Volume 224 — Pennsylvania State Reports

<p>Contract — Action—Parties—Legal plaintiff — Use plaintiff.</p> <p>1. At common law no one could maintain an action upon a contract to which he was not a party; but an exception to this rule is where one receives money or property on the promise made by him to pay or deliver the money or property to a third person. In such a case the third person has a direct right of action against the promisor.</p> <p>2. Where a purchaser of land under articles pays the hand money on account, and subsequently assigns his equitable title to another, who assumes in writing the payment of the money paid on account, and it appears that this money is really due to a third person from whom the purchaser had borrowed it, and subsequently the assignee, with full knowledge of all the circumstances delivers a copy of his agreement to the purchaser, who in turn delivers it to the lender of the hand money, the latter has a direct right of action against the assignee.</p> <p>3. The right to maintain an action in the name of a legal plaintiff does not depend upon the interest which the use plaintiff may have in the result. It depends solely upon whether the legal plaintiff has a cause of action against the defendant. If he cannot maintain the action, the use plaintiff cannot do so. If the legal plaintiff has a good cause of action, it is immaterial, so far as the defendant is concerned, whether the use plaintiff has any interest or not. That is a matter which concerns the legal and the use plaintiffs and not the defendant.</p>

<p>Appeal, No. 239, Jan. T., 1908, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1906, No. 3,808, on verdict for plaintiffs in case of Annie E. Chittick and John F. Chittick v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Willson, P. J.</p> <p>Verdict and judgment for Annie E. Chittick for $1,500 and for John F. Chittick, her husband, for $1,200. Defendant appealed.</p> <p>’ Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 284, Jan. T., 1908, by The Land Title and Trust Company, from order of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 5,063 M. L. D. (consolidated with Nos. 5,062 to 5,111 M. L. D.) discharging rule to intervene in case of Joseph Pagnacco v. Frederick F. Faber, owner and contractor, and J. Willison Smith, reputed owner.</p> <p>Petition to intervene. Before Kinsey, J.</p> <p>In addition to the facts stated in the opinion of the Supreme Court and in the report 221 Pa. 326, it appeared that J. Willison Smith, mentioned as the reputed owner, was in fact an official of the trust company, and that he held the title for the trust company to secure the company.</p> <p>The court discharged the rule .to intervene.</p> <p>Error assigned was order discharging the rule.</p>

<p>Appeal, No. 184, Jan. T., 1908, by-defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1906, No. 1,883, on verdict for plaintiff in case of Sadie Norbeck v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for 16,000. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 336, Jan. T., 1908, by plaintiff, from decree of C. P. No. 5, Phila. Co., Sept. T., 1907, No. 5,009, dismissing bill in equity in case of W. Riehle Smith Snyder v. Joseph J. Smyth and Wilson R. Ker.</p> <p>Bill in equity for an account. Before Ralston, 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. 285, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1907, No. 218, for defendant on demurrer to statement in case of William H. Morrison to the use of the Equitable Trust Company v. American Surety Company of New York.</p> <p>Demurrer to statement in assumpsit. Before Staake, J.</p> <p>The material portion of the bond upon which suit was brought was as follows:</p> <p>“Know all men by these presents, that we, of the</p> <p>City of Philadelphia, (hereinafter called the principal), as principal, and the American Surety Company of New York (hereinafter called the surety), as surety, are held and firmly bound unto William H. Morrison, of the City of Philadelphia, Pennsylvania (hereinafter called the obligee), in the sum of dollars, for the payment whereof the said principal binds himself, his heirs, executors, administrators and assigns, and said surety binds itself and its successors firmly by these presents.”</p> <p>The question raised by the demurrer was whether the bond was a joint and several one, or a purely joint one.</p> <p>Error assigned was the judgment of the court.</p>

<p>Master and servant — Wrongful discharge — Corporation—Manager— Corporate resolutions — Evidence—Case for jury.</p> <p>In an action against a corporation by its former manager to recover salary after an alleged wrongful discharge, it appeared that a resolution was passed giving the plaintiff a leave of absence for a limited period, and that another resolution was passed four days later, finally discharging plaintiff on the ground of insubordination. There was testimony that the plaintiff before the second resolution was passed refused to take the vacation offered to him, and also refused to permit another person to act in his place. The ground for discharge was insubordination. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Negligence — Street railways — Collision at steam railway crossing— Trolley leaving wire — Stranding of car across track.</p> <p>1. Where the trolley of an electric car leaves the wire when the car is passing over a steam railroad crossing, without any negligence on the part of the street railway company or its employees, and the car becomes stranded and is run into by a locomotive, a passenger on the electric car who is injured cannot recover from the street railway company where there is nothing to show that the parting of the trolley from the wire was due to any defect in the construction of the car, or to any lack of care on the part of the motorman or conductor, or that the latter were negligent in attempting the crossing.</p> <p>2. An electric railway car arrived at a grade crossing over which the tracks of a steam railroad company were also laid. The safety gates were down when the trolley car arrived but were soon raised by the gate tender, an employee of the railroad company, thus inviting those in charge of the trolley car to pass over the crossing. Before starting his car the conductor walked ahead as was his duty, looked up and down, saw the track was clear, and then signaled the motorman to bring the car over. While passing over the crossing the trolley came off the wire and the car stranded across the railroad tracks. An engine of the railroad company standing about seventy feet distant at the time the trolley car started to make the crossing, suddenly and slowly without warning, began to move in the direction of the crossing and its speed being accelerated as it proceeded and no effort seemingly having been made to stop it by those in charge of the engine, a collision with the stranded trolley car resulted and the plaintiff was injured. The trolley car was in good repair and the tracks and overhead construction were of the kind in general use, there was no allegation of faulty construction or of careless or insufficient maintenance, and no evidence of negligence in the operation of the system or in running the car, save the stranding of the same, was produced. Held, that the plaintiff was not entitled to recover.</p>

<p>Boroughs■ — Municipalities—Telegraph and telephone companies — License tax — Inspection—Costs of inspection — Act of April 17, 1905, P. L. 183.</p> <p>1. Under the Act of April 17, 1905, P. L. 183, relating to license fees imposed by municipalities upon public service corporations which have poles, wires, conduits or cables in the public streets, the court, in determining the amount of the annual license fees that may be properly charged, is controlled by the cost of inspection and regulation to the municipality. If there be no inspection or supervision by the municipality there can be no license fee imposed, because under such circumstances no expense will be incurred for which the statute makes the company liable. Under the act no flat per pole or per mile charge can be made applicable throughout the commonwealth, because in no two cases will the cost of inspection be the same.</p> <p>2. In the exercise of their police powers, municipalities may require poles to be kept in proper condition and wires in safe repair and may see to it that the conduits and other appliances do not interfere with the public use of the street. For these purposes they may provide reasonable inspection and regulation, and impose the cost thereof on the companies.</p> <p>3. A borough imposed upon a telegraph and telephone company-annual license fees which were fixed at $1.00 per pole, $2.50 per mile of wire or cable, and $30.00 per mile of conduit. The court below in proceedings under the Act of April 17, 1905, P. L. 183, found as a fact that the rates were reasonable, and entered a decree accordingly. The Superior Court reduced the fees and found that the amount paid by the company in question and other public service companies aggregated a sum which was about three times the sum paid to the borough’s single policeman during the year for inspection duties. It also appeared that after a conduit was laid and the ground had settled, that the in- • spection of the conduit was little more than perfunctory. It was also shown that very little time was needed in making an effective inspection of the pole line, and that for several years after a new construction there was but little to apprehend from the natural decay of material. It also was shown that the different companies made frequent inspections of their own. Held, that the amount of license fees as reduced by the Superior Court should be sustained under the facts of this case, but that the proper rule to guide the courts in every such case under the act of 1905 is the cost of necessary inspection.</p>

Appeal, No. 206, Oct. T., 1908, by plaintiff, from decree of C. P. Cambria Co., March T., 1908, No. 4, dismissing bill in equity in case of D. J. Llewellyn v. Sunnyside Coal Company. Bill in equity for an injunction. Before O’Connor, P. J. The opinion of the Supreme Court states the case. Error assigned was decree dismissing the bill.

<p>Appeal, No. 12, Jan. T., 1909, by plaintiff, from judgment of C. P. Montgomery Co., March T., 1908, No. 6, on verdict for defendant in case of John Hancock Ice Company v. Perkiomen Railroad Company.</p> <p>Trespass to recover damages for the destruction of an ice house by fire. Before Swartz, 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>[I charge you, under' this evidence, that you cannot find that this spark arrester was not of the proper style or character so as to comply with the requirements of the law. I listened carefully to the arguments of counsel, and to this evidence, and it is my, duty to give you the law as I understand it. So far as I recall this testimony — and I have considered it carefully — there is no witness who has condemned this spark arrester as not being of the proper style, or make, or form, or pattern, but the men of knowledge and experience in the business come upon the stand, and they tell you, from their knowledge and experience, they adjudged it in their opinion to be a safe or proper spark arrester; that it is as good as any that could take its place for the fuel that is to be used in the fire box. This spark arrester also has been in use for some years. You have heard the testimony. There is no one here that says it is not a spark arrester of the style or type that is efficient for the purposes for which it is placed into the engine. Therefore, I cannot allow you, who are not experienced in this business, to say that the men who have made this a study, or who have examined this style of spark arrester, I cannot allow you to overrule them and say that this is an inefficient spark arrester so far as the design and pattern are concerned. And you will take the law from the court.] [1]</p> <p>[Now we come to the testimony of Mrs. Fleger, the only other testimony upon this question of seeing sparks upon other days. Here also I caution you to dismiss from your minds everything that was said about the throwing of sparks, as long as six weeks after this fire, because that is too long a period. You will take the law from the court. The Supreme Court does not allow any such extended period as that. It does allow a reasonable period, at or about the time of the fire, a short time before, or a short time after, because that is the only way perhaps that the plaintiff would have any means of giving evidence as to the character of that engine, or as .to the condition of the spark arrester. But the law will not allow us to go six weeks away from the fire. Therefore, you will dismiss anything that was said about May 13.] [2]</p> <p>[Inasmuch as it is alleged that a particular engine caused the injury complained of, the inquiry is limited to the condition of that engine at the time, and evidence as to that particular engine upon another occasion six weeks later or of other engines unidentified, is irrelevant and cannot be considered by the jury.] [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-3) above instructions, quoting them.</p>

<p>Negligence — Infant—Personal injuries from fire — Street railway companies.</p> <p>In an action against a street railway company to recover damages for death of a little girl seven years old, the case is properly submitted to the jury where there is evidence that an employee of the defendant pushed a wheelbarrow load of waste and greasy material and newspapers onto a lot not owned by the defendant, set fire to the stuff while a high wind was blowing, waited until the mass was reduced to smoking embers, and then left the lot, and that the plaintiff and another little girl approached the embers, and while standing or sitting near them, the wind fanned them into a flame which communicated directly to the child’s clothing, or carried a live spark or cinder against the child’s clothing, igniting it.</p> <p>Mr. Justice Elkin dissents.</p>

<p>Principal and surety — Bond—Trust and trustees — Past misconduct of principal — Judgment against principal.</p> <p>1. Where a trustee is surcharged by the orphans’ court on the ground of gross negligence, and neither the trustee nor his surety takes an appeal from the decree, the surety cannot four years thereafter in a suit on the bond of suretyship allege that the trustee was not grossly negligent.</p> <p>2. As to official bonds, bonds of indemnity and bonds to insure the faithful performance of duty, and to secure a proper accounting by persons in fiduciary relations, the rule is that a judgment against the principal is conclusive against his sureties as to his misconduct, and failure to properly account.</p> <p>3. Application was made to a bonding company to become surety on the additional bond of a trustee. The application stated the amount of the entire trust estate, and that the bond was to secure the same. It also stated that the entire trust estate had come into the hands of the trustee, and that the purposes and nature of the bond were to secure to parties in interest the proper application of the principal and interest of the trust estate. The company made an investigation as to the amount of the trust estate, the character of the securities held by the trustee, and the investments made by him. The bond itself obligated the company to be answerable for the faithful discharge by the trustee of his duties, and that the trustee “shall faithfully apply all the assets, received by him in said trust estate.” Held, that the bonding company was liable for any loss resulting from the misconduct of the trustee, either before or after the date of the execution of the bond.</p>

<p>Public officers — State treasurer — State depositories — Principal and surety — Substitution of bonds — Acts of June 15, 1897, P. L. 157, and February 17, 1906, P. L. 45.</p> <p>1. Under the Acts of June 15,1897, P. L. 157, and February 17,1906, P. L. 45, the state treasurer has the primary right to take the bonds of the state depositories, but the bonds are not effective until they are approved by the board of revenue commissioners and the banking commissioner. The function of the board and the banking commissioner is limited to the approval of the bonds. They cannot take the initiative either in taking or surrendering a bond. The treasurer cannot accept a bond without the approval of the board, and the board cannot surrender a bond without the approval of the treasurer.</p> <p>2. A surety on a bond given under the Act of June 15,1897, P. L. 157, to secure repayment of deposits made by the state treasurer, is not discharged from liability thereon by the adoption of the board of revenue commissioners and the banking commissioner, of a resolution authorizing the surrender of such bond, and the acceptance of other bonds in its place. The state treasurer may ignore such a resolution, retain the bond, and hand it on to his successor.</p> <p>3. Bonds given by state depositories to secure the state funds in the hands of the depositories are not limited to the term of any particular state treasurer, nor are they intended merely to cover moneys deposited at the time the bond was given, or at most during the term of the treasurer then in office. They are continuing obligations to protect the state against loss, so long as moneys are deposited in the institutions giving them.</p>

<p>Appeal, No. 31, Oct. T., 1909, by W. B. Rhodes and Mary H. Rhodes, executors of Joshua W. Rhodes, deceased, from order of C. P. No. 2, Allegheny Co., July T., 1908, No. 179, discharging rule to open judgment in case of Commonwealth v. William Stewart et al.</p>

<p>Will — Probate—Issue devisavit vel non — Fraud.</p> <p>1. In issues devisavit vel non the sufficiency of the evidence is always for the court, and it is error to submit the question to the jury if the evidence be insufficient. .</p> <p>2. On the trial of an issue devisavit vel non where the only question was whether the alleged will was procured by trick, deception, fraud or duress, the proponent produced as a witness, the counsel who prepared the will, at the request of testator, and who retained it in his custody after its execution, also three other persons who identified the signatures of the subscribing witnesses, also three persons who identified the signature of the testator, and one person not a witness to the will, but who was present in the room when* it was executed, and saw the testator sign his name and the two subscribing witnesses attest the same. The will in the handwriting of the scrivener was also produced. None of these facts were controverted, but it was sought to be shown by the contestant that the testator had been ill for several weeks before the date of the execution, and that this illness had continued for a period so long that he could not have been in the office of the scrivener when the will was prepared. No witness, however, could fix the exact date when the testator was able to leave his house, or when he did so. Held, that the evidence was insufficient to-sustain a verdict against the will.</p>

<p>Appeal, No. 320, Jan. T., 1908, by defendant, from judgment of C. P. Berks Co., March T., 1906; No. 37, on verdict for plaintiff in case of estate of Matthias Mengel, deceased, v. Mohnsville Water Company.</p> <p>Appeal from report of jury of view. Before Ermentrout, P. J.</p> <p>At the trial the court permitted under objection and exception various witnesses for plaintiff to testify as to value. [1-4]</p> <p>The court charged in part as follows:</p> <p>I want to say further that the jury are not to consider as any evidence of the market value of the property, the price paid for the property in 1875 as the market value in 1902. Common experience of the world teaches us that the values of property change greatly. What a person would give for a property in 1875 may be totally different from what they would give in 1902. [The point the jury is to ascertain is the difference in the market value in 1902 when the water was appropriated. That is the period, not 1875 or 1870 or to-day, but in 1902 when the property was taken, immediately before and immediately after the valuations are to be made, and the difference is the proper measure of damages in this case, with interest.] [5]</p> <p>Verdict and judgment for plaintiff for $4,810.</p> <p>On a rule for a new trial Endlich, P. J., filed the following opinion:</p> <p>This is an issue in a proceeding instituted by the defendant company to assess the damages sustained by plaintiff by reason of the defendant's appropriation about 1902 of “part of the water of Kleinginna Creek,” a tributary of Wyo-missing Creek, the latter furnishing the power for plaintiff’s mill, connected with which there is farming land and buildings. The issue was tried before the late President Judge Ekmentrout.</p> <p>Certain reasons assigned in support of the defendant’s application for a new trial based upon the alleged action of the jury and of plaintiffs’ counsel in its presence during a view of the property, are not pressed. Obviously these were matters which, if deemed of sufficient importance, would have been at once brought to the notice of the court as ground for the withdrawal of a juror and continuance of the cause, or at least for such instructions by the court as might appear adequate to neutralize their possible undue effect. Upon very familiar principles the failure to take advantage of them in limine constituted a waiver of any objection based upon them. Accordingly the only reasons relied upon are those which allege error in the admission of the testimony of a number of witnesses upon the question of market values over objections made by defendant on the ground that they were not qualified for that purpose. The allegation of error in this particular is based upon what is said concerning the qualifications of witnesses as to market values in Lee v. Water Co., 176 Pa. 223; Lewis v. Water Co., 176 Pa. 230; Friday v. Railroad Co., 204 Pa. 405. It is not to be understood, neither is it contended, that these decisions announce any new doctrine upon the subject. On the contrary, the one last mentioned expressly proceeds upon the rules laid down in Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325, and Michael v. Pipe Line Co., 159 Pa. 99. Hence, subject to the requirement that the qualifications of a witness to give an opinion must appear and be passed upon by the court before he is permitted to do so, Michael v. Pipe Line Co., 159 Pa. p. 104, the rule still obtains that, if upon his preliminary examination he is shown to have any pretensions to speak on the matter, his competency to do so rests much in the discretion of the trial judge, Oil Co. v. Gilson, 63 Pa. 146, the value and weight of the opinion expressed being, of course, a matter entirely for the jury: Pittsburg, etc., Ry. Co. v. Vance, 115 Pa. 325; Lewis v. Water Co., 176 Pa. 230. The question whether or not there was in this case such error as calls for the setting aside of this verdict in allowing the witnesses referred to to express their opinions is to be judged of in the light of these principles.</p> <p>Levi W. Mengel, now a teacher'of natural history, has known mill property since his childhood, being the son of its deceased owner. At one time he operated the mill. He had attended for his father to the renting of it. He knew its condition at the time of the appropriation, and the relation of the water power as it then was to the demands made upon it. He knew that after the appropriation there was a diminution of the water power, though he could measure neither the amount of water running through the race before or after by gallons, nor the energy derived from it by horse power. He knew the general market value of properties in the neighborhood about 1902. It would seem that Lee v. Water Co., 176 Pa. 233, is directly in point as an authority vindicating the admission of this witness’s opinion.</p> <p>James S. Ammon was raised as a miller and had a mill at the time of the trial, besides being a contractor. He had known plaintiff’s mill for forty years, and was acquainted with the general market value of real estate in the neighborhood about 1902. He knew of no sales of mill properties there about that time, neither could he give the extent of the loss to the plaintiff’s mill by defendant’s appropriation in gallons, cubic feet or horse power. But he knew that previously the water power was good. He was permitted to express his opinion as to the difference in market values upon the assumption that before the appropriation the mill had a water supply sufficient for the capacity of its equipment (with which he was familiar) and thereafter an inadequate one — facts appearing not only by his own deposition, but elsewhere in the evidence. Again the objection to this witness would seem to go to the weight of his evidence, rather than to its competency, under the decision last cited.</p> <p>Albert Thalheimer, a manufacturer living in the city of Reading, but acquainted with plaintiff’s mill for thirty-six or more years down to the time of trial, and in a general way with the market value of property in the neighborhood before 1902, knew by information that the mill had, before the appropriation, a water power equal to fifteen horse power, and had had occasion to inform himself by inquiry as to the value of mill properties during the past ten years. O’Brien v. Railway Co., 194 Pa. 336, seems to justify the admission of this witness’s opinion.</p> <p>George G. Ruth is the only remaining witness to the reception of whose testimony the reasons assigned in support of this rule object. The objection, however, was not pressed at the argument. Whilst that circumstance might well be regarded as a waiver of the objection, an examination of his testimony leads to the conviction that he was entirely competent to give it under every rule recognized on the subject.</p> <p>Isaac S. Spatz is not one of the witnesses alleged in the reasons filed to have been incompetent to express the opinion he was permitted to give; but he was referred to as such at the argument. He lived at Mohnton, knew plaintiff’s mill for twenty-five years including 1902; and had a general- knowledge of market values of property in the vicinity at that time. He did not know how much water was taken from the mill or to what in horse power its loss amounted. He did, however, know what effect it had upon the running of the mill. He hesitated • about expressing an opinion as to the consequent difference in the market value of the property, but finally gave it. "What is said in Railway Co. v. Vance, 115 Pa. 325, 332, applies to this witness exactly.</p> <p>It is perhaps true that all this evidence was lacking in certain elements of precision. In part this may be' regarded as attributable to the indefinite character of the defendant’s petition under which the issue was framed, and which in an important sense is to be treated as a pleading underlying the trial: Miller v. Water Co., 148 Pa. 429; P. & R. R. R. Co. v. R. & P. R. R. Co., 12 Pa. C. C. Rep. 513. That petition avers simply the appropriation of “part of the water of” a certain stream, without designating any quantity. Necessarily the issue framed was equally indefinite, and the plaintiffs’ testimony went no further than the exigencies of the issue demanded. Had the petition and issue been more precise, it may be that the-competency of the witnesses offered to sustain the plaintiff’s side of it would have had to be tested by a more stringent rule in order to make their testimony responsive to the inquiry involved. It is to be observed, however, that more detailed data were furnished by the testimony adduced on behalf of the defendant, whereby.the jury was enabled to judge of the accuracy of the evidence submitted on behalf of the plaintiff and the value of the opinions of their witnesses on the effect of the appropriation upon plaintiff’s property. Nor ought it to be overlooked that the verdict, fixing the depreciation of the same in 1902 at $3,700, is far below the estimate of plaintiffs’ witnesses, averaging about $9,000.</p> <p>Upon the whole, the reasons urged in support of this application do not appear to be sufficient to warrant the granting of it, and, therefore, the rule to show cause is discharged.</p> <p>Defendant appealed.</p> <p>Errors assigned were (1-4) rulings on evidence, quoting the bill of exceptions; (5) above instruction, quoting it.</p>

<p>Appeal, No. 43, Oct. T., 1909, by defendant, from decree of C. P. Armstrong Co., Dec. T., 1908, No. 263, continuing preliminary injunction in case of The Kit-tanning Brewing Company v. American Natural Gas Company and The Kittanning Consolidated Natural Gas Company.</p> <p>Motion to continue preliminary injunction. Before Patton, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in continuing preliminary injunction without giving defendant an opportunity of being heard.</p>

<p>Appeals — Interlocutory order — Quashing appeal.</p> <p>An order dismissing a petition for an order to suspend a receiver’s sale until the receiver files an account is an interlocutory order from which no appeal lies.</p>

Appeal, No. 274, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., June T., 1905, No. 3,858, on verdict for defendant in case of George D. Sligo and Florence Sligo, his wife, v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Ferguson, J. The facts are stated in the opinion of the Supreme Court. The court gave binding instructions for defendant. Plaintiffs appealed.

<p>Trusts and trustees — Life tenant and remainder-man — Dividends on stock — Earnings.</p> <p>1. As between life tenant and remainder-man presumptively every dividend goes to the life tenant.</p> <p>2. Under a deed of trust in which the settlor transfers to trustees stock of two corporations with power in their discretion at any time to sell and reinvest the proceeds, and with power to pay over the “ dividends, income and profits,” thereof to the tenant for life, and after her death to convey the estate absolutely to her children, “dividend obligations” of one company and “ certificates of indebtedness ” of the other company, issued to stockholders and representing moneys which were deemed to have been appropriated by the two companies out of current earnings to pay for improvements and additions, are to be distributed to the tenant for life, in the absence of any evidence whatever that the issue of the dividend obligation, or the certificates of indebtedness lessened the value of the stock below what it was at the time of the creation of the trust.</p> <p>3. In such a case the burden is upon the remainder-man to show that the issue of the obligations and certificates decreased the value of the stock below what it was worth at the date of the execution of the deed of trust. Whether there has been a decrease in the value of the stock between the date of the creation of the trust, and the date of the obligations and certificates is not to be ascertained by deducting the aggregate credits of the profit and loss account at one of the periods from the aggregate credits of the same account at the other period, inasmuch as the amounts expended out of earnings for permanent improvements would have to be charged against earnings, and would leave that much less to go to the credit of the profit and loss account at the later period.</p>

<p>Appeal, No. 231, Jan. T., 1908, by plaintiff, from judgment of C: P. No. 4, Phila. Co., March T., 1907, No. 3,673, on verdict for defendant in case of Charles O. Conn v. Harry K. Hunsberger. .</p> <p>Trespass against a livery-stable keeper to recover damages for personal injuries caused by the vicious conduct of a horse. Before Audenried, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial 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>Negligence — Street railways — Boarding moving car — Contributory negligence.</p> <p>1. In an action against a street railway company to recover damages for personal injuries, it is error to submit the case to the jury where the evidence offered by the plaintiff shows that he attempted, without the knowledge of the conductor or motorman, to get upon a summer car‘at a time when it was going faster than a man could walk, and that practically at the same instant that his foot reached the running board, he was thrown to the ground.</p> <p>Trial — Improper remark of counsel as to damages — Withdrawal of jury.</p> <p>2. It is error for counsel to state to the jury the amount of damages claimed in the declaration. The damages are to be ascertained by the jury from the evidence and are not to be determined by any estimate of counsel not baséd on the evidence.</p>

<p>Appeal, No. 338, Jan. T., 1909, by defendants, from order of C. P. No. 1, Phila. Co., June T., 1902, No. 4,508, discharging rule to strike off discontinuance in case of Commonwealth to use of Charles Beckingham v. James E. Magee and Robert J. Barr.</p> <p>Rule to strike off discontinuance.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court discharging rule to strike off discontinuance.</p>

<p>Executors and administrators — Bond of administrator — Principal and surety — Affidavit of defense by surety.</p> <p>1. The same degree of particularity in an affidavit of defense is not required of a surety who sets up payment by the principal debtor as would be required of the principal.</p> <p>2. In an action upon an administrator's bond brought sixteen years after the audit, an affidavit of defense by the surety is sufficient in which he avers that he is informed, believes, and expects to be able to prove that the claim for which suit was brought had been paid in full by the administrator, but that he “cannot state the time, place and manner of said settlement at this time, for the reason that the same was secretly done by and between ” the administrator and the plaintiff.</p>

<p>Negligence — Municipalities—Defective roadbed — Contributory negligence — Case for jury.</p> <p>1. While the duty of vigilance is obligatory on everyone in the use of the city streets, a driver who is unable to give undivided attention to the roadbed, because of the care required in managing his horses and in avoiding other vehicles, cannot be held to have seen, or to have been reckless in not seeing, defects in a roadbed that would have been obvious to a pedestrian.</p> <p>2. In an action against a city to recover damages for death of plaintiff’s husband, it appeared that the deceased was riding on an elevated seat on an open wagon on a wide thoroughfare crowded with heavy teams, on which there were three tracks of a steam railroad. While crossing the tracks he turned his horses to one side to avoid a team crossing in front of him. One of the wheels of his wagon slid on a rail and went into a narrow depression or hole at its side, causing a jolt that threw him from his seat. Held, that the case was for the jury, and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Municipalities — Sidewalk—Open areaway — Uncovered areaway— Proximate and remote cause.</p> <p>1. Where a small boy running upon a sidewalk in a city trips over the projecting hinge of a cellar door, and falls into an open areaway and from that into the cellar, and is injured, the city is not responsible for his injuries because it permitted the areaway to remain uncovered. In such a case, the proximate cause of the injury was the obstruction in the sidewalk consisting of the projecting hinge of the door as to which obstruction the city was not charged with negligence.</p> <p>2. Damages are not properly chargeable to any alleged act of negligence, when it appears that subsequently an independent and unexpected factor intervened which in itself was the real cause of the mischief. Legal responsibility in such a case rests .upon the intervening cause, and unless that was the fault of the original wrongdoer the latter is relieved from responsibility.</p>

<p>Appeal, No. 50, Jan. T., 1909, by defendant, from judgment of O. & T. Luzerne Co., Sept. T., 1908, No. 441, on verdict of guilty of murder of the first degree in case of Commonwealth v. Stanley Nazarko.</p> <p>Indictment for murder. Before Lynch, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned appear by the opinion of the Supreme Court.</p>

<p>Trespass — Damages—Loss of employment — Attorney at law.</p> <p>A passenger in a street car, had his face slightly scratched by glass in a collision. At the instance of an acquaintance he went to the office of two attorneys and instructed them to bring an action against the company. He was examined by a physician employed by the attorneys, who reported to them and to him that there was no evidence of injury. He was subsequently examined by a physician employed by the railway company at the office of the physician who had first examined him. After the second examination the plaintiff, fearing that he would lose his position in a department store in which he was employed because of having brought the action, directed his attorneys to abandon it, and they did so. The head of the department in which he was employed discharged him because of information received when the officers of the railway company were making an investigation as to the extent of his injury. He subsequently brought an action against the attorneys and the acquaintance who introduced him to them to recover damages caused by the loss of employment. Held, that he had no cause of action.</p>

<p>Negligence — Injuries by a carriage and team — Speed—Crossing at public street — Nonsuit.</p> <p>In. an action by a girl to recover damages for personal injuries sustained by being run down at a public street crossing by a team and carriage, it is error to enter a compulsory nonsuit where the evidence offered by the plaintiff, although somewhat conflicting and not easy to reconcile, tends to show that the defendant at the time of the accident was driving at a high rate of speed, that the speed was within his control, and where, taking everything into consideration, including the obstructions to view, a reasonable inference can be derived that the defendant fell short of his full duty to the plaintiff.</p>

<p>Trusts and trustees — Executors and administrators — Assessment on stock — Corporation—Parties.</p> <p>Where a testator leaves his estate, including shares of stock in a foreign corporation, to his executors in trust for the uses and purposes declared in his will, and the executors file their account, and a decree is entered awarding to them as trustees the stock in question, a decree of a court of the state of the corporation’s origin subsequently entered levying an assessment against the executors of testator is no ground for an entry of a judgment in this state against the trustees. The decree awarding the stock to the trustees cannot be impeached collaterally, and as long as it stands the stock in the hands of the trustees is discharged of liability for any indebtedness of the testator’s estate. In such a case the fact that the individual trustees were the same persons as the executors of the will is a matter of no significance.</p>

<p>Receivers — Taking property into foreign jurisdiction — Attachment execution.</p> <p>1. Where money comes into the hands of receivers of an insolvent corporation appointed by the courts of another state and thereafter such money is brought by the receivers into Pennsylvania, it cannot be attached by a creditor of the corporation in this state.</p> <p>2. A receiver who has obtained rightful possession of personal property within the jurisdiction of his appointment will not be deprived of his possession, where he takes it in the performance of his duty, into a foreign jurisdiction. It cannot there be seized by creditors of the debtor residing within such foreign jurisdiction; and the rule applies not only to the personal property itself, but also to money representing the proceeds of the sale of such property, after such money has been brought into the foreign jurisdiction.</p> <p>Attachment execution — Funds received by garnishee after service of writ.</p> <p>3. The effect of an attachment is to bind all funds of the defendant debtor that come into the hands of the garnishee after service of the writ and before judgment is entered.</p>

<p>Principal and surety — Bond—Federal building contract — Voluntary payments.</p> <p>Where a surety on a bond given in pursuance of the act of congress to secure “payment to all persons supplying labor and materials” to a contractor in the erection of a public building, voluntarily pays a judgment obtained against it by a material man, and also an uncontested account, and subsequently another subcontractor establishes a claim which together with the amounts paid exceeds the penal sum of the bond, the surety will not be liable to such subcontractor merely for the difference between the amounts previously paid to other creditors and the penal sum, but its liability will be determined by ascertaining the per centum the creditors would be entitled to on an equal distribution among all, even if the result is a payment by the surety of an aggregate in excess of the penal sum of the bond. In such a case the surety company could have protected itself by restraining execution on the judgment, and by refusing to pay the uncontested claims, until the claim of the subcontractor of which the surety had knowledge, was adjusted.</p>

<p>Practice, C. P. — Judgment—Opening judgment — Affidavit of defense — Supplemental affidavit of defense.</p> <p>1. Where the court makes an order allowing judgment to be entered for want of a sufficient affidavit of defense, but before judgment is actually entered, the defendant moves for permission to file a supplemental affidavit of defense, and thereafter judgment is entered, the court may open the judgment and permit a supplemental affidavit of defense to be filed.</p> <p>Bond — Bond of indemnity — Mortgage—Mortgage held as collateral —Interest.</p> <p>2. In an action on a bond of indemnity it appeared that the plaintiff, a bank, held a mortgage against certain real estate, and to protect itself bought in the real estate at a sale in bankruptcy. The sale discharged the lien of the mortgage. The defendants purchased the property from the plaintiff, and gave the bond in suit by which they agreed to protect the plaintiff from any loss which might result from the mortgage not being paid in full out of the proceeds of the sale upon distribution thereof. The bond stipulated for the payment of “the difference between the said mortgaged debt with interest on the same until the same is paid together with costs,' and the amount awarded to said mortgage upon distribution.” No actual distribution or payment was made until two and one-half years after the sale. The plaintiff then received the full amount of the mortgaged debt, with interest thereon to the date of the sale. It then brought suit to recover interest from the date of the sale to the date of distribution. Defendant filed an affidavit of defense which averred that the mortgage was held by plaintiff as collateral security for a loan, that the plaintiff had been paid all interest on the loan by the debtor, and that it had not sustained any loss or damage by reason of the mortgage not having been paid in full with interest and costs. Held, that the affidavit of defense was sufficient to prevent judgment.</p> <p>3. In such a case when the debtor paid the loan, including the interest for which the suit on the bond was brought, his obligation to the bank was met, and the assignment of the bond to the debtor by the plaintiff could not revive the obligation or impose a further liability upon the defendants.</p>

<p>Will — Executors and administrators — Carrying on business of decedent — Estoppel.</p> <p>1. Where a testator directs that his sons shall continue his business after the death of his wife, and one of his sons who was also the sole executor, carries on the business as executor, with the acquiescence of the widow and testator’s children, who are legatees, and it appears that the widow receives her living expenses from the proceeds of the business, neither the widow nor the children can object to the payment of creditors whose claims are based upon transactions with the executor while continuing the business after the death of the testator.</p> <p>Decedents’ estates — Claim of widow — Loan to husband — Evidence.</p> <p>2. The claim of a widow to recover the amount of a loan from her husband’s estate will be sustained, where a son who was manager of the decedent’s estate, testifies that the money was raised on a mortgage of his mother’s separate property, that it went into the decedent’s business, that after his father’s death the mortgage was paid off out of money received from an insurance policy on the decedent’s life in the widow’s favor, and such testimony is not contradicted, but is corroborated by papers relating to the different transactions. In such a case the mere relationship of the parties is not sufficient in itself to discredit the son’s testimony.</p>

<p>Taxation — Assessments—Uniformity—Coal lands.</p> <p>1. In order to conform to the constitutional principle of uniformity in taxation, the courts will, in determining the valuation of coal lands, take into consideration the fact that the assessed value of real estate in the district in which the coal lands are situated is below its actual value, and will assess such lands according to the ratio of the actual to the assessed value of other lands in the district; but in determining what the proper ratio is, the court cannot include personal property so as to increase the percentage of ratio to the disadvantage of the owners of coal lands.</p> <p>Taxation — Assessments—Appeals—Act of April 19, 1889, P. L. 37.</p> <p>2. On appeal from the board of revision to the court of common pleas under the act of 1889, the proceeding as to proofs and pleadings is de novo and the courts must hear and determine the questions in dispute under their general equity powers in the same manner as if the controversy were between private litigants.</p>

<p>Appeal, No. 371, Jan. T., 1908, by The Delaware, Lackawanna & Western Railroad Company, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 515, on appeal from tax assessment in the Matter of the Assessment of Land of The Delaware, Lackawanna & Western Railroad Company in Dickson City Borough.</p>

<p>Equity — Nuisance—Mandatory injunction.</p> <p>1. A mandatory injunction is a proper remedy in a proper case, and may lie to compel the abatement of a nuisance in some instances. It is an extreme remedy and should only be applied when legal rights are unlawfully invaded, or legal duties are willfully or wantonly neglected. This should be the controlling thought in the mind of a chancellor in the consideration of the respective rights and duties of the parties in a proceeding where a bill is filed praying for such relief.</p> <p>Mines and mining — Burning mine — Nuisance—Mandatory injunction — Equity.</p> <p>2. A mandatory injunction will not be granted against the lessee of a burning mine at the instance of the municipal authorities of a city within whose limits the mine is situated, where it appears that the company defendant had tried for a year and one-half to put out the fire, and resorted to every means within its power to extinguish it, and in so doing had spent an amount of money equal to its entire capital stock.</p> <p>3. In such a case the injunction will not be granted because (1) the fire has ceased to be a nuisance, and has become a public enemy; (2) the legal rights of the complainant have not been willfully and wantonly disregarded; (3) the enforcement of the injunction would require too great an amount of supervision by the court, and (4) because the corporation should not be compelled to do more than it had already done.</p>

Appeal, No. 27 Jan. T., 1909, by plaintiffs, from decree of C. P. Lackawanna Co., March T., 1908, No. 10, dismissing bill in equity in case of John McCabe et al. and City of Carbondale v. W. W. Watt and The Finn Company. Bill in equity for mandatory injunction. The facts appear by the opinion of the Supreme Court, and by the report of the previous case. The court entered a decree dismissing the bill as to W. W. Watt. Error assigned was the decree of the court.

<p>Trusts and trustees — Irrevocable deed of trust — Attem/pt to defeat trust — Judgments—Execution—Premature attachment — Execution.</p> <p>Where a cestui que trust in an irrevocable deed of trust gives a judgment note as security for a loan, and the person making the loan knowing that it is a mere device to defeat the trust enters up the judgment and issues execution the day before the maturity of the note, the issuance of the attachment execution against the trustee is premature, and is such an irregularity as cannot be waived by the acquiescence of the defendant in the judgment. In such a case the trustee must act in good faith to the cestui que trust, and by using the information in his possession contest every inch of ground to prevent a recovery by the attaching creditor. If he fails to do so he will be liable in damages.</p>

<p>Appeal, No. 95, Jan. T., 1908, by defendant, from judgment C. P. Delaware Co., Jan. T., 1906, No. 185, on verdict for plaintiff in case of Bertha Gill-man v. Media, Middletown, Aston & Chester Electric Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>At the trial when Dr. Paxson was on the stand he was asked the following question:</p> <p>“Q. If Bertha Gillman, prior to June 9, 1906, was in good physical health, and on that day received an injury on a trolley car which fractured her coccyx, and has since that time been operated upon for that fracture, and is in poor physical health now, and has been since that time, might, in your judgment, that injury cause her present poor physical health? ”</p> <p>Mr. Howell: I object to that question. I presume it is intended to be a hypothetical question. It does not state all of the facts of the case, and I think it is improper.</p> <p>The Court: I do not think a hypothetical question must necessarily state all of the conditions. There may be thousands of conditions not stated.</p> <p>Mr. Howell: Yes, sir. That is the point, and to ask whether, applying it to this woman, a certain thing itself were anything else, when there are other complications admitted, it permits the drawing of a wrong inference.</p> <p>The Court: What other complications?</p> <p>Mr. Howell: Dysmenorrhea, painful menstruation, previous history of an operation and the removal of ovaries.</p> <p>The Court: State your proposition again.</p> <p>Question read as follows:</p> <p>“Q. If Bertha Gillman, prior to June 9, 1906, was in good physical health, and on that day received an injury on a trolley car which fractured her coccyx, and has since that time been operated upon for that fracture, and is in poor physical health now, and has been since that time, might, in your judgment, that injury cause her present poor physical health? A. Yes, sir.”</p> <p>The Court: I think you had better add to that, there being no other physical conditions excepting those mentioned, because that excludes everything else, you see.</p> <p>Mr. Fronefield: I have no objection to that.</p> <p>The Court: Add that to it, and I will let it be answered.</p> <p>Mr. Howell: Your honor understands that is the very point of my objection?</p> <p>The Court: I say, there being no other physical conditions.</p> <p>Mr. Howell: The testimony is there were others.</p> <p>The Court: I do not know whether there are or not. You can cross-examine on that. The objection is overruled. Exception. [1]</p> <p>Mr. Fronefield: “Q. Will you please answer the question? A. My answer is that I only examined the woman one day, and never have seen her since except in the courtroom, and what I found at that time I believe to be the cause of all her trouble then. As to now, I know nothing about. ”</p> <p>Dr. Charles S. Potts, a witness for the plaintiff, was asked this question:</p> <p>Mr. Fronefield: “Q. From your examination of Bertha Gillman, after having received a full history of her case, what, in your judgment is the least time required and the least expense required to give her the rest cure of which you have spoken?”</p> <p>Mr. Howell: I object.</p> <p>The Court: If it is divided up, I will let him state the least time and rule the other out.</p> <p>Mr. Fronefield: I will make the question refer to the least time required.</p> <p>Mr. Howell: I object to that question.</p> <p>The Court: The doctor may give his judgment as to the probable time in which she will get well with proper treatment.</p> <p>Mr. Howell: My objection is the doctor does not know the entire history of the case.</p> <p>The Court: I take it for granted if he has not sufficient knowledge to enable him to state it he won’t state it. If he has no such knowledge as will enable him to give an opinion upon that, I take it for granted he won’t give it.</p> <p>Mr. Howell: He said a year.</p> <p>“A. I probably said a year.”</p> <p>Mr. Fronefield: “Q. What is your answer to that question, • the least time?”</p> <p>The Court: You may state whether in your judgment she would be restored in a year; exception. [2]</p> <p>“A. If you give me the least time, I would say six months, although I would not promise it in that time.”</p> <p>Dr. Charles S. Potts, a witness for the plaintiff, was asked this question:</p> <p>“Q. Doctor, in your judgment, could Miss Gillman’s condition be caused by the accident of being hurt on a trolley car, such as has been detailed in your presence here. A. Yes, sir. Undoubtedly so.”</p> <p>Mr. Howell: I object.</p> <p>Objection overruled. [3]</p> <p>Mr. Howell: I formally ask an adjournment until to-morrow to permit the obtaining of the presence of the two physicians who are prevented from coming on account of important cases of illness that they cannot leave.</p> <p>Mr. Fronefield: Who are the physicians?</p> <p>Mr. Howell: Dr. S. R. Crothers and Dr. Joseph Manasses.</p> <p>Mr. Fronefield: I object to the continuance.</p> <p>The Court: Objection sustained. [4]</p> <p>Mr. Howell: I then would formally ask for a continuance of this case on account of the absence of a material witness who has been subpoenaed to be here. He has been in attendance, but as he is a physician was compelled to absent himself in attendance of an ill patient — the witness is Dr. S. R. Crothers. I ask for a general continuance to the next term of court.</p> <p>Mr. Fronefield: That is also objected to for the same reason and because Dr. Crothers simply is called as an expert to give us his opinion as to the illness of the plaintiff, it appearing that the doctor was present, representing the defendant company, at the operation in 1906.</p> <p>The Court: Objection sustained. [5]</p> <p>The court charged the jury in part as follows:</p> <p>[The testimony read this morning of Dr. Manasses says that she was nervous and neurasthenic, both, if there is any difference in them what they are, prior to June, 1904, and the contention of the defendant is that what she is suffering from now is but a continuation of her old trouble and that there was nothing took place on this car on June 9,1906, that brought about the trouble or increased it, because it is quite apparent that if it was brought about by the shock given to her by being thrown against the car and the company was negligent and she was not, then she would be entitled to recover and if that was the primary cause of the trouble, and she would also be entitled to recover if that happened if it increased her former difficulties or trouble. There has been some testimony about whether that would tend to increase the former trouble, if it had existed. You will remember it. It is all a question for you entirely. No law about it except the law the court has laid down.] [6]</p> <p>[Now, she will be entitled to recover if you find she was not negligent, find that the company was, and find that the cause of her trouble arose out of the shock which she says she received there, or her trouble increased by reason of what took place there. Then what will compensate her? She will be entitled to be compensated for her pain and suffering, whatever that has been in the past and will likely be in the future. It is a very difficult thing to .tell, but you will have to take up that question and dispose of it. She will also be entitled to be compensated for her loss of earning power.] [7] .</p> <p>Defendant presented these points:</p> <p>4. If the jury believe that the plaintiff got on the car while it was standing still and that the car was started in the usual and ordinary way after the plaintiff was in the car, but before she had an opportunity to seat herself, there can be no recovery in this case, and your verdict must be for the defendant. Answer: We would affirm that unless the car was started hastily, recklessly, power turned on so that it would start suddenly, because it would be negligent for a motorman or a conductor, where they had charge of the moving of a car to start it so suddenly and recklessly as to throw persons down who were in the aisle seeking seat. That is affirmed as a general proposition. [8]</p> <p>11. The burden is on the plaintiff to convince the jury that any pain and suffering she may have endured was caused by an injury at the defendant's hands, and from no other cause. Unless she has done so, your verdict must be for the defendant. Answer: That is refused. If it means that all her troubles must have arisen out of the accident. In other words, if the condition she- says she is in now was an old and previous condition and this accident happening was not the cause of that condition, but it increased it, still she may recover. Therefore this point is refused. [9]</p> <p>17. Under all the evidence in this case, the verdict must be for the defendant. Answer: That is refused. It will be for you. [10]</p> <p>Verdict and judgment for plaintiff for $3,950. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions; (4, 5) refusal of continuance; (6-10) above instructions, quoting them.</p>

<p>Appeal, No. 32, Jan. T., 1909, by defendant, from decree of C. P. Franklin Co., Equity Docket 2, page 359, on bill in equity in case of Amos B. Lehman v. Chambersburg & Gettysburg Electric Railway Company.</p> <p>Bill in equity for an injunction. Before Gillan, P. J.</p> <p>From the record it appeared that the bill was filed on June 8, 1902, and a preliminary injunction was granted. The defendant company laid its tracks along the south side of the Chambersburg turnpike road, except at the line of plaintiff’s land, where it deflected its tracks to the north side. After the passage of the Act of June 1, 1907, P. L. 368, the company resolved to straighten or relocate its tracks in front of plaintiff’s property, through the exercise of the right of eminent domain.</p> <p>The cause was then placed on the trial list and, after hearing, the court filed his findings of fact and conclusions of law and entered a decree on March 24, 1908, dismissing plaintiff’s bill and dissolving the injunction.</p> <p>On March 25, 1908, the defendant filed its bond and petition for the appointment of viewers.</p> <p>On March 31, 1908, plaintiff filed exceptions to the court’s findings and decree and on July 28, 1908, the court filed a second opinion and decree, continuing the injunction until the railway company could show it had obtained the consents of the supervisors and the owners of at least fifty-one per cent of the foot frontage of the entire distance to be traversed longitudinally on the highway by the relocation.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the final decree which was as follows:</p> <p>All the exceptions except that which relates to imposition of costs on the plaintiff are overruled. In order that the defendant may, if it can, avail itself of the power and exercise the right of eminent domain, the preliminary injunction heretofore granted is dissolved, in so far as the same may interfere with the defendant’s beginning and conducting condemnation proceedings according to law; and same is made perpetual for the purpose only of preventing the construction by the defendant of its railway and appliances on the south side of the turnpike in front of plaintiff’s property, without having brought itself within the provisions of June 1, 1907, in accordance with the views expressed in the opinion filed July 28, 1908. The plaintiff’s bill will be dismissed upon the defendant availing itself of the power and exercising the right of eminent domain in accordance with the views expressed in said opinion. Defendant to pay the costs.</p>

<p>Appeal, No. 2, Oct. T., 1908, by defendant, from judgment of C. P. Lawrence Co., March T., 1901, No. 82, on verdict for plaintiff in suit of First National Bank of New Castle v. City of New Castle.</p> <p>Assumpsit for money had and received. Before Williams, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $7,657.45. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 181, Jan. T., 1908, by Phoenix Insurance Company Garnishee, from order of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 30, making absolute rule for judgment against garnishee on answers in case of Louis Wiener to use of J. R. Pringle v. The American Insurance Company of Boston, defendant, and Phoenix Insurance Company Garnishee.</p> <p>Foreign attachment.</p> <p>Rule on garnishee for judgment on answers.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order making absolute rule for judgment.</p>

<p>Beneficial associations — Change of beneficiary — Interest of beneficiary —Sister—Widow—By-laws.</p> <p>1. A beneficiary named in a certificate or policy issued by a beneficial association acquires no vested interest in it, nor a right to anything, during the lifetime of the member to whom it is issued, but merely an expectancy, which does not become a vested or absolute right to the proceeds of the certificate or policy until the death of the assured.</p> <p>2. Where a member of a beneficial association names his sister as beneficiary but retains the certificate in his own possession, and thereafter, upon marrying, surrenders the certificate and the association issues to him a new certificate wherein the wife is named as beneficiary, the sister after the member's death has no right to the death benefits; and this is the case although a by-law of the association provided that no transfer should be made without the consent of the beneficiary, and the sister did not in fact consent to the change of the beneficiary. In such a case the retention of the certificate and its surrender were not a transfer of the certificate; and even if the by-law was violated by the issuing of the second certificate the association would be estopped from questioning the regularity of that certificate, for, by issuing the same, it waived all the provisions of the by-laws as to transfers.</p> <p>3. By-laws of a beneficial association as to transfers are solely for the convenience and protection of the association, and may be waived by it without any person having a right to complain.</p>

<p>Decedents’ estates — Diquor license — Executors and administrators.</p> <p>1. While a license for the sale of liquor is not in itself marketable, yet as it is granted for a particular place, it may add materially to the value of the fixtures, good will and unexpired term of the lease, if there be any. These an executor or administrator has for sale and they form part of the assets of the decedent’s estate, for which it is his duty to obtain the best price possible, either by public or private sale.</p> <p>2. Though a liquor license is not, per se, an asset of the estate of a decedent to whom it was issued, the representative of such estate can make no personal profit through it, and if he chooses to make of it a valuable asset for the estate, on no principle ought it be taken from the estate and made an asset of his own to satisfy his creditors. If a license is not per se an asset of an estate, it certainly is not an asset of anyone else.</p> <p>3. Where an administrator has a liquor license granted to the decedent transferred to himself individually, but pays transfer charges and subsequent renewals out of moneys of the estate, deposits the moneys from the business in a bank for the benefit of the estate, and pays therefrom the expenses of the business, reserving nothing for himself, not even commissions, a personal creditor of the administrator cannot attach such moneys or the proceeds of the sale of such license as the individual property of the administrator.</p>

<p>Deeds — Building restriction — Covenant.</p> <p>Where a restriction, in a deed forbids the erection of a building exceeding nine feet in height “on the rear end of a lot of ground,” described in the deed, the owner of the land may be restrained by injunction where he admits that he proposes to erect a brick factory five stories high, which will occupy the entire space of the lot in question and other adjoining lots owned by him, up to and on the rear line of such lots. In view of the announced intention of the owner the words “rear end of the lot,” are not indefinite.</p>

<p>Appeals — Assignments of error — Separate questions — Point—Charge —Judgment non obstante veredicto — Act of April 22, 1905, P. L. 286.</p> <p>1. An assignment of error which raises three separate questions, violates rule 29.</p> <p>2. An assignment of error which complains that the court erred in not instructing the jury to find for the plaintiffs, is bad, where the record shows that no request for binding instructions in favor of plaintiffs was made.</p> <p>3. Where a portion of the charge is assigned as error, such portion must be set forth in the assignment totidem verbis in accordance with rule 30.</p> <p>4. The trial court cannot be convicted of error in refusing judgment for plaintiffs non obstante veredicto, where it appears that counsel for plaintiffs submitted no point at the trial requesting binding instructions in their favor.</p> <p>Landlord and tenant — Lease—Wharf property — Cost of cleaning dock . — Repairs.</p> <p>5. Where land abutting on a navigable river is described in a lease as exactly coterminous with a pier constructed thereon, and as extending into the river as far as the port warden’s low-water line, and the lease contains an additional grant of wharf property extending into the river from the previously described premises from port warden’s low-water line to port warden’s pier headline, “together with all water rights appurtenant thereto,” the landlord cannot, in the absence of an agreement to do so, compel the tenant to pay the cost of cleaning the adjoining dock required under the law to be paid by the owner of the pier.</p>

<p>Appeal, No. 218, Jan. T., 1908, by defendant, from, judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 993, on verdict for plaintiff in case of James Carter v. Henderson & Company, Limited.</p> <p>Trespass to recover damages for personal injuries. Before McMichael, P. J.</p> <p>The defendant offered the following point:</p> <p>2. The allegata and probata do not agree, as there is no evidence of any failure on the part of the defendant to provide safe and proper appliances. Answer: Refused. [2]</p> <p>Plaintiff presented this point:</p> <p>8. Although there had been an independent contractor, the defendant would, nevertheless, be responsible, if he continued to exercise control over the method and manner of doing the work; or (b) if he interfered with such subcontractor, and assumed direction of the work or (c) if such subcontractor performed the work under the direction of the defendant or his representative. Answer: That, I think, is the law. The other points I decline. [3]</p> <p>The court charged in part as follows:</p> <p>[If the mortar was not dry, was spongy, it is for you to say whether or not that was the cause of this accident. I do not leave it as a question of fact for you to say whether that, mortar was improperly mixed or of bad materials, for there is ho evidence on that. But consider this: Was or was not the mortar dry in the wall when the truss was on there.] [4]</p> <p>[I at any rate call your attention to the third view I have of the case which will be for your determination, and that is that the stone masons and stone setters built their wall according to the specifications, according to the contract, but that the trusses were placed upon the wall when the mortar was not dry, and that as a result of that the pilaster buckled and bulged perhaps, or at any rate part of it gave way and slid off, and that the other face of the wall was slightly disrupted. You will remember the testimony of the man who constructed that wall, that he built it according to the specifications with binder stones in, but that after the accident the front of the wall was slightly disrupted. I want you to consider this testimony very carefully. Now, what happened? Whose fault was it?</p> <p>[As to the wall being built according to the specifications, I think I have called your attention to the fact that the architect and the supervisor and the man who constructed that wall testified to the fact that it was built accordingto specifications. There is no positive countervailing testimony as to that. I am bound to say that to you. But there is testimony from which you could, if you wish, draw the inference that the mortar was not dry. I think I have gone over that carefully. I cannot take it away from you, but I want to call your' attention to the weight of the testimony and the preponderance of the testimony on which that point is in favor of the defendant.] [5]</p> <p>[The construction of the contract is for me. Under this contract Henderson & Company who were the general contractors, had general control of the work. They owed a duty, not' only to their own employees, but to all except trespassers who were there. They owed a duty to be careful. Did they discharge that duty? Did their superintendent — and that is a. question of fact you will have to consider — was he careful? The only testimony I recollect as to the superintendent was that he gave the center, marked it on the metal cap which was above the stone cap which was on the top of the pilaster — he gave the center and the iron men put the iron work there. Just when he did that I do not recollect. There may be testimony, and that is for you. But was or was not Henderson & Company’s superintendent careful to see that that pilaster was in good condition to bear the superincumbent weight?] [6]</p> <p>Verdict and judgment for plaintiff for $15,934. Defendant' appealed.</p> <p>Errors assigned were (1) in refusing binding instructions for plaintiff; (2-6) various instructions and (8) refusal of defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeals — Assignments of error — Exception—Evidence.</p> <p>1. An assignment of error to the action of the trial court in directing a verdict for defendant will not be considered by the appellate court where the record shows that no exception was taken to the instruction at the trial.</p> <p>2. Where the trial court directs a verdict for the defendant without objection or exception by defendant an assignment of error by the plaintiff to the disallowance of testimony cannot be considered.</p>

Appeal, No. 198, Jan. T., 1908, by defendant, from judgment of C. P. No. 2, Phila. Co., Jan. T., 1908, No. 198, on verdict for plaintiff in case of Sophia Griesemer v. Suburban Electric Company. Trespass to recover damages for death of plaintiff’s husband. Before Wiltbank, J. The facts are stated in the opinion of the Supreme Court. Defendant presented these points: 2.

<p>Executors and administrators — Commissions—Unconverted assets.</p> <p>Where none of the inventoried assets of an estate have been converted, and the whole estate has been awarded back to the executors for further accounting, a commission of five per cent on the unconverted assets cannot be allowed.</p>

<p>Negligence — Master and servant — Dangerous appliances — Delegation of duty.</p> <p>1. The absolute duty is upon an employer to see that his employees are supplied with reasonably safe instruments for the work they are given to do. He cannot relieve himself of responsibility by delegating this duty to another. When he delegates the duty hé must see to it at his peril that the duty is performed. Failure on the part of the representative or substitute because of disregard of instructions, is the failure of the principal.</p> <p>2. In an action by an employee against his employer to recover damages for personal injuries sustained while working on a defective ladder, it appeared that the defendant company, having its headquarters in one city, sent to another city several miles distant tools and appliances, including ladders, for the purpose of equipping a factory in the latter city. The superintendent of the defendant placed the appliances in the hands of the foreman in charge of the work, and gave him instructions in reference to it. Subsequently the foreman found that the ladders supplied by the company were not suitable for the work which the plaintiff had to do, so he procured another ladder of suitable length, but not belonging to the defendant, and furnished it to the plaintiff with instructions to use it. This was the defective ladder which caused the accident. It appeared that the foreman had instructions to draw upon the company’s storehouse in the other city for what supplies in the way of tools and appliances were necessary. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Negligence — Railroads—Crossing tracks — '-Conflicting statements of plaintiff’s witness.</p> <p>1. In an action against a railroad company for the death of plaintiff's husband killed on railroad .tracks at a crossing, where the plaintiff's case rests largely upon the testimony of the only person who saw the accident from beginning to end, the fact that such witness'makes contradictory and wholly irreconcilable statements, does not in itself make the case one for binding instructions for defendant. It is for the jury to decide what credit they will give the witness, and which of his statements, if either, they will accept.</p> <p>2. In passing upon a motion for nonsuit, where the evidence for the plaintiff is contradictory, it is the duty of the court to allow it the significance most favorable to plaintiff, since for all the court may know, that view may prevail with the jury.</p> <p>3. In an action to recover damages for the death of a person killed at a crossing which was not a public crossing, laid out or adopted by municipal authority, it appeared that the crossing was on the property of the defendant railroad company, and had been made by it for the convenience of passengers in passing between stations on opposite sides of the tracks. For many years it had been used by the general public as well, not only with the knowledge of the defendant company, but by its encouragement. The deceased was not a passenger. Held,, that it was proper for the court to charge that if the jury believed the evidence as to the crossing, the deceased was not a trespasser, and that the defendant owed him the same duty that it owed passengers using the crossing.</p> <p>Amendment — Practice, C. P. — Name of corporation — Railroad company.</p> <p>4. Where in an action of trespass the plaintiff's statement improperly describes the defendant railroad company as a corporation of the state of Pennsylvania, an amendment may be allowed so as to correctly describe it as á corporation of the state of Maryland. In such a case the defendant is in court, and the change brings no new party on the record.</p>

<p>Ejectment — Title—Adverse possession — Evidence.</p> <p>In an action of ejectment where the plaintiff shows an apparently good paper title, and the defendants claim by adverse possession, the trial judge properly states the burden upon the defendants when he charges as follows: “When parties claim title by adverse possession, by virtue of the statute of limitations, it has been said time after time that that possession must be hostile, adverse, open, visible, notorious, and a continuous possession, in order for them to maintain title. In other words, the mere fact of parties going in now and then and cutting some timber, or cutting some ties, or some logs, such acts in themselves do not constitute adverse possession.”</p>

<p>Appeal, No. 191, Jan. T., 1908, by P. C. Foy, from order of C. P. Schuylkill Co., March T., 1908, No. 180, refusing a rehearing of an order sustaining exceptions to the nomination of P. C. Foy to the office of school director of the Borough of Girardville.</p> <p>Petition for rehearing of an order sustaining exceptions to nomination.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order refusing a rehearing.</p>

<p>Constitutional law — Oleomargarine—Criminal law.</p> <p>The Act of May 29, 1901, P. L. 327, prohibiting the manufacture and sale of oleomargarine, butterine and other similar products when colored in imitation of yellow butter, is constitutional.</p>

<p>Appeal, No. 196, Oct. T., 1908, by defendant, from judgment of Superior Court, April T., 1908, No. 203, affirming'judgment of Q. S. Washington Co., Feb. T., 1908, No. 159, on verdict of guilty in case of Commonwealth v. M. M. McDermott.</p> <p>Appeal from the Superior Court.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the judgment of the Superior Court affirming the judgment of the court of quarter sessions sustaining a verdict of guilty against the defendant.</p>

<p>Appeal, No. 246, Jan. T., 1908, by defendants, from order of C. P. Lebanon Co., March T., 1906, No. 62, dismissing exceptions to sheriff’s sale of real estate in case of Rebecca H. Seltzer v. Ellen B. Boyer, and her husband, Bassler Boyer, Mortgagors, and Ellen Boyer, Terre-Tenant, with notice to other terre-tenants.</p> <p>Exceptions to sheriff’s sale of real estate. Before Ehrgood, P. J.</p> <p>The opinion of the Supreme Court states the case. ■</p> <p>Errors assigned were in the following form:</p> <p>First Specification of Error. — The court erred in its finding and holding, in its opinion dismissing the exceptions to the confirmation of the sheriff’s sale; overruling the motion to set aside the sale; confirming the sale; and ordering and directing the sheriff “to execute and deliver a deed to the purchaser, in accordance with the Act of Assembly;” by saying as follows:</p> <p>“In this proceeding judgment upon which the Levari Facias was issued, was entered prior to the time when the said Ellen B. Boyer became insane, and subsequently Bassler Boyer, her husband, was appointed her committee ad litem under the Act of June 26, 1895, P. L. 381, to whom notice of the intended sale was given.”</p> <p>Second Specification of Error. — The court erred in its finding and holding, in its opinion, dismissing the exceptions to the confirmation of the sheriff’s sale; overruling the motion to set aside the sale; confirming the sale; and ordering and directing the sheriff “to execute and deliver a deed to the purchaser, in accordance with the Act of Assembly;” by saying as follows:</p> <p>“In this proceeding judgment upon which the Levari Facias was issued, was entered prior to the time when Ellen B. Boyer became insane; and subsequently Bassler Boyer, her husband, was appointed her committee ad litem, under the Act of June 26, 1895, P. L. 381, to whom notice of the intended sale was given. The notice given to Bassler Boyer, committee ad litem, was a sufficient notice to Ellen B. Boyer, the lunatic.</p> <p>Third Specification of Error. — The court erred in its finding and holding, in its opinion, dismissing the exceptions to the confirmation of the sheriff’s sale; overruling the motion to set aside the sale; confirming the sale; and ordering and directing the sheriff “to execute and deliver a deed to the purchaser, in accordance with the Act of Assembly;” by saying as follows :</p> <p>“As to inadequacy of price at which the property was sold by the sheriff, it is only necessary to carefully consider the testimony of Mr. Reinoehl, a witness produced and examined by the exceptant, to show that such exception cannot be sustained.”</p> <p>Fourth Specification of Error. — The court erred in entering its order and decree; dismissing the exceptions to the confirmation of the sheriff’s sale; overruling the motion to set aside the sale; confirming the sale; and ordering and directing the sheriff “to execute and deliver a deed to the purchaser, in accordance with the Act of Assembly;” by saying as follows:</p> <p>“And now, July 9, 1908, the exceptions to the confirmation of the sheriff’s sale are dismissed, the motion to set aside said sale is overruled, the sale is confirmed, and the sheriff is ordered and directed to execute and deliver a deed to the purchaser in accordance with the Act of Assembly.”</p>

<p>Appeal, No. 363, Jan. T., 1908, by defendant, from order of C. P. Schuylkill Co., July T., 1899, No. 319, discharging rule to open judgment in case of Annie P. Huppert v. Charles Huppert.</p> <p>Rule to open judgment. Before Marr, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Municipalities — Paving streets — Street railways — Equity.</p> <p>A court of equity will not enjoin a municipality at the instance of a street railway company from paving a street in a particular way where the court finds that such paving is a municipal improvement and betterment, intended for the better and modern accommodation of the traveling public, although such paving will increase the difficulty of operating street cars when weather conditions are bad, without, however, rendering the operation of the cars wholly.impossible.</p>

Appeal, No. 24, Jan. T., 1909, by plaintiff, from order of C. P. Schuylkill Co., March T., 1889, No. 173, discharging rule for judgment for want of,a sufficient affidavit of defense in case of William N. Leiby v. James L. Lutz and Frank Schwartz, trading as Lutz & Schwartz. Rule for judgment for want of a sufficient affidavit of defense. Before Bechtel, J. • The facts are stated in the opinion of the Supreme Court. Error assigned was the order of the court.

<p>Partition — Irregularities in proceedings — Equity rules of 1865.</p> <p>Where a bill for partition filed when the equity rules of 1865 were in force, bore an indorsement signed by all the parties defendant, admitting service, consenting to a decree pro confesso, and the appointment of a master without further delay or notice, such decree cannot be subsequently attacked on the grounds that the bill was not printed when served; that there was not indorsed on it a notice to appear, that it did not set forth the interest of the parties; that after the entry of the decree pro confesso the case was not placed on the equity argument list before the appointment of a master; and that an unprinted amendment containing more than 100 words was filed and not served.</p>

<p>Appeal, No. 368, Jan. T., 1908, by-defendant, from decree of C. P. Lackawanna Co., Sept. T., 1908, No. 32, awarding a preliminary injunction in case of Delaware & Hudson Company v. Olyphant Borough.</p> <p>Bill in equity for an injunction.</p> <p>Newcomb, J., found the material facts to be as follows:</p> <p>7. It is not disputed that the plaintiff and its immediate predecessor in title have since 1858 held, and been engaged in mining, the coal under the Pierce warranty tract in the township of Blakely — now the borough of Olyphant — together with surface rights exercised in connection with the mining operations; that these rights were acquired by grant from William Hull, the former owner; that in 1858 he demised the coal to Abel Barker and others to be held until “ all veins of suitable character” were mined out; that by its terms the lease was made subordinate to a contract which the lessees then had to furnish the coal to the plaintiff company; and that the right of the lessees to assign the lease to the plaintiff was therein expressly mentioned. The leasehold rights were so assigned in 1864. Both papers were duly recorded in Luzerne county. As between the parties to it the lease is still operative. The grant from Hull includes the “ right of way across said tract for every description of necessary road and also the use and enjoyment in the fullest manner of such portion of the surface of said tract as may be required for the erection of all necessary shops, barns, offices, engine houses, etc., and for the deposit of props, culm or other material accumulated in their business,” etc. The area of the tract is not shown, but it is believed to be about 400 acres.</p> <p>8. Some years after the demise to Barker and others Hull plotted a portion of the surface into .village lots with streets and ways. Two of these were Short and Thirteenth, also called respectively Second and Third streets. What, if anything, was ever done by him to open or define the streets on the ground does not appear. There is evidence that some work, indefinite in character, was done some years ago on a portion of Thirteenth street by a street commissioner of the borough. The neighborhood is only sparsely built up and at the point in question nothing appears to have ever been done to lay out or improve the streets. Indeed such.travel as there is in that direction leaves the course of Thirteenth street before reaching that point and takes its way across the open fields, apparently because that is the line of least resistance.</p> <p>9. The trestle in question was projected by the plaintiff's engineers upwards of a year ago, in connection with a new opening deemed necessary to get out a portion of the coal. It is designed to cross Thirteenth street, as plotted, diagonally at an elevation of about fifteen feet in order to carry cars conveying the rock and other waste from the new opening to the dumping grounds on another portion of the tract. The work of construction was stopped in August by the borough officials acting by authority of the council. The workmen were arrested and prevented from going on with the work by being threatened with further arrest, the borough claiming the structure was-a nuisance. This claim is based on the effect of a borough ordinance of April 7, this year. The ordinance is as follows: “Sec. 1. That Second street, between Valley avenue and Agnes avenue, in the First ward of the borough of Olyphant, and Third street, between Valley avenue and Avenue E, in the First ward of the borough of Olyphant, be and they are hereby adopted as public streets of the borough of Olyphant.”</p> <p>No other corporate action in the premises has ever been taken by the borough.</p> <p>Error assigned was decree awarding preliminary injunction.</p>

<p>Appeal, No. 379, Jan. T., 1908, by plaintiff, from decree of C. P. Lackawanna Co., May T., 1908, No. 7, dismissing bill in equity in case of Henry Frey v. Mathias Stipp.</p> <p>Bill in equity to declare a contract void. Before Edwards, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree of the court.</p>

<p>Landlord and tenant — Illegal distress — Lease—Evidence.</p> <p>In an action to recover damages for illegal distress for rent it appeared that the plaintiff purchased a stock of goods from a former tenant and went into possession of the building. There was evidence that the landord had made a new lease with plaintiff, under the terms of which no rent was due at the time of the distress, and there was also proof of facts consistent with an intention on the part of the landlord to accept the plaintiff as a tenant from month to month. The defendant, however, testified that he had made no new arrangement, and that he had refused to do so. Held, that the case was for the jury, and that a verdict and judgment for defendant should be sustained.</p>

<p>Negligence — Railroads—Grade crossing — “Stop, look and listen”— Death.</p> <p>1. The rule that one who goes on a railroad track immediately in front of a moving train which he saw or must have seen if he had looked, will be conclusively presumed to have been negligent is from its nature applicable only to clear cases, where neither the facts nor the inferences to be drawn from them are in doubt.</p> <p>2. In an action against a railroad company to recover damages for death of plaintiff's husband who was killed in a collision at a grade crossing, between freight cars running wild and the wagon in which he was riding, the case is for the jury where the evidence shows that the accident happened before sunrise on a damp and cloudy morning when it was so dark that objects could not be readily distinguished, and that the cars made only a low rumbling sound.</p> <p>3. Where cars are owned or under the exclusive care of a railroad company run with no one in charge of them over a public crossing at high speed, and an accident results at the crossing, the burden is on the company to show the exercise of due care. Whether such care was observed is a question for the jury.</p>

<p>Contract — Verbal contract — Railroads—Taking stone for repairing roadbed — Evidence—Case for jury.</p> <p>In an action by a landowner to recover the value of the stone and earth taken from his land by a railroad company for use in repairing its roadbed, the case is for the jury where the evidence is conflicting whether the materials had been taken without authority or under a standing verbal agreement between the parties by which the company was allowed to take all the stone it might need at a fixed price per year.</p>

<p>Appeal, No. 281, Jan. T., 1908, by-defendants, from judgment of C. P. Monroe Co., Sept. T., 1906, No. 28, on verdict for plaintiffs in case of Davis Smith and Charles Eberle, Guardian of Chester Smith, v. Thomas Coffman and Bertha Coffman.</p> <p>Ejectment for land in Paradise township. Before Staples, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiffs.</p> <p>Verdict and judgment for plaintiffs. Defendants appealed.</p> <p>Error assigned was in giving binding instruction for plaintiffs.</p>

<p>Husband and wife — Antenuptial agreement — Knowledge of husband’s estate.</p> <p>1. Parties to an antenuptial contract for the disposition of their estate do not deal at arm’s length but stand in a relation of mutual confidence and trust that calls for the highest degree of good faith in disclosing all circumstances bearing on the contemplated agreement. But fraud is not to be presumed and the onus of proof is not changed in the absence of facts or circumstances from which concealment or imposition may reasonably be inferred.</p> <p>2. Where a man eighty years of age enters into an antenuptial agreement with his housekeeper, a woman fifty-three years of age, by which they mutually renounce all rights in each other’s estates, except that the woman is to receive a small sum of money from the executors of the man, and the woman has sufficient knowledge of the man’s estate to enable her to act advisedly, she cannot after her husband’s death renounce the agreement, and demand her share of his estate under the intestate laws.</p>

<p>Judgment — Assignment—Injunction—Equity—Accounting.</p> <p>On a bill in equity for an account where it appears that the defendant, a city contractor, had assigned to the plaintiff all moneys due under the contract, but notwithstanding the assignment had recovered a judgment against the city for such moneys, the court may, after having.found that the defendant was indebted to the plaintiff for more than the amount of the judgment, direct the defendant to mark the judgment to the use of the plaintiff.</p>

<p>Appeals — Jurisdiction—-Amount in controversy — Supreme Court— Superior Court.</p> <p>1. An appeal from an order discharging a rule for judgment for want of a sufficient affidavit of defense lies to the Superior Court where the amount claimed in the plaintiff's statement is under $1,500, although a counterclaim set up in the affidavit of defense for breach of another and distinct contract is for an amount in excess of $1,500 and although the establishment of the counterclaim at the trial would entitle the defendant to a certificate for an amount in excess of $1,500 even should plaintiff's entire claim be allowed.</p> <p>2. Under the Act of May 5, 1899, sec. 4, P. L. 248, the test of jurisdiction where the plaintiff fails to recover anything is the amount “ claimed in the statement of claim or declaration.”</p>

<p>Appeal, No. 39, Jan. T., 1909, by plaintiff, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 452, on verdict for defendant in case of Joseph S. Keller v. Andrew J. Cohen.</p> <p>Assumpsit on two promissory notes. Before Audenried, J.</p> <p>The facts are stated in the opinion of the Supreme Court, and in the former report of the case in 217'Pa. 522.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence and instructions, including a refusal to give binding instructions for plaintiff.</p>

<p>Appeal, No. 51, Jan. T., 1909, by plaintiff, from order of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 1,313, M. L. D., discharging rule for judgment for want of a sufficient affidavit of defense in case of Edmund M. Pennock, trading as J. Sellers Pennock, v. Locust Realty Company, Owner or Reputed Owner, and Moore & Company, Incorporated, Contractor.</p> <p>Scire facias sur mechanic's lien. Before Magill, J.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 78, Jan. T., 1909, by-plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1907, No. 1,451, refusing to take off nonsuit in case of American Ice Company v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for burning of property alleged to have been caused by sparks from a locomotive. Before Ferguson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 79, Jan. T., 1909, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1907, No. 1,452, refusing to take off nonsuit in case of the Knickerbocker Ice Company v. Pennsylvania Railroad Company.</p>

<p>Mines and mining — Principal and income — Coal royalties — Life estate.</p> <p>Where a testator devises the residue of his estate to a trustee to -pay the net income therefrom to testator’s wife for life and the principal over, with no power of sale, royalties from a coal lease of land with no open mine thereon, made by the trustee after the testator’s death, are to be considered principal and not income; and this is the case although the testator in his lifetime agreed to lease another tract of coal land adjoining the tract leased by the trustee, and a mine was opened thereon in testator’s lifetime.</p>

Appeal, No. 185, Jan. T., 1908, by Bertha L. Baeder, from decree of O. C. Montgomery Co., Oct. T., 1907, No. 26, sustaining exceptions to adjudication in Estate of Charles Baeder, deceased. Exceptions to adjudication. Before Solly, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was in sustaining exceptions to adjudication.

<p>Appeal, No. 131, Jan. T., 1908, by plaintiff, from judgment of C. P. Delaware Co., June T., 1905, No. 342, on verdict for defendant in case of Eva I. Gustine v. John A. M. Westenberger.</p> <p>Scire facias sur mortgage. Before Broomall, J.</p> <p>At the trial when the defendant was on the stand he was asked this question in relation to a prior mortgage on the property:</p> <p>“Q. Was not that mortgage held by the Home Building & Loan Association paid off out of the proceeds of this very mortgage in suit? ” Objected to.</p> <p>The Court: The objection to that question is sustained with leave to the plaintiff to make the same inquiry when some knowledge of this mortgage or of its payment is traced to him. With leave to the plaintiff to renew the offer when some knowledge of the transactions inquired of are traced to the witness by his examination of him or other evidence. My thought is this, that it is necessary to the plaintiff’s case to establish to the satisfaction of the jury that this mortgage was executed by the defendant or was executed with his previous authority or subsequent ratification, and so far as ratification is concerned there can be no ratification without knowledge, the court holding that the preliminary requisite of ratification— some evidence must be established before the question ruled out can be inquired of. [11]</p> <p>Similar questions were also rejected [12,13].</p> <p>Plaintiff presented the following points :</p> <p>1. The execution and acknowledgment of the mortgage in suit evidenced by the official notarial certificate and the subsequent recording of the mortgage is sufficient and strong evidence of the genuineness of the mortgage and entitles the plaintiff to a verdict in her favor unless overcome by convincing countervailing evidence which satisfies the jury to the contrary. Answer: The court is unable to say that the certificate of the notary public is sufficient and strong evidence of the genuineness of the mortgage. The law makes it evidence. It is technically evidence. But you will see that if the facts certified to in the certificate are successfully attacked by testimony, why not only the evidence of the certificate is not sufficient and not strong, but if the evidence in your judgment attacks it, overwhelms it with defeat, why, of course, it is no evidence, you will not be governed by it at all. [1]</p> <p>2. (Not read to jury.) In the consideration of the evidence upon the question of the execution of the paper if the jury do not believe the statement of the witness, John Westenberger, that the execution was not authorized by him and also that he was not a party to the perpetration of a fraud upon the plaintiff by deceiving her into a belief in the genuineness of the mortgage they may disbelieve his defense and find a verdict for the plaintiff. Answer: Refused. [2]</p> <p>3. (Not read to jury.) If under all the evidence in the case the fraud in the case was that of defendant’s wife the husband would in law be answerable for this to the plaintiff as for his own fraud and the verdict should be for the plaintiff. Answer: Refused. [3]</p> <p>4. The proofs offered by the plaintiff are sufficient in the first instance to entitle her to a verdict and under all the evidence the jury may find a verdict in her favor. Answer: That can’t be affirmed just as it is written. The law is that the certificate of the notary public is written prima facie evidence, and if there were no other proofs in the case that certificate wTould prevail and in that sense the certificate of the notary public is sufficient, but if, as I said before, it is to your satisfaction shown that the certificate is not true, why, of course, the facts found in the certificate are not the facts you would find by your verdict. [4] '</p> <p>5. Under all the evidence the jury may find a verdict in her favor. Answer: Well, it is proper tó say, that in the judgment of the court, by which you are not bound at all, the weight of the evidence is against this certificate, and I do not hesitate to say so, at the same time saying that you are not bound by the view that the court takes of the weight of the evidence. [5]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1, 5) above instructions, quoting them; (11-13) rulings on evidence, quoting the bill of exceptions.</p>

Appeal, No. 390, Jan. T., 1908, by defendant, from judgment of C. P. Chester Co., Aug. T., 1906, No. 27, on verdict for plaintiff in case of Winfield S. Bond v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Hemphill, P. J. The facts appear by the opinion of the Supreme Court. Defendant presented the following point: 1. Under all the evidence in the case, the verdict must be for the defendant.

<p>Appeal, No. 258, Jan. T., 1908, by plaintiffs, from decree of C. P. Bucks Co., Oct. T., 1906, No. 3, dismissing bill in equity in case of G. M. Dorrance et al. v. The Burgess and Council of Bristol Borough et al.</p> <p>Bill in equity for an injunction. Before Stout, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned amongst others was decree dismissing the bill.</p>

<p>Trusts and trustees — Declaration of trust — Individual liability of trustee — Affidavit of defense.</p> <p>Where a person purchases a coal mine at sheriff's sale and executes a declaration of trust by" which he declares that he holds the property to operate the same, and to pay three creditors of the defendant in the execution, out of the profits, and as to one of the creditors if the profits are not sufficient to pay him in four months, to pay him in full on a day stated,, and such creditor sues the trustee to hold him individually liable, no profits having been realized, an affidavit of defense by the trustee is sufficient to prevent judgment if it contains an unequivocal averment that at the time the trustee executed the paper, it was understood and agreed by and between the plaintiff and himself that he was not to become individually liable from his individual property, but only as trustee from the trust funds arising and coming into his hands.</p>

<p>Appeal, No. 48, Jan. T., 1909, by R. L. Levy, from decree of O. C. Lackawanna Co., dismissing exceptions to confirmation of sale in Estate of Julia Terppe, deceased.</p> <p>Exceptions to confirmation of sale. Before Sando, P. J.</p> <p>From the record it appeared that the real estate in question was a portion of the estate of Frederick L. Terppe, who died in 1905. The will of Terppe provided, inter alia, as follows:</p> <p>“Third. I give, devise and bequeath unto my beloved wife, Julia Terppe, all the rest, residue and remainder of my property, real, personal or mixed, wherever or however situated or located at the time of my death, she to have, hold, use and enjoy the same and all the income therefrom, less taxes and charges thereon, for and during the term and period of her natural life, and further as to the remainder and fee simple of said property, I give, devise and bequeath to said beloved wife, Julia, the sole right, and I so direct, of disposing of said property by her last will and testament, to whomsoever and howsoever and upon such terms and conditions as to her shall seem best at time of making her will.</p> <p>“Fourth. Should my said wife, Julia, neglect or refuse to dispose of the remainder of said property by her last will and testament, in that event I give, devise and bequeath the same absolutely in fee simple to my beloved adopted son, William Frederick Terppe.”</p> <p>Julia Terppe died on October 25, 1907. She made a will dated February 3, 1906, the material portions of which are as follows:</p> <p>“2. I direct that all legal debts owing by my estate be paid by executors hereinafter named. . . .</p> <p>“10. I give, devise and bequeath to Miss Lizzie Terppe, of Philadelphia, Pa., .... and in addition thereto I give, devise and bequeath to her the sum of $3,000, to be paid from my estate, whether real, personal or mixed ....</p> <p>“11. To my beloved son, Frederick William Terppe, the adopted son of my late husband, Frederick L. Terppe, I give, devise and bequeath all the rest, residue and remainder of my property, real, personal and mixed, located and situated wheresoever or howsoever the same may be at the time of my decease, and subject to the above devises and legacies, he to have, hold, use and enjoy the same absolutely for himself, his heirs and assigns, in fee simple forever. But suggesting in this connection in the way of advisement to him, that it is my wish in accepting the said real estate he shall continue to conduct the drug business as now conducted on the property left me by my late husband, Frederick L. Terppe, for and during at least the period of ten years from the date of my decease, and that during this period of time he shall pay whatever incumbrances may be left by me against the said estate, either by reason of liens against the same owing by me at the time of my death or by reason of the legacies and devises herein granted to other persons to be paid therefrom, and he shall not dispose of the said estate in any manner but conduct it in the way of business until such debts are all paid off and the property clear.’’</p> <p>The drug store property which belonged to Frederick L. Terppe was sold under an order of court for the payment of the debts of Mrs. Terppe.</p> <p>The purchaser objected to the confirmation of the sale on the ground that the real estate could not be sold to pay Mrs. Terppe’s debts, and that therefore her executor could not make title.</p> <p>The court dismissed the exceptions and confirmed the sale.</p> <p>Error assigned was decree confirming sale.</p>

<p>Railroads — Eminent domain — Condemnation of leasehold — Improvements — Use of improvements — Removal of improvements.</p> <p>Where a railroad company after having acquired a fee in leased premises, files a bond to condemn the unexpired term of the leasehold, and notifies the lessee, who has the right to remove the improvements, to remove the same, and upon the lessee’s refusal to do so, the company removes and sells them after proper advertisement, the lessee is entitled to recover the value of the leasehold interest including the use of the improvements for the unexpired term and also the amount of money which the company received from the sale of the improvements, if such sale was made after a proper and bona Me effort by the company to secure the best prices for the property. In such a case the lessee is not entitled to the value of the machinery and fixtures in place, but only to the value of their use during the unexpired term.</p>

<p>Equity — Laches—Nuisance—Construction of siding on street.</p> <p>Where an industrial corporation lays a private railroad siding on a street in a residential neighborhood of a city with the municipal consent, but without the consent of an abutting landowner, and such owner makes no objection and files no bill to restrain the nuisance, but permits the operation of the siding for ten years when an additional track is laid, and the plant of the company increased at a great expense, and no objection is made to this for an additional five years, when the owner files a bill, the owner will be deemed to have been guilty of laches, his bill will be dismissed and he will be left to whatever remedy he may have at law.</p>

<p>Appeal, No. 342, Jan. T., 1908, by Maurice E. Cummiskey, Administrator, from decree of O. C. Phila. Co. Jan. T., 1908, No. 509, sustaining exceptions to adjudication in Estate of Laura E. Cummiskey, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in sustaining exceptions to adjudication.</p>

<p>Equity — Master’s findings of fact — Reversal of master — Duty of court to file opinion — Practice, C. P.</p> <p>1. When a trial court reverses a master or an auditor it is the duty of the court to file an opinion and point out wherein the officer has erred, and that the error is so manifest as to warrant the setting aside of the officer's conclusions. The presumptions are all in favor of the correctness of the findings of the master or auditor and until they are shown by the trial court to be erroneous they must be sustained. <</p> <p>2. Where the court of common pleas sitting as a court of equity reverses a master without filing an opinion, the Supreme Court on appeal will remand the case to the court below so that it may file an opinion and assign its reasons for reversing the master.</p>

<p>Negligence — Death—Damages—Actions—Acts oj April 15,1851, P. L. 669, and April 26, 1855, P. L. 309.</p> <p>Where a person is injured by the negligence of another and brings an action for the injuries sustained, but dies before the suit is concluded, his children have no right to maintain an independent action of their own under sec. 19 of the Act of April 15, 1851, P. L. 669. In such a case the pending suit must be prosecuted by the personal representatives of the deceased. It is not open for the children to elect to bring another action, and to disregard the pending suit or discontinue it.</p>

<p>Will — Accounting—Executors and administrators — Exemption from filing account.</p> <p>Where a testator gives his entire estate to his wife for life and after her death to his son, and appoints the widow and son executors, with a direction that they shall not be required to file any account, the representatives of the widow after the death of the son surviving the widow, cannot in the absence of fraud, or any allegation thereof, compel the representatives of the son to file an account on the ground that the son had converted the assets, and had not paid the income to his. mother during her life. In such a case if there is any right of recovery, the remedy is at law for the recovery of a debt.</p>

<p>Criminal law — Murder—Insanity—Epilepsy.</p> <p>1. On the trial of an indictment for murder a mere offer to prove that the prisoner prior to the killing had been subject to attacks of epilepsy is properly overruled where there is no evidence produced or offered to show that the prisoner was in fact insane. The law derives no immediate presumption of insanity from the fact of epilepsy, but leaves the insanity to be proved as any other defense not by secondary evidence as proof of epilepsy would be, but by evidence establishing the direct fact; nor is evidence of epilepsy admissible even when the offer is accompanied by an offer to prove intoxication.</p> <p>2, It may be a physiological fact that one effect of epilepsy is to produce a state of mind easily excited by provocation, and that this state of mind is intensified by intoxication to a degree that would be unexpected in one not epileptic from the same amount of drink; but except as the epilepsy can be shown to have resulted in an unsoundness, which by itself would excuse an act, it cannot become a factor in determining the question of guilt or innocence. The epileptic who is not shown to be insane, can no more escape liability for his acts done while intoxicated, than can one not so affected.</p> <p>Criminal law — Confessions—Murder.</p> <p>3. On the trial of an indictment for murder the prisoner's pastor accompanied by the officer who made the arrest visited the prisoner, and the clergyman said to the prisoner that it would be better for him to tell the truth, adding that he, the speaker, could do more for him if he told the truth. Before the defendant had an opportunity to express himself at all, the officer interfered with the remark, “Reverend, as a detective, I wish you would not make a remark of that kind. I may be a witness against him, and I can offer him no promise of any kind, and I hope you don't mention that again.” It was after being thus cautioned that the defendant made a confession. Held, that the confession was admissible in evidence.</p> <p>Criminal law — Murder—Points for charge.</p> <p>4. On the trial of an indictment for murder, points predicated on a killing as the result of a sudden impulse or impetuous temper, are properly refused where there is no evidence whatever that the killing was the result of sudden impulse.</p> <p>Criminal law — Murder—Intoxication.</p> <p>5. On the trial of an indictment for murder an offer to show that the prisoner was under the influence of liquor at the time of the killing, is properly overruled where there is no offer to show the degree of intoxication, or that the prisoner was so much intoxicated that his mind was incapable of forming a deliberate intent or premeditated design to kill and carry it out.</p> <p>6. Where the prisoner and several of his witnesses have testified to the number of drinks he had taken, and he himself had testified fully as to the extent of his intoxication, it is not reversible error to ask the prisoner when recalled to the stand as to the amount of liquor he had drunk during the evening of the occurrence.</p>

<p>Deed — Defective title — Recitals—Notice.</p> <p>1. When a purchaser cannot make out his title but through a deed which leads to a fact, he will be affected with notice of that fact.</p> <p>2. Where the recitals in a deed show that the grantor has no title, the grantee is affected with notice of the defect of title as soon as he accepts delivery of the deed.</p> <p>Executors — Administrator—Trust and trustees — Confirmation of account — Distribution—Proceeds of sale of real estate — Defective title— Mistake.</p> <p>3. Where an executor under a power in a will sells an interest in real estate in which the testatrix had no title, files an account, and the proceeds of the real estate with other moneys of the testatrix are awarded to him as trustee, the purchaser of the real estate has no standing, six years after the date of the distribution, to demand that he shall be repaid out of funds in the trustee’s hands, the amount which he had paid for the interest in the real estate. The mistake of law which the parties' made with full knowledge of the facts, will not in such a case entitle the purchaser to equitable relief; nor has the orphans’ court any power to set aside the sale and direct repayment of the purchase money to the executor.</p> <p>4. No decree can be made upon a conveyance by an executor or trustee under a power conferred by will, unless the aid of the orphans ’ court is required to supply some omission in the terms of the instrument creating the power; much less can it set aside a sale made in pursuance of a testamentary power.</p>

<p>Appeal, No. 45, Jan. T., 1909, by plaintiff, from decree of C. P. No. 5, Phila. Co., June T., 1908, No. 6,690, dismissing bill in equity in case of City of Philadelphia v. Philadelphia Rapid Transit Company.</p> <p>Bill in equity for the specific performance of a contract and for an injunction.</p> <p>Staake, J., filed an opinion in which he stated the facts to be as follows:</p> <p>This is a bill in equity praying for a decree against the defendant:</p> <p>1. “That each ticket purchased of the defendant at the rate of six tickets for twenty-five cents shall have all the effect of a cash fare of five cents.”</p> <p>2. That the defendant may be required to perform its contract with the plaintiff and accept such tickets, with like effect, as if fares of five cents each were paid by its passengers, and to issue transfers thereon in like manner, for the same points and for the same routes and distances as those for which the said transfers were issued upon the payment of such tickets on and immediately after July 1, 1907, and until May 18, 1908.</p> <p>3. That the rule of the defendant company, “by virtue of which on and after'May 18, 1908, it refused to issue transfers as theretofore issued to those who had paid their fare by ticket,” and by which such transfers were issued “only at the time a five cent cash fare is paid, and only when asked for by the passenger at the time of the payment of the cash fare,” and the “orders” of the said company defendant, abolishing certain transfers which had theretofore been granted, so that on, from and after said May 18, 1908, such transfers were not issued, and passengers were and still are required to pay a second or additional fare for the ride, which theretofore had been granted for the one fare, should be decreed to be unauthorized and unlawful, and in violation of a contract of the city of Philadelphia with the defendant company dated’ July 1, 1907, made under the provisions of an ordinance of the councils of the city of Philadelphia, duly approved by the mayor of the said city on July 1,1907, entitled, “An ordinance authorizing the execution of a contract between the City of Philadelphia and the Philadelphia Rapid Transit Company, affecting, fixing and regulating the duties, powers, rights and liabilities of the City and of the Philadelphia Rapid Transit Company and its subsidiary companies, and the relations and the respective interests of the contracting parties, providing for the future management and extension of the street railway system controlled by the Philadelphia Rapid Transit Company, and the final acquisition of its leaseholds and property by the City, and repealing so much of former ordinances as is inconsistent therewith.”</p> <p>4. That an injunction may issue against the defendant company enjoining the company defendant and prohibiting it from carrying out the terms of the said rules and orders and each of them.</p> <p>5. That the plaintiff may have such further and different relief as may be or become necessary or proper in the premises.</p> <p>The city averred that the eighth section of the said contract provided:</p> <p>“ The city hereby confirms to the company and its subsidiary companies all of the consents, rights and franchises heretofore granted to, and exercised by them, and each of them, including the right of operation by the overhead trolley system, free of all terms, conditions and regulations not herein provided for, and does further give up and surrender and agree not to exercise any rights which it may possess in respect to a repeal or resumption of any of the said rights now possessed or heretofore granted, or a taking over of any of said properties, any law, ordinance or contract now in force, or hereafter passed to the contrary notwithstanding: Provided, however, That the present rates of fare may be changed from time to time, but only with the consent of both parties hereto: And provided further, That nothing in this contract contained shall be construed to limit the power of the city to make all rules and regulations, relating to the operation and management of the lines controlled by the company, necessary and proper to be made under the police power,” and that:</p> <p>“At the time when the said contract was made there were three rates of fare of the defendant company,” viz.: a cash fare of five cents for each passenger, a fare of eight cents for which the passenger received what was called an exchange ticket, and for which he was entitled to ride upon a' car of an intersecting line from the point of intersection, and that the company also sold through its conductors six tickets for twenty-five cents, each of which was good for a fare and was received as the precise equivalent of a cash fare of five cents.</p> <p>It was also averred that prior to said May 18,1907, the company defendant issued “transfer tickets,” which were given to passengers without extra charge to enable them to ride from certain intersections upon other lines.</p> <p>It was contended that the refusal to issue such free transfers as issued prior to May 18, 1908, and the abolishment of many of the transfer points on and after May 18,1908, resulted in an increase of the fare of those who theretofore had paid by ticket or had purchased exchange tickets.</p> <p>It was also averred that this “increase was not made with the consent of the City of Philadelphia” and that the increase was a change of “the present rates of fare” referred to in the proviso of the said eighth section of the contract of the company defendant with the city.</p> <p>The company defendant, while admitting in its answer that at the time of the making of the contract “there were the three rates of fare,” as averred by the city, averred that it is a leasing and operating company, controlling and operating “seventy-five different lines of street passenger railways, which under their various charters are entitled to charge a separate fare of not more than five cents for a ride over that line only.” That the rate of fare, upon all of the companies they are operating, was five cents and they are advised that when the words “rates of fare” were used in the said eighth section they were used with reference to the rates established by all the various companies for a single ride, namely, five cents. All other rates of fare referred to by the city were averred to be in the nature of commutation rates, but it was denied, “that there was any contract or agreement or binding obligation on the part of the company to give any passenger four rides for eight cents or twelve rides for twenty-five cents.” That the company had established numerous points at which a free transfer was given, entitling the holder to a further ride upon an intersecting line was admitted, but it denied “there was any right in the holder of an exchange ticket or a package ticket to demand such transfer.”</p> <p>It was further answered, that “by means of various Acts of the Legislature, particularly the Act of May 15, 1895, P. L. 65, the defendant as an operating company was allowed to operate all lines controlled by it as a single system, laying out new routes partly over one line and partly over another.”</p> <p>Defendant admitted that in order to develop its business and accommodate the public, it “established from time to time and changed and took off and re-established transfer points,” but at no time had it agreed “to issue transfers of this character either to the holder of an exchange ticket, who secured the same at the price of eight cents for two rides, or to the holder of a six-for-a-quarter ticket, who got a reduced rate for six rides and not for twelve rides.”</p> <p>Defendant also averred that these transfers were at all times issued to passengers at the time they left the car and not at the time they paid their fare, and it was therefore impossible for a conductor to know who had paid a full fare and who had given either an exchange ticket or a commutation ticket, and it was averred that no order had ever been made permitting or authorizing the issue of transfers to any parties except those paying the full fare, but admitted certain abuses had crept into the handling of exchange tickets, for the correction of which abuses the order complained of by the city had been made. The nature and character of these abuses is fully set out in the answer.</p> <p>The issuing and enforcement of the order of May 18, 1908, is admitted, but it is averred that the order was not in any respect a change in the orders or regulations of the company although it did result in a change of conditions which had arisen from the said abuse of privileges made possible by the manner in which transfers were previously issued.</p> <p>It was denied that on May 18, 1908, any transfer points were abolished, but admitted in certain cases parties who had theretofore “secured four rides for eight cents or two rides for four-and-one-sixth cents can no longer secure two rides for less than five cents, or at the rate of two-and-one-half cents each.”</p> <p>It was admitted that the order of May 18,1908, complained of was made without the consent of the city of Philadelphia. It was denied that the order was an increase or change in the rate of fare and that “consent by the city” was necessary to make the order effective. The defendant further denied “any intention to violate either the letter or the spirit of the contract with the city of Philadelphia.”</p> <p>The case was heard by the court upon bill and answer, there being no proofs submitted.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 324, Jan. T., 1908, by plaintiffs, from judgment of C. P. No. 4, Phila. Co., Sept. T., 1907, No. 2,937, for defendants on case stated in suit of Albertina Wickersham Saccone et al. by John F. Keator, their guardian, and Mary W. Taffini d'Acceglio v. West End Trust Company and Girard Trust Company.</p> <p>Case stated in ejectment to determine title to the bed of an alley in the ninth ward of the city of Philadelphia. Before Audenried, J.</p> <p>The following plan shows the situation of the alley:</p> <p> </p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for defendants on the case stated.</p>

<p>Appeal, No. 88, Oct. T., 1909, by defendants, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1909, No. 801, on bill in equity in case of George T. Oliver et al., Trustees of Henry W. Oliver, deceased, v. Robert G. Ormsby et al.</p> <p>Bill in equity for an injunction and to quiet title. Before Swearingen, P. J., of C. P. No. 4, specially presiding.</p> <p>The following plan indicates the locality of the alley:</p> <p>Plan re-recorded in Deed Book Vol. 66, page 255 Grave Yard.</p> <p>240 feet 9 inches.</p> <p> </p> <p>240 feet 9 inches.</p> <p>Smithfield Street.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree:</p> <p>And now, to wit: March 23, 1909, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, viz.:</p> <p>That the plaintiffs are the lawful owners in fee simple of the land formerly occupied by Freiheit’s alley, originally called Carpenter’s alley, in the city of Pittsburg, and extending ten feet in width from Oliver avenue to Sixth avenue; and,</p> <p>That plaintiffs have a lawful right to the exclusive use and occupation of the said strip of land formerly occupied by said alley.</p> <p>That the defendants are jointly and severally perpetually enjoined from any interference whatever with the possession and use of said strip of land formerly occupied by said alley, by the plaintiffs, and from any interference with the erection over said strip of land of the office building now being erected by the said plaintiffs.</p> <p>That the foregoing decree is also entered pro confesso against all the defendants who have not entered appearances or filed answers in said cause.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Appeal, No. 247, Jan. T., 1908, by Henry K. Leech and Isaac L. Glascoe, substituted trustees, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in Estate of William Young, deceased.</p> <p>Exceptions to adjudication of Lamorblle, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Deed — Alley—Easement.</p> <p>1. The grant of a fee subject to an easement carries with it the right to make any use of the servient soil that does not interfere with the easement, and this right cannot be abridged by words used in the granting clause unless the intention to limit the estate is clearly expressed or is a necessary implication from the words used. A restriction cannot be imposed upon a clear grant by merely naming one of its incidents. The rule that a deed or grant will be construed most strongly against the grantor applies with especial force to the restriction in a deed.</p> <p>2. Where an owner of land grants title to the soil of an alley in fee with a reservation to owners of other lands to the use of the alley, but with the privilege to the grantee to build over the alley “ at the same height and of the same depth as the same is now built over,” the grantee and his successors in the title are not restricted from building over the alley to a greater depth.</p>

<p>Will — Life estate — Devise—Children.</p> <p>1. Prima facie the word “ children ” is a word of purchase and not of limitation, and standing alone without qualification it must be given its ordinary meaning. It will not be construed as a word of limitation unless there is found in the will an intention so to use it. That the first taker had no children when the will was made or when it went into effect does not warrant such a construction where the gift to the children is not immediate but by way of remainder.</p> <p>2. A devise of land to the widow of a deceased son, and after her death to her children, vests only a life estate in the widow, although she had no children when the will was made, or when it went into effect.</p>

<p>Replevin — Parties—Intervention—Trial—Pleading.</p> <p>1. Where in an action of replevin by a corporation against two defendants, a third person intervenes, first claiming all of the property replevied, but subsequently claiming only a small portion which is conceded, and the defendants file only a plea to the effect that plaintiff is not a corporation, the trial court commits no error in directing the jury to be sworn as to the intervenor only, and in instructing the jury that no question of title is involved, and that their duty is simply to determine the value of the goods replevied. In such a case the plea filed by defendants was a plea in bar, and the case was therefore at issue only between the plaintiff and the intervenor. There was no verdict or judgment against the defendants and they had no standing to appeal.</p> <p>Corporations — Foreign corporations — Registration—Replevin—Act of April 22, 1874, P. L. 108.</p> <p>2. A foreign corporation need not be registered under the Act of April 22, 1874, P. L. 108, to enable it to maintain an action of replevin in this state to recover personal property which had been taken from it by one who had no contractual relation with the company.</p> <p>Practice, C. P. — Objectionable remarks of counsel — Discretion of court.</p> <p>3. A judgment will not be reversed because of alleged objectionable remarks of counsel, where it appears that the trial judge instructed the jury to disregard such remarks, and in his opinion refusing a new trial, states that he believes the jury were not influenced as to the amount of the verdict by the alleged offensive remarks.</p>

<p>Appeal, No. 15, Jan. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., June T., 1908, No. 3,842, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Alfred Booth et al., trading as A. Booth & Company, v. Wolff Process Leather Company, Mortgagor, and Benjamin H. Ludlow, Trustee, Real Owner.</p> <p>Rule for judgment for want of a sufficient affidavit of defense on a scire facias sur mortgage.</p> <p>The facts are stated in' the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit' of defense.</p>

<p>Bankruptcy — Set-off—Sec. 68 of Federal act — Mechanics’ liens.</p> <p>1. Where a contractor for a building is adjudicated a bankrupt and it appears that subcontractors’ liens had become fixed upon the building at the commencement of the work before the adjudication in bankruptcy, and had been perfected by the filing of liens after the adjudication in bankruptcy, but within the statutory period, and it also appears that the owners had paid the liens, such payments may be set off by the owners in an action brought by the trustees of the bankrupt to recover a balance due the bankrupt on the building contract.</p> <p>2. While the primary debtor of the subcontractors was the contractor whose duty it was to pay the claim, the property of the defendants, and hence the defendants themselves, were the statutory sureties for the payment of the debt of the bankrupt to the subcontractors. A surety paying the debt of his principal after the bankruptcy may, under the bankrupt act of 1898, set off the amount so paid against his debt to the bankrupt.</p> <p>3. The rules relating to set-off which prevail in the federal courts, must be observed by the state courts in construing the bankrupt act.</p> <p>4. A counterclaim provable against the estate of a bankrupt by his debtor in an action brought by the trustee, is such claim as is provable in its nature at the time the set-off is sought to be enforced. The status of the claim at that date determines its provability in contemplation of the bankruptcy act.</p> <p>5. The counterclaim which may be set off in an independent action brought by a trustee in bankruptcy is one that is provable in its nature, and need not necessarily be one that has been or may yet be proved in the bankruptcy proceeding.</p>

<p>Appeal, No. 3, Jan. T., 1909, by-plaintiffs, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 3,199, on verdict for defendant in case of Roland McGuigan v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before WlLTBANK, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeals, Nos. 19, 20 and 21, Jan. T., 1909, by defendants, from judgment of C. P. No. 2, Phila. Co., June T., 1904, No. 2,516, on verdict for plaintiff in cases of H. Cassale Mosier v. Runyon Wolverton, H. Cassale Mosier v. Charles R. Hamilton and H. Cassale Mosier v. Florence W. Hamilton.</p> <p>Trespass for assault and battery.</p> <p>In disposing of a motion for a new trial Wiltbank, J., filed the following opinion :</p> <p>This was a second trial. The sixth, seventh, eighth and ninth reasons for a new trial have been considered together, and will be disposed of as growing out of one circumstance, which was the request of the parties plaintiff and defendants through their counsel, when the cases were called for trial, and after the jury had been sworn as to the defendant Charles R. Hamilton, that the jury be sworn as to the two other defendants jointly with Charles R. Hamilton, and the cases be tried as one. The jury was accordingly sworn to try the issue between the plaintiff and the three defendants together.</p> <p>Three actions had been brought, growing out of an alleged assault and battery upon the plaintiff by a man, his wife and his wife’s brother, in a room of the house of the first named, which had been assigned to the plaintiff as a governess or attendant of a child of the family. The persons engaged, the time and the place were the same. Two of these actions had been instituted in this court, and a third in the court of common pleas No. 3, from which it was later certified to us; and the three cases appeared consecutively on the trial list on Monday, November 2, 1908, on a special order for trial.</p> <p>When the case closed no points were presented on the part of the defendants bearing upon the subject of the four reasons for new trial we are considering; the court charged the jury upon the assumption that the defense was urged by the group of three, and not by separate members of that group, the instructions purposely discussed the defendants as a joint body; and the jury found one verdict as against the group, which was accepted and recorded. No exception was taken to the form of the verdict before it was entered, nor was any motion made that the jury be further instructed and sent out to determine if any, and what, part of the damages awarded should be charged to one or more of the defendants separately, so that the general finding should not bear upon all indifferently.</p> <p>The record stood thus until the presentation of the bill of exceptions, when for the first time the trial judge was informéd that two papers had been filed by counsel, of their own motion, some time before the trial, and that the disregard of these by him had been error involving a mistrial, notwithstanding the concession that he had known nothing of them till thus apprised, and that the defendants might at any stage of the trial have called attention to them, as especially within their knowledge.</p> <p>The substance of these papers was as follows:</p> <p>On May 4, 1905, the plaintiff and Runyon Wolverton and Charles R. Hamilton, two of the defendants, agree that their cases shall be tried together, if reached, as of May 10, 1905, the jury by its verdict “to find separately with respect to the liability of each of the defendants.” The trial judge assumed that the three were to go to the proofs and the jury separately, and, as already stated, he directed that the panel be sworn in one only. This was done, and immediately thereupon application was made that the jury be sworn in all three together, and this colloquy was had, and noted by the official stenographer:</p> <p>Counsel for plaintiff and defendants move the court that these three cases be tried together.</p> <p>The Court: Do you agree to that?</p> <p>Mr. Shields: Yes, sir.</p> <p>Mr. Monihan: Yes, sir; we agree.</p> <p>During the trial there arose an argument as to the competency of a question of counsel, and this colloquy was had, which likewise was noted by the official stenographer:</p> <p>Mr. Shields: Will your honor allow me to have these objections noted as of record in the Wolverton case?</p> <p>The Court: This testimony is in all three cases, so that an exception here goes to all three.</p> <p>Mr. Monihan: Exceptions, so far as the injuries to the abdomen are concerned cannot affect the case of Mr. Wolverton and Mrs. Hamilton.</p> <p>The Court: We are trying three cases. Every ruling I make applies to the three cases. If it is error as to one it may be corrected as to the other two. You cannot tell. You are simply bound by it. If Mr. Shields feels I have made a mistake in ruling as to one man he cannot object if it is applicable to the other two, and so with you.</p> <p>This was assented to.</p> <p>On June 25, 1907, the plaintiff and Runyon Wolverton and Florence W. Hamilton, two of the defendants, agreed that “their cases shall be tried together when the first-named case is reached” — (the case against Wolverton) — “the jury by its verdict to find separately with respect to the liability, if any, of each of the defendants.”</p> <p>Our conclusions are, that the convention of the parties could not make these papers a record without the sanction and order of the court; that without such allocatur the course of our practice under the common law and our statutes could not be effected in this manner by private arrangement of litigants between themselves; that on careful examination the papers will be found inconclusive upon the point now urged by the defendants, and inapplicable to the last trial, even if for purposes of argument they are regarded as more than nullities — the paper first named refers to a trial as May 10, 1905; and the other refers to the time when “the first-named case” should be reached, even contemplating a trial which took place before that now under review. And finally, in no one of these instruments are all the actions named together. The only united agreement of the three defendants with the plaintiff was reported orally to the trial judge after the jury had been initially sworn as already narrated, and this made no stipulation whatever for a separate verdict. The entry of the verdict on the trial list and the docket was of no significance, those books not being records of the court.</p> <p>We have then the case of joint tort feasors, and our judgment may be entered as in such cases.</p> <p>We do not deem it necessary to file an opinion upon the other reasons for a new trial presented by the defendants.</p> <p>Rule discharged.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendants appealed.</p> <p>Error assigned among others was (1) in entering judgment on the verdict.</p>

<p>Appeal, No. 214, Jan. T., 1908, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 2,490, for defendant non obstante veredicto in case of Howard A. Hunt v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Kinsey, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the jury returned a verdict in favor of plaintiff for $8,000. Subsequently on motion the court in banc entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 38, Jan. T., 1909, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 4,387, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Simon Lewitzky v. Barnet Sotoloff. Assumpsit to recover the purchase price of real estate. Rule for judgment for want of a sufficient affidavit of defense. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Appeals — Practice—Supreme Court-</p> <p>Where the appellate court reverses a judgment non obstante veredicto for defendant, and directs the court below to enter judgment on the verdict, the defendant’s right of appeal in the original suit will run from the date of the judgment directed to be entered in the court below.</p>

<p>Appeal, No. 65, Jan. T., 1909, by plaintiff, from decree of C. P. No. 2, Phila. Co., Sept. T., 1906, No. 3,302, dismissing bill in equity in case of Chapman Decorative Company v. Philadelphia & Reading Terminal Railroad Company.</p> <p>Bill in equity for an injunction. Before Wiltbank, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Negligence — Railroads—“Stop, look and listen” — Grade crossings— Contributory negligence.</p> <p>In an action against a railroad company to recover damages for death of plaintiff's husband while driving a team at a grade crossing, a nonsuit is properly entered where it appears that the deceased who was familiar with the crossing stopped at a point where he could not . see the track on account of standing cars and failed to go forward to a point from which he could have had a clear view of the approaching train.</p>

<p>Appeal, No. 340, Jan. T., 1908, by plaintiffs, from order of C. P. Luzerne Co., Dec. T., 1906, No. 287, refusing to take off nonsuit in case of Tavia Fink and Rachael Fink, his wife, v. Wilkes-Barre & Wyoming Valley Traction Company.</p> <p>Trespass to recover damages for death of a child. Before Halsey, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Mines and mining — Coal lease — Minimum rental — Thickness of vein.</p> <p>Where a coal lease provides that the lessees shall not be required to pay the minimum rental or mine the coal when the coal in the land is less than two feet six inches in general thickness, the burden is on the lessees in an action against them for the minimum rental to satisfy the jury by the weight of the evidence that the coal was less than two feet six inches in general thickness; and if the evidence as to the thickness is conflicting, and the weight of the evidence tends to show that the lessees had not made proper examinations, explorations, or openings to test the actual thickness of the vein, a verdict and judgment for the lessors will be sustained.</p>

<p>Husband and wife — Wife’s property — Proof of title — Evidence.</p> <p>1. A wife claiming property acquired during coverture against her husband’s creditors is required to substantiate her claim by proof sufficient to repel all adverse presumption. But the law does not require proof of such a character as to relieve from every doubt, but only proof that is clear and satisfactory. A mere doubt will not operate to defeat the wife's claim. She must, however, show that the property itself is her separate property by gift, descent or otherwise, or that the money which she put into the property was her own money, or obtained upon her own credit, and that it was not the property or money, or credit of her husband. This she must show by proof that is clear, full and satisfactory.</p> <p>2. In a contest between a wife claiming property as her own, which had been sold as her husband’s, the wife produced testimony of which there was no direct contradiction that she had written to her brother-in-law requesting a loan of money with which to buy the land; that in reply he had written to her inclosing his check to her order for the amount of purchase money required; that she had indorsed this check and delivered it to her vendor in payment at the time of the execution of the deed. Her letter of request, the reply thereto, and the check were produced, and it was shown beyond doubt that the check was used in payment. Held, that the testimony made out a case for the wife which was essentially for the jury.</p>

<p>Appeal, No. 250, Jan. T., 1908, by defendant, from judgment of C. P. Lebanon Co., June T., 1907, No. 163, on verdict for plaintiff in case of Christiana Roland v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Ehrgood, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $9,000. Defendant appealed.</p> <p>Errors assigned among others were (3) in charging the jury that the defendant was negligent; (6) answer to plaintiff’s seventh point, which was as follows:</p> <p>7. If the jury believe that the watchman employed by the defendant company at the Front street crossing could not read or write, could not read the time table of the trains or the rules and regulations governing his conduct, and could not tell the time by the watch or clock, he was incompetent to perform the duties of his position, and if the defendant company, with knowledge of these facts retained him in its employ, it was guilty of negligence. Answer: That is affirmed. [6]</p>

<p>Appeal, No. 306, Jan. T., 1908, by plaintiffs, from order of C. P. Luzerne Co., May T., 1906, No. 359, refusing to take off nonsuit in case of Francis Riley, by his next friend and father, Anthony Riley, and said Anthony Riley in his own right v. The Pittston Coal Mining Company.</p> <p>Trespass to recover damages for personal injuries. Before Halsey, J.</p> <p>At the trial the court entered a nonsuit saying:</p> <p>The allegation of the plaintiff is that this machinery was constructed in violation of the mine act of 1891, and as a result of such construction this boy plaintiff was injured; that there was negligence on the part of defendant and as a consequence the defendant ought to be responsible for the injury that plaintiff received. The mine act of 1891 provides that no person under fifteen years of age shall be appointed to oil the machinery, and no person shall oil dangerous parts of such machinery while it is in motion. You will recall the testimony of young Riley that he went to this moving machinery on the opposite side of this sprocket wheel where the box is, that he had an oil can with a spout on it six or seven inches long, that he oiled the box, the journal that was in the box, and that having oiled that part of it, he started around the end of the box for the purpose of reaching the box on this side in which the journal was located, to oil that, and while he was in motion for the purpose of reaching the box on the opposite side where the journal was, for the purpose of oiling it, he slipped upon the sheet-iron and went down into the sprocket wheel and was injured.</p> <p>The rule of law is that it matters not how negligent the defendant may be, if the plaintiff himself is negligent in the slightest degree which inured and resulted in and caused him the injury for which he brings his action, he cannot recover. He was there and oiled that journal in that box when it was in motion. He started around to oil the journal in the opposite box while the machinery was in motion, and he slipped upon the sheet-iron and went down into the box and was injured, and therefore he violated this part of the act of assembly: “And no person shall oil dangerous parts of machinery while it is in motion.” He was guilty of negligence in oiling this machinery while it was in motion, and under this act of assembly is responsible for his negligence and therefore it becomes our duty to sustain this motion for a nonsuit. The nonsuit is allowed with the usual rule to show cause why the same shall not be taken off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 200, Jan. T., 1908, by-plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1906, No. 131, on verdict for plaintiff in case of W. P. Comely v. Porter B. Zentmyer and Thomas McGlynm</p> <p>Ejectment for coal in Bigler township. Before A. O. Smith, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>As we look at this case then, gentlemen of the jury, it is simply a question of law which we have determined in favor of the defendants, that they are entitled to a verdict at your hands, to be released however to the plaintiff upon the payment of the back royalties due to them since their purchase, amounting to $16,155.34. The time in which he is required to pay that, however, is a matter for the jury, and he is entitled in such conditional verdict to a reasonable time. What that reasonable time is of course we cannot control and it is wholly for the jury. In the argument of counsel, the counsel for plaintiff contended they ought to have a year, while the counsel on the other side contended it should not exceed six months. It is wholly for the jury.</p> <p>The form of the verdict being in this language: We, the jury, find in favor of the defendants for possession of the two seams of coal in the lease contract of June 23, 1886, to be released to the plaintiff on the payment by the plaintiff of the sum of $16,155.34 royalties due under said lease contract within the period of months. It is your province then, gentlemen of the jury, to find your verdict fixing the time which they shall have for repayment. Take this case then, gentlemen, and pass upon that single question, bringing in a verdict in the form otherwise as I have given you.</p> <p>The jury returned a verdict for plaintiff in the form stated in the charge.</p> <p>Error assigned among others was above instruction.</p>

<p>Negligence — Master and servant — Evidence of relation of master and servant — Case for fury.</p> <p>In an action by a boy to recover for personal injuries sustained while working at a corn husker owned by the defendant, the latter denied that he had employed the plaintiff, and testified that he had leased the corn husker to another person, and that such person had employed the plaintiff to work at the machine. Plaintiff’s father testified that the defendant had employed his son, and it also appeared that the accident occurred in the defendant’s barn, and when the plaintiff was husking defendant’s corn, and that defendant had asked the boy to work the machine; and according to one of the witnesses had stated that he had so employed the boy. The evidence for the plaintiff tended to show that he had never previously worked at a corn husker, and that neither the defendant nor anyone else had given him any instructions how to work it. Held, that the case was for the jury.</p>