy executes an oil lease without the remainder-men, a son and two daughters, joining in the lease, and subsequently the three remainder-men bring a joint action of trespass against the lessee to recover damages for the taking of oil, and there is sufficient evidence to constitute an estoppel against the son, although no evidence of estoppel against the daughters, a joint recovery is defeated, and a verdict and judgment for the defendant will be sustained.</p> <p>In such a case there is sufficient evidence to constitute an estoppel against the son, where it appears that he had urged the taking of the lease in the first instance from his father, had encouraged the expenditure of money by the lessees in developing the lease, had worked on the lease at different times for several years, and had received checks made payable to his own order for a number of years for the royalty due under the lease for oil run into the pipe line in the name of his father.</p>

<p>Appeal, No. 60, Oct. T., 1908, by plaintiffs, from judgment of C. P. Butler Co., Sept. T., 1907, No. 92, on verdict for defendant in case of Edward E. McIntosh and Addie McIntosh v. Daniel Dierken.</p> <p>Trespass to recover damages for taking oil. Before Gal-breath, P. J.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Taxation — Collateral inheritance tax — Illegitimates—Acts of May 6, 1887, P. L. 79, and July 10, 1901, P. L. 639 — Constitutional law — Title of statute.</p> <p>Under the Act of July 10, 1901, P. L. 639, entitled: “An Act to regulate and define the legal relations of an illegitimate child, or children, its or their heirs, with each other and the mother and her heirs,” an illegitimate child inheriting property from its mother is under no liability to pay a collateral inheritance tax thereon.</p> <p>The title of the act of 1901, gives sufficient notice of exemption from collateral inheritance tax of estates passing from mothers to their illegitimate children.</p>

<p>Appeal, No. 79, Oct. T., 1908, by plaintiff, from order of C. P. Butler Co., Sept. T., 1907, No. 1, refusing to take off nonsuit in case of John W. Titley v. H. C. Craig.</p> <p>Assumpsit to recover gas rentals. Before Galbreath, P. J.</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 — Flooding coal mine — Sinking well — Evidence—Case {or jury.</p> <p>In an action of trespass to recover damages for an alleged wrongful flooding of a coal mine, the case is for the jury, and a verdict and judgment for defendant will be sustained, where the evidence on one side tends to show that the damage was caused by the negligent way in which a water well was drilled by the defendant, while the evidence on the other side tends to show that the injury to the mine was caused by the failure of the plaintiff to leave sufficient pillars to support the roof.</p> <p>Evidence — -Rebuttal—Cumulative evidence.</p> <p>A judgment will not be reversed because the trial judge refused to admit certain evidence in rebuttal, where it appears that the subject to which the evidence related had been gone into very fully in chief, and that the rebuttal testimony would simply have been cumulative.</p>

<p>Appeal, No. 17, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., Feb. T., 1907, No. 316, on verdict for plaintiff in case of E. W. King v. The McClure Company.</p> <p>Trespass to recover damages for personal injuries. Before McIlvaine, P. -J.'</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,342. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Railroads — Eminent domain — Evidence as to value of land — Division of land into lots.</p> <p>While it is proper in railroad condemnation proceedings, to take into consideration the use to which the land is best adapted, it is improper to determine the value of the whole tract by computing the number of lots it can be divided into, what each lot is worth, and the value of the whole tract estimated on this basis.</p> <p>Practice, C. P. — Trial—Improper admission of evidence — Charge.</p> <p>Where evidence has been improperly admitted which tends to prejudice the mind of the jurors, the error is not cured by an instruction in the charge to disregard it or to withdraw it from their consideration.</p>

<p>Road law — Plan of lots — Dedication of street — Acceptance by the public— Railroad — Eminent domain — Damages.</p> <p>While title by adverse possession cannot be acquired in land which has been dedicated to the use of the public for the purpose of a street, the rule will not obtain unless the dedication has been accepted.</p> <p>Where an owner of land lays the land out in a plan of lots and records the plan, but the streets indicated are never accepted by, open to, or used by the public, and the owner and his successors in title for over fifty years keep the land fenced and cultivated, a railroad company, in condemning a portion of the land, cannot claim that it is not liable for the depreciation in value of the whole of the tract because of a division of the tract by a street or streets.</p> <p>In such a case it is immaterial if the owner of the land within twenty-one years prior to the condemnation proceedings described the land in partition proceedings and in an affidavit filed under the Act of May 31, 1901, P. L. 352, by reference to the recorded plan of lots.</p>

<p>Appeal, No. 83, Oct. T., 1908, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1907, No. 60, on verdict for defendant in case of B. A. Zollner v. John H. Moffitt.</p> <p>Assumpsit against an indorser upon a promissory note. Before McIlvaine, P. J.</p> <p>At the trial the defendant alleged that he had received no notice of the dishonor of the note.</p> <p>The court charged in part as follows:</p> <p>Now, the defendant on the other hand denies that he ever made any admission of that kind, and he also swears positively that he never received any notice, and he also states certain facts in regard to where he was on the day that the notice ought to have been received if given as indicated by this certificate, and that it was impossible for the notary to have delivered the notice at that time, and therefore that there is some mistake here about this certificate; and then the defendant placed on the stand the notary herself who testified that she now has no recollection of delivering the notice. Of course she admits the genuineness of this certificate, and that certificate still has the force that the act of assembly gives it, but the claim of the defendant is that the notary now saying that she has no present recollection of it, is a fact, — is a circumstance, that is to be considered by the jury in weighing the direct contradiction that is here apparent between the testimony of the defendant that he never received such a notice 'and the inference that is to be drawn from this certificate that he did receive it. Now, gentlemen, we believe that this is a case that the jury must determine, it being a question of fact; and you have on the one hand the certificate, and those circumstances that I have referred to that the plaintiff claims corroborate the certificate, and then on the other hand you have the express denial of the defendant that he ever received notice, and also the circumstances that he narrates as to his whereabouts at the time he ought to have received the notice, and the testimony of the notary, and it will be for you to determine whether or not John H. Moffitt at the time specified in the act of assembly had notice of the dishonor of this note so as to make him liable, or was he discharged from liability as an indorser by reason of not having received notice that the maker had not paid it when it was due?</p> <p>Defendant presented these points:</p> <p>1. The certificate of the notary public who protested the note on which suit has been brought in this case, raises no presumption that notice of protest was mailed to John H. Moffitt to his address. Answer: That is affirmed. The presumption would be that notice of protest was given according to law, but not that notice of dishonor was duly addressed and deposited in the post office as provided by sec. 105 of the act of May 16, 1901. [2]</p> <p>2. Where the plaintiff, as in the case at bar, relies upon the certificate of the notary public who protested the note as prima facie evidence that notice of protest was given to the indorser, and the certificate merely recites the fact that due notice of the protest was given to the indorser, the certificate of the notary public only amounts to prima facie evidence of personal notice to the defendant, and unless the jury are satisfied from a preponderance of the evidence in the case that personal notice of protest was given to the indorser as required by law, then the verdict should be for the defendant. Answer: That is affirmed. [3]</p> <p>3. In order that an indorser of a promissory note may be made liable for its payment after the note has been dishonored, notice of the nonpayment must inform the indorser that the holder intends to stand on his legal right, and to resort to the indorser for payment.- Mere knowledge of the nonpayment on the part of the indorser is not sufficient to charge him with liability. Answer: That is affirmed. That is, the notice must inform the indorser expressly or by an equivalent implication that he is looked to for payment. [4]</p> <p>3.-2-. The memorandum at the bottom of the certificate of ■protest, to the effect that the notary sent a notice of protest ■to John H. Moffitt, is no evidence in this case that John H. Moffitt ever received that notice. Answer: That is affirmed. That is not part of the certificate, — a mere memorandum of what the certificate sets out generally. [5]</p> <p>Verdict and judgment for defendant. • Plaintiff appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>