Volume 226 — Pennsylvania State Reports

Appeal No. 149, Jan. T., 1909, by Harriet Longenecker, a lunatic, by her committee, from decree of O. C. Lancaster Co., April T. 1903, No. 67, sustaining exceptions to account of Maria Minnich, Trustee under the will of Elizabeth Longenecker, deceased. Exceptions to an item of 14,050 claimed by the accountant out of income for expenditures for maintenance of Harriet Longenecker.

<p>Appeal, No. 151, Jan. T., 1909, by Maria Minnich, from decree of O. C. Lancaster Co., April Term, 1903, No. 67, sustaining exceptions to account of Maria Minnich, Trustee under the will of Elizabeth Longenecker, deceased.</p>

Appeal, No. 6, May T., 1909, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1906, No. 530, for defendant on case tried by the court without a jury in suit of Commonwealth ex rel. Attorney-General v. American Steel PIoop Company. Appeal from tax settlement. The court in an opinion by Kunkel, J., entered judgment for defendant on case tried by the court without a jury. Error assigned was in entering judgment for defendant.

Appeal, No. 1, May T., 1909, by Malinda Gingrich, from judgment of Superior Court, March T., 1908, No. 16, reversing decree of O. C. Dauphin Co., dismissing petition to enforce charge on land in Estate of Cyrus Gingrich, deceased. Appeal from Superior Court. The facts appear from the report of the case in 36 Pa. Superior Ct. 266, and by the opinion of the Supreme Court. Error assigned was the judgment of the Superior Court.

Appeal, No. 11, May T., 1909, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1909, No. 18 for plaintiff on case tried by the court without a jury in suit of Historical Society of Dauphin County v. Luther R. Kelker. Ejectment for two lots of land in the city of Harrisburg. Before Shull, P. J., specially presiding.

<p>Appeal, No. 107, Jan. T., 1909, by defendants, from judgment of C. P. York Co., Jan. T., 1908, No. 19, on verdict for plaintiff in case of George F. Keiser v. Minerva E. Eberly, trading as The Wilbur A. Eberly Wheel Works.</p> <p>Trespass to recover damages for personal injuries. Before Bittenger, P. J.</p> <p>Verdict and judgment for plaintiff for $1,870. Defendant appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned court erred in refusing to enter a compulsory nonsuit after the evidence of the plaintiff had been closed.</p> <p>2. The learned court erred in refusing the fourth point submitted in writing by the defendant, which point was as follows: “4. Under the facts and the law, the verdict should be for the defendant.”</p> <p>3. The learned court erred in not giving binding instructions for the defendant at the trial of the case.</p> <p>4. The learned court erred in overruling the defendant’s motion for judgment non obstante veredicto and in overruling the motion for a hew trial and dismissing the rule at the cost of the defendant.</p> <p>5. The learned court erred in directing judgment to be entered for the plaintiff.</p>

Appeal, No. 182, Jan. T., 1909, by defendant, from judgment of O. & T. Clinton Co., Jan. T., 1909, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Frank Latampa. Indictment for murder. Before Hall, P. J. Giuseppi Fredericco was called and sworn as a witness for the commonwealth.

<p>Appeal, No. 199, Oct. T., 1909, by defendant, from judgment of C. P. Jefferson Co., Nov. T., 1909, No. 129, for plaintiff on case stated in suit of George E. Schwem v. Arthur W. Calloway.</p> <p>Case stated to determine title to real estate.</p> <p>From the record it appeared that on April 19, 1893, Sarah E. Dinsmore and N. J. Dinsmore, her husband, united in a paper, appearing on its face to be a deed, and purporting to convey certain lands of Mrs. Dinsmore to L. C. McGaw in trust for certain trusts thereinafter set forth, subject to a life interest of Mrs. Dinsmore. The instrument after describing the lands continued as follows:</p> <p>“ Reserving, nevertheless, to the said Sarah E. Dinsmore, party of the first part, and reserving entirely from the operation of this deed as fully as if this deed had never been made at all, all of these lots and land as above described or intended so to be, together with all and singular the buildings, improvements, ways, waters, watercourses, rights, liberties, privileges, hereditaments and appurtenances whatsoever thereto belonging or in anywise appertaining, and all the rents, issues and profits thereof and the full, free, uninterfered with occupation and control of the same and every part thereof during the natural life of the said Sarah E. Dinsmore, leaving and keeping her in respect to said land and buildings fully possessed of all use and control to be charged in no way, and in no way to be held responsible for same during her natural life, so that the possession, control and responsibility of said Trustee in trust for the purposes and persons hereinafter named and set forth party of second part, or his successors or successor, shall only commence and be exercised at the time of the death of her, the said grantor, Sarah E. Dinsmore.</p> <p>“ This conveyance is however as aforesaid in trust nevertheless for the uses, purposes and persons and in the manner hereinafter expressed concerning the same, that is to say, from and immediately after the decease of the said Sarah E. Dinsmore, which is the termination of the reservation above set forth, the trustee above named or his heirs or successor or successors, shall hold and control said described real estate in trust and for the use of the children of said M. J. Dinsmore and Sarah E. Dinsmore, parties of the first part, which children are: James Atlas Dinsmore, Mellie May Dinsmore, now Mellie May Myers, wife of L. C. Meyers, Mary Evangeline Dinsmore, Annie Eliza Dinsmore, now Annie Eliza Gibson, wife of Harry Gibson, and Marion Adelia Dinsmore, that they may have, hold, use and enjoy said premises with the appurtenances, and in case of the decease of any of said children named then of the right heir or heirs of such deceased one, provided that the heirs of such decedent shall take by representation only the share of or which such deceased child of parties of the first part would take if living: said estate to be thus held in trust for the equal benefit, use, occupation, enjoyment and profit of said five children and their heirs .... provided that said Sarah E. Dinsmore and M. J. Dinsmore may during the life time of both of them by mutual consent and by joining in a duly acknowledged deed alter or amend this trust or entirely revoke the same or declare new and different trusts or trustee or trustees.”</p> <p>The ease stated contained the following facts:</p> <p>4. That M. J. Dinsmore, husband of Sarah E. Dinsmore, died on or about December 28, 1899, and that all of the children of the said M. J. and Sarah E. Dinsmore, named in said trust deed, were then living and of full age.</p> <p>5. That by deed dated January 8, 1902, all of said children of said M. J. and Sarah E. Dinsmore, who were named in the aforesaid trust deed, being of full age together with their respective husbands and wives, did convey said real estate, and all their interests in the same to the said Sarah E. Dinsmore, who at that time held the life estate therein, which deed was duly acknowledged and entered of record.</p> <p>6. That to No. 2, April Term, 1902, in equity in the court of common pleas of Jefferson county, Sarah E. Dinsmore filed a bill naming all of the said children of the said Sarah E. Dins-more and M. J. Dinsmore and the trustee as defendants, setting forth substantially the facts aforesaid and praying the court to decree a termination of said trust and order and decree that the trustee before named be forever discharged from said trust and that no successor be appointed.</p> <p>7. That all of said defendants admitted the facts set forth in said bill and joined in the prayer thereof.</p> <p>8. That on March 12, 1902, the said court entered a decree in accordance with the prayer of said bill, terminating said trust and discharging the trustee.</p> <p>9. That on April 18, 1902, the said Sarah E. Dinsmore, then a widow, conveyed said land described in said trust deed to George E. Schwem, by deed of general warranty recorded at Brookville.</p> <p>10. That on or about June 25,1909, said George E. Schwem agreed in writing to sell and convey the portion of said land below described to A. W. Calloway, and the said A. W. Calloway agreed to purchase the same and to pay therefor the sum of $25,500 upon the delivery to him of a good and sufficient deed for said premises conveying a marketable title.</p> <p>The court entered judgment for plaintiff on the case stated.</p> <p>Error assigned was in entering judgment for plaintiff on the case stated.</p>

Appeal, No. 187, Oct. T., 1909, by the Indian Brewing Company, from judgment of the Superior Court, April T., 1909, No. 181, affirming judgment of Q. S. Indiana Co., Dec. T. 1908, No. 17, refusing a liquor license in case of Indian Brewing Company’s License. Petition for a brewer’s license. Before Telford, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was order refusing a license.

<p>Appeal, No. 42, Oct. T., 1909, by plaintiff, from decree of C. P. No. 4, Allegheny Co., First Term, 1908, No. 747, dismissing bill in equity in case of Henry W. Mallissee v. William Keown.</p> <p>Bill in equity to restrain proceedings before justice of the peace.</p> <p>Carnahan, J., found the facts to be as follows:</p> <p>1. The plaintiff is a citizen of Pennsylvania, a resident of Pittsbui’g, and is engaged in the business of keeping a livery and sales stable at No. 5623 Eva street, twentieth ward, city of Pittsburg.</p> <p>2. The defendant is the owner of certain premises, which have a frontage of about forty-two feet on Eva street, and a depth of 170 feet, extending back to Mignonette street, in the city of Pittsburg. Whether the width is uniform throughout does not appear.</p> <p>3. The defendant, on April 25, 1907, executed and delivered to the plaintiff a mortgage against the whole of said premises to secure the payment of $3,500 in three years from the date thereof, which mortgage was accompanied with the usual bond.</p> <p>4. At some time prior to May 1,1907 — probably in January of that year — the plaintiff, who was then in the livery business on Broad street, Pittsburg, told the defendant that his lease would expire on May 1, 1907, and that he would then be obliged to vacate and would dispose of his stock and retire from the business. The defendant replied that he himself intended to go into the livery business, having suitable property at No. 5623 Eva street, and that he was about to arrange for a loan sufficient to enable him to build a stable. The plaintiff then said that he had money to loan, and proposed to loan an amount sufficient to enable defendant to build a stable; he further proposed that if, upon completion of the stable, defendant would allow him to occupy it for a month or two, so that he could dispose of his stock, he would then vacate the premises and pass over to defendant his good will in the livery business. He proposed still further, to pay a monthly rental of one-twelfth of six per centum of the total cost of the stable and the land. This offer was accepted by defendant, the stable was erected and a mortgage and bond for $3,500 were given, this amount including the sum of $2,000 paid by plaintiff in full satisfaction of a prior mortgage against the premises.</p> <p>5. On May 1,1907, the plaintiff took possession of the stable and premises, but made no claim to right of possession as mortgagee; nor did he, in any manner, indicate to defendant an intention, on his part, to hold otherwise than as a tenant by reason of the aforesaid agreement.</p> <p>6. For some reason, not explained, but satisfactory to both parties, no rental was charged or paid until October 1, 1907, at about which time the sum of $31.30 per month was agreed upon, the same being one-twelfth of six per centum of $6,260, which amount was fixed as the total cost of the stable and premises.</p> <p>7. The plaintiff has continued in possession of said premises until the present time, and has been and is now conducting thereon a livery and sales business, which in addition to a regular livery business, means the buying, selling and boarding of horses.</p> <p>8. On December 2, 1907, the defendant instituted proceedings before Alderman J. D. Walker, of the city of Pittsburg, for the recovery of possession of said premises from the plaintiff. The plaintiff gave due notice to the magistrate that in said proceedings was involved a question respecting the title to land and that, under the law, he could not entertain jurisdiction. The magistrate, however, did entertain jurisdiction, and gave judgment of ouster, which judgment he was about to carry into execution, when he was given notice of a preliminary injunction issued in this case, and thereupon execution proceedings were stayed.</p> <p>9. The plaintiff claiming, as mortgagee, the right of possession, is ready and willing to account for and pay to defendant reasonable rents, issues and profits, which he claims the defendant agreed with him should not exceed the sum of $31.30 per month. This amount, however, was not agreed upon as rents, issues and profits which plaintiff was to pay as mortgagee, but was the amount fixed as rental which plaintiff was to pay as a mere tenant.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 184, Jan. T., 1909, by Dane A. Pearson, Intervening Defendant, from decree of C. P. Blair Co., No. 686, Equity Docket, allowing and continuing preliminary injunction in case of James C. Hughes, I. C. Mishler, J. G. Etter, George C. Kelchner, Jr., C. A. Buch, I. D. Hess, Guy M. Gest and any others who may be desirous of joining herein v. Citizens’ Electric Light, Heat & Power Company, W. S. Aaron, President, George C. Kelchner, Acting Secretary and Treasurer, W. S. Aaron, George C. Kelchner, John Kazmaier, C. W. Moore, C. B. Crissman, T. M. Biddle and Carl Olmes, Board of Directors of the said Company, and Dane A. Pearson, Intervening Defendant.</p> <p>Bill in equity for an injunction.</p> <p>A short abstract of the bill is as follows:</p> <p>1. The plaintiffs are stockholders.</p> <p>2. The Citizens’ Electric Light, Heat & Power Company is a corporation duly organized under the laws of Pennsylvania, and was formed for the purpose of supplying light, heat and power by electricity to the public of Altoona and Blair county.</p> <p>^ ^</p> <p>6. On or about April 1, 1908, the directors of said corporation were induced to abandon the manufacture of electricity and to enter into a contract for current with the Juniata Hydro-Electric Company, highly favorable to the latter and extremely prejudicial to the former.</p> <p>7. ' The Juniata Hydro-Electric Company has been purchasing the stock of the Citizens’ Electric Light, Iieat & Power Company with the purpose of obtaining control of and absorbing said company and its interests.</p> <p>8. Section 2, art. X of the by-laws of the Citizens’ Electric Light, Heat & Power Company reads as follows:'“None of the stock of this company shall be sold or transferred, unless the board of directors shall have received a notice thirty days previous thereto, and an option given said board to purchase it.”</p> <p>9. The purpose of this by-law is to keep all stock of the company within the control and possession of the remaining stockholders.</p> <p>10. The Juniata Hydro-Electric Company, knowing of this by-law, nevertheless, on April 27, 1909, presented certain certificates of stock for about 1,000 shares for transfer without giving the option, and had the same transferred.</p> <p>11, 12, 13. On April 30, 1909, there was a meeting of the board of directors of the Citizens’ Electric Light, Heat & Power Company called for the “specific purpose of making further and additional transfers of stock, to wit, between four and five hundred shares, to the said Juniata HydroElectric Company, or some individual or corporation in and for its behalf.” A notice protesting against the transfer was served by the plaintiffs on the officers and board of directors of said company. Notwithstanding the notice above mentioned and an oral protest by Guy M. Gest, a large stockholder, which protest was directed to be placed upon the minutes, the board of directors thereupon determined to transfer the stock so presented; and the officers, under the direction of the board of directors, proceeded to make out the new certificates. When this stock was presented for transfer, the provisions of the by-laws hereinbefore recited had not been complied with.</p> <p>14. One of the plaintiffs, Guy M. Gest, on April 8, 1909, took an option from E. A. Caum to purchase his ten shares of the Citizens’ Electric Light, Heat & Power Company, and from A. H. Closson, to purchase his ten shares of the said stock, and from Austin Shaffer, to purchase his ten shares of the said stock. The Juniata Hydro-Electric Company, knowing of the said options, persuaded the said persons to sell and deliver their certificates to it. The board of directors, although notified of said options, decided to allow the transfer to be made, “holding the same in abeyance awaiting the issue of the injunction of which they had notice.”</p> <p>15. It was the duty of the board of directors under the said by-law; not to transfer any stock without receiving an option, and upon receiving an option, “it became their duty to convene the stockholders, submit the question to them and act according to their instructions.”</p> <p>16. If the board of directors had submitted the question to the stockholders, they would have instructed the board to purchase the said stock.</p> <p>17. By the alleged failure of the board of directors to comply with the by-laws, the plaintiffs' have been irreparably damaged.</p> <p>The prayers were as follows:</p> <p>1. That the defendants be enjoined from transferring an3>stock submitted for transfer without an accompanying option.</p> <p>2. That the defendants be enjoined from delivering certificates of any stock already transferred, where the option had not been given.</p> <p>3. That the defendants be enjoined from transferring the stock in the names of E. A. Caum, A. H. Closson and Austin Shaffer.</p> <p>4. That the defendants be enjoined from permitting any person to vote at any meeting any stock transferred or offered for transfer within thirty days last past.</p> <p>5. That the defendants be enjoined to cancel the transfer of the 1,000 shares hereinbefore mentioned.</p> <p>6. That the board of directors be enjoined to exercise the option to purchase all stock offered for transfer within thirty days last past; and that they be directed to convene a meeting of the remaining stockholders to accept or reject the option to purchase.</p> <p>7. That an order or decree be made, or an injunction issued, pending the hearing on this bill, directing and commanding the officers and directors of said company to restore the status quo of the parties as it existed on April 30, 1909, and that they cancel upon the books of the company any stock transferred and delivered or left for transfer and not delivered, after the receipt by them of the notice contained in the twelfth paragraph of the bill, warning them of an intention to immediately apply to the court for an injunction to restrain said transfer.</p> <p>Dane A. Pearson presented a petition in which he averred:</p> <p>The organization and capitalization of the Citizens’ Electric Light, Heat & Power Company; that petitioner had purchased a majority of the stock of said corporation; that on April 27, 1909, 1,000 shares were by direction of the board of directors transferred to the petitioner; that on April 30, 1909, the ■ petitioner presented to the board for transfer an additional 487 shares, which the board directed to be transferred; that the certificates for said stock so directed to be transferred on April 30, 1909, were not delivered to your petitioner, but are in the possession of the board of directors of said company; that the petitioner is also the holder of an additional eighty-seven shares of the stock of the said company which he has not presented for transfer; and that the petitioner, by reason of his said stock ownership, is interested in the suit. The petitioner prayed for leave to intervene as party defendant.</p> <p>The court permitted the intervention.</p> <p>The court entered a decree awarding a preliminary injunction.</p> <p>After testimony was taken the injunction was continued.</p> <p>Errors assigned were in entering and continuing the preliminary injunction.</p>

<p>Appeal, No. 266, Jan. T., 1908, by defendant, from judgment of C. P. Clearfield Co., Dec. T., 1904, No. 31, for plaintiffs on case tried by the court without a jury in suit of B. H. Coryell and O. B. Bovard, doing business as The Coryell Construction Company, v. Dubois Borough.</p> <p>Assumpsit to recover a balance due on a municipal contract.</p> <p>The case was tried by Ormerod, P. J., specially presiding without a jury under the provisions of the Act of April 22, 1874, P. L. 109. The facts of the case are stated in the opinion of the Supreme Court.</p> <p>The court entered judgment in favor of the plaintiffs for $32,135.91.</p> <p>Error assigned was in entering judgment for plaintiffs.</p>

<p>Appeal, No. 289, Jan. T., 1909, by defendant, from judgment of O. & T. Lackawanna Co., April T., 1909, No. 19, on verdict of guilty in case of Commonwealth v. Shendore Fencez.</p> <p>Indictment for murder. Before Heydt, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned (1-10) sufficiently appear by the judgment of the Supreme Court.</p>

<p>Appeal, No. 100, Oct. T., 1909, by defendant, from judgment of C. P. Mercer Co., June T., 1906, No. 22, on verdict for plaintiff in case of Julia A. Struble v. Pennsylvania Company Operating the Erie & Pittsburg Railroad.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Williams, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,250. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Ejectment — Buie to bring ejectment — Dispute as to title of land — Option — Exercise of option — Notice in writing — Abandonment.</p> <p>1. A person in possession of land and claiming title thereto has the right under the Acts of May 25, 1893, P. L. 131, and April 16, 1903, P. L. 212, to rule another person out of possession, but with an apparent interest in the land, to bring an action of ejectment to determine title. When a petition for such a rule is presented the court should not of its own motion award an issue under the Act of June 10, 1893, P. L. 415, but if such an issue is awarded, and neither party makes any objection, the appellate court will not reverse a judgment on a verdict rendered at the trial of such issue, on account of the irregularity of the proceedings.</p> <p>2. Where an owner of coal gives an option to another to purchase the same, and stipulates that notice of the acceptance of the option should be given in writing, and it appears at the trial of an issue to determine whether such notice in writing had been given, that the persons giving the option deny positively ever having received written notice, the case is for the jury.</p> <p>3. WTiere persons having an option to purchase coal, take no action for seven years towards completing their title, and the optionor retains possession, pays taxes and claims title and gives an option to another party, the question of the optionee abandoning his interest in the land under the option is one for the jury, and a verdict and judgment against him will be sustained.</p>

<p>Railroads — Condemnation of land — Public use — Private use — Equity.</p> <p>1. A bill in equity to restrain a railroad company incorporated under the Act of April 4, 1868, P. L. 62, from condemning land, on the ground that the land was intended for a purely private, and not a public use, is properly dismissed, where the court finds from sufficient evidence that it was the intent and purpose of the incorporators of the defendant company to complete, equip and operate its railroad as required by law, and that public necessity demands the construction and operation of the road.</p> <p>2. Questions growing out of the exercise of the powers granted to a corporation cannot be raised in a proceeding under the Act of June 19, 1871, P. L. 1360, under which act the inquiry is always limited to a consideration of the question, Does the corporation possess the power to do what it is attempting to do, and not whether it is'exercising its power in an improper manner.</p>

<p>Appeal, No. 140, Oct. T., 1909, by-defendant, from judgment of C. P. Cambria Co., Dec. T., 1907, No. 376, for plaintiff on case tried by the court without a jury in suit of James P. Thomas, Trustee, v. Harbison-Walker Refractories Company.</p> <p>Assumpsit to recover royalties under a lease. Before O’Con-nor, P. J.</p> <p>The case was tried by the court without a jury under the act of April 22, 1874.</p> <p>O’Connor, P. J., found the facts to be as follows:</p> <p>The plaintiff in this case claims a right to recover the amount sought by him from the defendant under and by virtue of the terms of a lease granted by George T. Bliss, of the city of New York, to Harbison & Walker Company (defendant’s predecessor in title), under date of October 31, 1899. By virtue of this lease the Harbison & Walker Company acquired the right for twenty-one years to mine fire clay on all of lessor’s property in Cambria and Blair counties, at a royalty of ten cents per ton.</p> <p>James P. Thomas as trustee has succeeded to all the rights •of the original lessor, and Harbison-Walker Refractories Company, above named as defendant, has succeeded to all of the rights of the Harbison & Walker Company.</p> <p>There is little by way of fact in dispute between the parties to this proceeding. The trial of the cause was submitted to the court without a jury under the provisions of the act of 1874.</p> <p>The plaintiff stands alone upon the agreement dated October 31, 1899, and the defendant seeks relief from payment of a certain portion of plaintiff’s claim by reason of a course of ■dealing between the original lessor and defendant’s predecessor in title.</p> <p>George T. Bliss on October 30, 1891, entered into a, lease with Harbison & Walker, a partnership, giving to said partnership the right to mine fire clay on part of certain properties of lessor situate in Cambria and Blair counties, Pennsylvania, for the period of twenty-one years, at the royalty of fifteen cents per ton. This agreement was immediately recorded in both counties.</p> <p>On October 2, 1894, the partnership, Harbison & Walker, assigned this lease to Harbison & Walker Company, a corporation. On August 3, 1897, George T. Bliss and the Harbison & Walker Company entered into an agreement which modified that of 1891, by reducing the royalty from fifteen cents per ton to seven and a half cents per ton. No other money consideration was named. This land, together with some 3,500 additional acres, is embraced and included in the description contained in the lease of October 31,1899, under and by virtue of the terms of which the plaintiff seeks to recover in this action.</p> <p>Notwithstanding the terms of the lease of October 31, 1899, the Harbison & Walker Company continued to pay .royalty upon fire clay mined from that portion of the land described in the lease of October 30, 1891, at the rate of seven and a half cents, per ton, and upon the remainder of the land embraced and included in the lease of October 31,1899, at the rate often cents per ton. Why this was done does not appear, and because of this course of dealing the defendant company asserts that plaintiff is estopped from recovering the remaining two and a half cents per ton royalty on fire clay mined from this particular tract of land.</p> <p>We have affirmed each and every of plaintiff’s requests for findings of fact, adopted them as findings of fact by the court, and therefore do not set out and number separate general findings of fact. .</p> <p>By deed dated May 31, 1901, Harbison & Walker Company assigned its right under the aforesaid leases to HarbisonWalker Company, who in turn transferred to defendant.</p> <p>On November 5, 1902, the executors and trustees of George T. Bliss conveyed all the property formerly belonging to said Bliss to the plaintiff, who at or before that time had made a payment upon account of the purchase money. The deed, together with assignments of the aforesaid leases, was delivered about November 11, 1902, and accepted by the plaintiff. Prior to this time the plaintiff had no knowledge of any course of dealing between his predecessor in title and the defendant company or its predecessor in title, except as provided for in the lease of October 31, 1899, which was recorded in Cambria county and which had been examined and passed upon by plaintiff at that time.</p> <p>Defendant admits plaintiff’s right to recover the amount of his claim if defendant’s position that it is not required to pajr royalty at the rate of more than seven and a half cents per ton for clay mined on the lands described in the lease of October 30, 1891, is not sustained; but submits that its contention must be sustained, for the reason it was in possession of said land and paying at the rate of seven and a half cents per ton royalty on the land mentioned and described in the lease of October 30, 1891, at and before plaintiff’s claim attached to the lands in question, and that plaintiff was thereby put upon his inquiry concerning the rights of defendant under its possession, which inquiry would have informed the plaintiff of the course of dealing between his predecessors in title and the defendant company at the time plaintiff acquired title.</p> <p>As a proposition of law, we believe and so decide that the agreement of October 30,1891, and its modification of August 3, 1897, were merged in the agreement of October 31, 1899, and by the terms of this agreement the defendant company is bound, unless relieved by reason of the course of dealing between it and its predecessor, Harbison & Walker Company, with the original lessor, or his representatives.</p> <p>There is no ambiguity in the above-stated lease dated October 31, 1899, and therefore the contention that the parties thereto had placed a certain construction on it by reason of their course of dealing is not tenable; nor are we convinced that this course of dealing could have been set up in defense of a claim for royalty under the agreement of October 31, 1899, except in so far as it related to royalties settled for at'the rate recognized by the course of dealing.</p> <p>There was nothing in the character of the possession manifested by the operations of the defendant company, and nothing in the evidence which would indicate to the plaintiff that defendant was not operating under the lease dated October 31, 1899; and there is nothing in the testimony tending to show any course of dealing between the defendant company, its predecessor in title and the grantors of the plaintiff, which would bring home to the plaintiff knowledge of any course of dealing other than that outlined and provided for in the said agreement of 1899. There is no evidence before the court which is calculated to even raise a suspicion in the mind of the plaintiff at the time he took title to this property and succeeded to all the rights of his grantor and assignor of the course of dealing relied upon by the defendant to relieve it from a portion of plaintiff's claim, and plaintiff has always refused to accept royalty at a less rate than that provided by the agreement of October 31, 1899.</p> <p>The court entered judgment for plaintiff for $13,375.25, with interest.</p> <p>Error assigned among others was the judgment of the court.</p>

<p>Appeal, No. 144, Oct. T., 1909, by • plaintiff, from decree of C. P. Cambria Co., Sept. T., 1906, No. 8, dismissing bill in equity in case of Louisa Luther v. Frank O. Luther.</p> <p>Bill in equity to declare a trust ex maleficio. Before O’Con-nor, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned amongst others was decree dismissing the bill.</p>

<p>Appeal, No. 166, Oct. T., 1909, by defendant, from judgment of C. P. Cambria Co., June T., 1907, No. 169, on verdict for plaintiff in case of Charles Crum, Executor of Sylvester Crum, deceased, v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for injuries to land. Before O’Connor, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial when Charles Crum was on the stand he was asked this question:</p> <p>Mr. Davis: “Q. When did the change take place in that dam and race? ”</p> <p>Mr. Storey: Defendant’s counsel object to any testimony from the witness or from the plaintiff which is included within the amendments made by him in this case as being incompetent, in so far as the claim is set forth: in other words, that the statement avers the new channel was made in 1898 and that the amendment is invalid inasmuch as it is only to change the dates so as to bring it within the statute of limitations, and that such amendments cannot be made where the statute interposes.</p> <p>The Court: The objection is overruled, an exception noted and bill sealed for the defendant company. [1]</p> <p>Defendant presented these points:</p> <p>1. Inasmuch as plaintiff is suing for an unlawful trespass, in turning the water into the new channel, about May, 1898, whereby the cause of action then accrued, and having neglected to bring his action until April 3, 1907, the statute of limitation bars a recovery. Answer: Denied. [2]</p> <p>2. Inasmuch as the amended statement is for the same cause of action, excepting the attempt to change the date to bring it within the statutory period it is invalid and plaintiff cannot recover. Answer: Denied. [3]</p> <p>3. That the deed of release executed and delivered by Sylvester Crum, to the defendant company, on December 11,1901, wherein he for himself, his heirs, executors, administrators and assigns, did release and discharge the defendant company from all claims, demands, payments of money and right to compensation for or on account of any and all damages, by reason of the change of the course in the Little Conemaugh river, is a bar to this action, and the verdict should be for the defendant company. Answer: Denied. [4]</p> <p>6. Under all the evidence in the case the verdict should be for the defendant. Answer: Denied. [5]</p> <p>Verdict for plaintiff for $7,500, upon which judgment was entered for $5,000, all above that sum having been remitted. Defendant appealed.</p> <p>Errors assigned were (1) rulings on evidence, quoting the bill of exceptions; (2-5) above instructions, quoting them.</p>

<p>Negligence — Railroads—Master and servant — Car inspection.</p> <p>1. In an action against a railroad company to recover damages for the death of a locomotive engineer, the case is for the jury where the evidence tends to show that the accident was the result of the derailment of a car caused by a broken flange; that the break in the flange was an old one and existed when the car was received at the defendant’s yard, which was the place for regular inspection; that the break would have been discovered if a proper inspection had been made; and that if any inspection was made, it was made by an inexperienced and inadequately instructed employee who failed to make the usual tests.</p> <p>Negligence — Damages—Death—Charge of court.</p> <p>2. In an action by a wife to recover damages' for the negligent killing of her husband, the measure of damages is not the amount of the probable earnings of the deceased that would have gone to the support of his family, but the present value thereof.</p> <p>3. Where in such a case the trial judge makes a correct statement of the rule, although perhaps not so clear and explicit as to insure its full understanding by the jury, counsel should ask at the time for fuller and plainer instructions, and if they fail to do so they have no standing on appeal to ask for a reversal of the judgment;</p>

<p>Appeal, No. 83, Oct. T., 1909, by plaintiffs, from judgment of C. P. Westmoreland Co., Nov. T., 1906, No. 548, on verdict for defendants in case of Edward Patchin et al. v. Seward Coal Company, et al.</p> <p>Ejectment for land in St. Clair township. Before McConnell, J.</p> <p>At the trial it appeared that the land in dispute had been sold by A. D. Bates, committee in lunacy of George Patchin, in the latter’s lifetime to the predecessor in title of the defendant. George Patchin resided in Clearfield county, and his committee secured an order of court, directing the sale of land in Clearfield county, and also authorizing an application to the court of Westmoreland county for an order to sell the lands in controversy. The records both of Clearfield and Westmoreland county showed on their face service of notice of the proceedings on the widow and next of kin.</p> <p>The court under objection and exception admitted these records. [1, 2]</p> <p>When Mollie Patchin was on the stand the following offer was made:</p> <p>Mr. Robbins: It is proposed to ask the witness on the stand, Miss Mollie Patchin, who is a daughter of George E. Patchin, deceased, and one of his heirs and next of kin, with regard to the alleged notice attached to the proceedings at No. 252 of December Term, 1897, in the court of common pleas of Clear-field county, which has been offered in evidence by the defendants, whether or not such notice was presented to her and when, and whether or not the several names signed thereto were signed by the proper persons, or how they were signed, and also to inquire whether she was present when the alleged notice was signed, and who signed it — for the purpose of showing that the alleged notice is not such notice as required by the act of 1836 to be given by a committee of a lunatic prior to an application for sale of real estate in order to give the court jurisdiction; and that the signatures to said notice are not genuine; that the same is not signed by the parties purporting to have signed the same: and also for the purpose of rebutting any presumption that might arise upon the face of the paper itself.</p> <p>Mr. Moorhead: To this offer counsel for defendants object, for the reason that there is nothing in the pleadings in this case to show that any question such as is offered now to be proved with regard to the signatures not being genuine, was heretofore raised; and, second, that the proof itself would be immaterial and irrelevant so far as a purchaser under said proceedings would be concerned, or the present defendants holding under such purchaser.</p> <p>3. The witness now offered was one of the children of George Patchin who is admitted by the pleadings to have been of full age at the time said notice was given.</p> <p>4. The other purpose in the offer, to show that it was not such a notice as the law requires, is not one about which the witness can testify.</p> <p>Mr. Robbins: We add to the offer: to be followed by evidence that Edward Patchin, H. C. Patchin and Frank Patchin did not sign the alleged notice attached to the pleadings heretofore offered in evidence by the defendants; that they never heard of the same or saw the same until they appeared here at Greensburg in connection with the trial of this case two days ago, nor did they authorize any person else to sign said notice for them or approve of any person’s action in connection therewith.</p> <p>Mr. Moorhead: The same objection.</p> <p>The Court: The proofs that are now offered are substantially an attack upon the record in the common pleas of Clearfield county on the ground of fraud, and no basis for an attack on that ground having been made in their pleadings, the first objection made to the admissibility of the evidence is sustained. An exception may be noted in favor of the plaintiffs. [3, 4]</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions, and (10) in giving binding instructions for defendants.</p>

<p>Appeal, No. 21, Oct. T., 1909, by defendant, from judgment of C. P. Somerset Co., Sept. T., 1906, No. 239, on verdict for plaintiff in case of Henry Spritzer v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Kooser, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $4,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

Appeal, No. 48, Oct. T., 1909, by plaintiff, from decree of C. P. Somerset Co., Equity Docket, 1907, No. 14, dismissing bill in equity in case of Daniel B. Zimmerman v. Alex. Rhoads and S. N. Widdup. Bill in equity for specific performance of a contract. Before Gillan, P. J., specially presiding. From the record it appeared that the contract sought to be enforced was exactly as follows: “Agreement made the 8th day of December, 1906, between Alex.

<p>Appeal, No. 182, Oct. T., 1909, by Ella R. Owens, from decree of O. P. Somerset Co., Equity Docket, 1906, No. 12, overruling report of auditor in case of John O. Rauch et al. v. Island Park Association.</p> <p>Bill in equity for the appointment of a receiver.</p> <p>Exceptions to report of J. G. Ogle, Esq., auditor.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned amongst others was in overruling the auditor’s report.</p>

<p>Banks and banking — Depositor—Cashier—Balance in pass book — Estoppel.</p> <p>1. In an action by a depositor against a bank to recover a balance of deposit, the case is for the jury where the plaintiff claims that three items of deposit were made in the course of banking business, while the defendant claims that the three items were not deposited, but were in fact private loans to the cashier of the bank, and the evidence as to the respective claims is conflicting.</p> <p>2. In such a case the trial judge commits no error in refusing a point to the effect' that if the jury found that the general manager of the plaintiff company and the cashier of the bank made an arrangement by which the amount of money represented by the three disputed checks was intended as an individual loan to the cashier and was received by him as such, there could be no recovery. The rights of the plaintiff and the liability of the bank did not necessarily depend upon what the respective officers did, or attempted to do, because they may have acted outside of the scope of their authority by undertaking to do what they had no right or power to do.</p> <p>3. A balance struck in a pass book is in effect an account stated between a bank and its depositor, which may be impeached for fraud or error, but unless so impeached the bank is estopped from denying its liability as shown by the account so stated by it.</p> <p>4. Whether a bank is or is not estopped from denying its liability for a balance stated by reason of fraud or error depends upon the facts, which are for the jury. In such a case the burden is on the bank attempting to evade responsibility because the presumption is that the balance stated by its own officers is correct and truly represents the account between the parties.</p>

<p>Criminal law — Murder—Misconduct of juror — “Two term rule.”</p> <p>1. A judgment on a verdict of guilty on a murder trial will be set aside where it appears that the jury slept in a hotel, where they walked and lounged and mingled with the other guests, that they went separately with tipstaves to drinking saloons, to drug stores and to barber shops, that some of them drank in the saloons, and that they were furnished with beer and whisky which they drank in their room in the hotel.</p> <p>2. It is the duty of the court to see that the jury, after they are charged with the prisoner, are not exposed to contact or do not communicate with outsiders either during the progress of the trial or after they have returned to their room to deliberate and make up their verdict; and it is also the duty of the court not to permit the jury to receive and use intoxicating liquors while they have the prisoner in charge.</p> <p>3. It seems that the right of a prisoner to be discharged under the “two term rule,” is essentially a habeas corpus proceeding under sec. 54 of the Act of March 31,1860, P. L. 427, which is a re-enactment of the Act of February 18, 1785, 2 Sm. L. 275, sec. 3. This proceeding is separate and distinct from the trial of the cause and is not reviewable on an appeal from a conviction at the trial.</p>

<p>Appeal, No. 9, Oct. T., 1909, by defendant, from judgment of the Superior Court, April T., 1908, No. 38, affirming judgment of C. P. Butler Co., Sept. T., 1907, No. 26, on verdict for plaintiff in case of Martin L. Gibson v. Bessemer & Lake Erie Railroad Company.</p> <p>Appeal from judgment of the Superior Court.</p> <p>Errors assigned appear from the opinion of the Supreme Court.</p>

<p>Negligence — Master and servant — Mines and mining — Mine foreman —Mine superintendent — Fellow servant — Act of May 15, 1893, P. L. 52.</p> <p>While a mine foreman is a fellow servant of the miners employed in the mine, yet if the company which employs him makes him also the superintendent of the mine, and through his negligence the roof of an entry falls and injures a miner, the company will be liable in damages for his negligence to the person injured.</p>

<p>Appeal, No. 119, Oct. T., 1909, by defendant, from judgment of C. P. Butler Co., Sept. T., 1908, No. 31, on verdict for plaintiff in case of Araminta Smathers v. Pittsburg & Butler Street Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Taylor, J., specially presiding.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Statute of frauds — Gift—Real estate — Evidence.</p> <p>1. Where an attempt is made to set up a parol gift of real estate by a father to a son, the evidence to sustain the gift must be direct, positive, express and unambiguous. If not a single witness testifies that he was present when the gift was made, or that he heard it spoken of between the father and son, or brings the father and son together face to face with respect to the transaction, and there is nothing in evidence but loose declarations made by the father to the effect that he had turned over his property to his son, and that he himself had nothing to do with it, and there is no evidence that the son had made improvements on the property out of his own funds, the alleged gift will not be sustained.</p> <p>Statute of limitations — Adverse possession — Admission of title.</p> <p>2. If an occupant of land admits in writing that the land on which he lives belongs to another, it is a voluntary submission to the title of the other, and a surrender of any rights acquired by a prior possession. Nothing can more effectually interrupt the running of the statute than an express acknowledgment of the owner’s title.</p>

<p>Contract — Joint contract — A ction — Parties,</p> <p>Where three persons make a joint contract of sale, one of them cannot, either in his own name, or in the name of the three to his own use, maintain an action to recover one-third of the purchase money.</p>

<p>Negligence — Death—Parties—Amendment—Parent and child.</p> <p>1. Where an action is brought in proper form by a father to recover damages for the death of his son caused by the negligence of another, and it appears from the record that the son died within a few hours after the accident, and was unmarried, the record may be amended after the expiration of one year from the death of the son by adding the name of the mother as a party plaintiff.</p> <p>Negligence — Street railways — Death—Crossing tracks.</p> <p>2. Failure to look immediately before driving upon the tracks of a street railway is negligence per se.</p> <p>3. "Where it clearly appears from the testimony that a person killed in crossing the tracks of a street railway failed to look for an approaching car as he reached the edge of the track, contributory negligence is established as a matter of law and binding instructions for the defendant are proper, but where there is no positive testimony upon this material fact the presumption is that the decedent did his duty as he approached the tracks.</p>

<p>Appeal, No. 151, Oct. T., 1909, by The Southside Trust Company of Pittsburg, Trustee in Bankruptcy for Pulaski Springs Hotel Company, Successor in Title to the Pennsylvania Hotel & Sanitarium Company, Owner, from order of C. P. Lawrence Co., Sept. T., 1908, No. 13, dismissing petition to limit and define curtilage in case of Harry M. Wirsing v. Pennsylvania Hotel & Sanitarium Company, Owner or Reputed Owner.</p> <p>Petition to limit and define curtilage. Before Porter, P. J.</p> <p>The opinion of the Supreme Court states the facts of the case.</p> <p>Error assigned was order dismissing the petition.</p>

<p>Negligence — Master and servant — Defective scaffolding.</p> <p>In an action by an employee against his employer to recover damages for personal injuries caused by the fall of a scaffold constructed by the defendant for the use of its employees, the case is for the jury and a verdict and judgment for plaintiff will be sustained where the testimony is conflicting as to the safety of the method used in bracing the scaffolding.</p>

<p>Practice, C. P. — Charge—Trial.</p> <p>1. Where the trial judge fully and correctly sets forth in his charge the claims of each party, without particularly referring to the testimony, and tells the jury that they are to make up their verdict from the evidence as they remember it, the judgment will not be reversed because the judge did not particularly refer to certain admissions made by one of the parties, and this is particularly the case, where the judge was not asked at the trial to make comment upon them.</p> <p>Appeals — Assignment of error — Refusal of new trial.</p> <p>2. The refusal of a motion for a new trial is not a proper subject for an assignment of error.</p>

<p>Lunacy — Committee—Investment of funds — Surcharge.</p> <p>Where a committee of a lunatic, without an order of court, invests the lunatic’s estate in the bonds of a private corporation, secured by a mortgage, and the bonds become worthless by the bankruptcy of the corporation, he is personally liable for the loss. The court will not four years after the investment was made, and after the bonds had become worthless, ratify and approve the investment nunc pro tunc.</p>

<p>Will — Conversion—Blending of real and personal estate — Power of sale.</p> <p>1. Even if there be no positive direction in a will to sell, yet an intention to convert into money will be implied where the will blends real and personal estate in such a way as to show that the testator intended to create a fund out of both and bequeaths the shares thereof as money.</p> <p>2. Where a testator devises a farm at a stipulated price to one of his sons, excepting a vein of coal; blends the remainder of his real estate with the personalty, divides the total into shares, malting the price of the farm part of such total, and then distributes the shares among his wife and children, the will works a conversion of the real estate including the coal under the farm devised to the son.</p>

<p>Appeal, No. 14, Oct. T., 1909, by plaintiff, from decree of C. P. Washington Co., No. 1,763, In Equity, dismissing bill in equity in case of L. H. Ramsey v. Elizabeth Jane Ramsey, Kate F. Ramsey, U. B. Ramsey, Morgan R. Prigg and Lillian B. Prigg, his wife, in right of the wife, M. J. Flynn and E. K. Gribben.</p> <p>Bill in equity for partition. Before Taylor, J.</p> <p>In addition to the facts stated in Ramsey v. Ramsey, No. 1, ante, p. 249, it appeared that the coal involved in the present proceeding was situated in East Finley township, and that the decedent owned a half interest therein, M. J. Flynn and E. K. Gribben being the owners of the other half interest.</p> <p>The court dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Contract — Illegal contract — Partnership—Violation of liquor law— Concealment of name of one of the partners — Act of June 9, 1891, P. L. 257, sec. 4, and act of congress, internal revenue laws, sec. 3259, tit. 35, ch. 4 (2 U. S. Comp. Stat. 2113).</p> <p>1. If a plaintiff is compelled to rely upon an illegal contract to make out his right to what he asks he cannot succeed.</p> <p>2. A bill in equity by a surviving partner against the executrix of the deceased partner for an accounting cannot be sustained where it appears that the partnership agreement was for the manufacture and sale of distilled spirituous liquors, that the business was to be conducted in and under the name of one of the partners only, and that for years all the licenses, both state and federal, were taken out in the name of the deceased partner only, the name of the other partner being wholly concealed on account of creditors. Such a contract of partnership is an illegal contract in clear violation of the Pennsylvania Act of June 9, 1891, P. L. 257, sec. 4, and the act of congress, internal revenue laws, sec. 3259, tit. 35, ch. 4 (2 U. S. Comp. Stat. 2113).</p> <p>3. Where a party seeking to recover is obliged to make out his ease by showing an illegal contract or transaction, or through the medium of an illegal contract or transaction, he is not entitled to recover any advances made by him in connection with the contract, or money due him as profits derived from the contract.</p>

<p>Appeal, No. 105, Oct. T., 1909, by defendant, from judgment of C. P. Washington Co., May T., 1909, No. 25, on verdict for plaintiff in case of Mellon National Bank of Pittsburg v. People’s Bank of California.</p> <p>Assumpsit to recover the amount of three checks included in an account stated. Before Taylor, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $6,262.91. Defendant appealed.</p> <p>Errors assigned were in giving binding instructions for plaintiff and in overruling motion for judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 152, Oct. T., 1909, by plaintiff, from judgment of C. P. Washington Co., May T., 1908, No. 93, on verdict for defendants in case of John T. Reagan, Guardian of Marcella Chambers, a Minor, v. P. A. Curran and Julia B. Curran.</p> <p>Ejectment for land in Cecil township. Before McIl-VAINE, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Errors assigned were various instructions indicated in the opinion of the Supreme Court.</p>

<p>Banks and banking — Checks—Agency—Surrender of money after payment of check — Contract—Illegal contract — Fraud.</p> <p>1. Where a collecting bank receives payment of a check, and on the same day pays back the money on notice that the check was a fraudulent one, and returns the check to the bank which sent it without giving any notice that the check had been in fact paid and the money returned, the collecting bank in a suit against it by the transmitting bank to recover the proceeds of the check which had been paid, cannot set up as a defense the fact that the cashier of the transmitting bank had knowledge of the fraudulent character of the check.</p> <p>2. It is never a defense to an action by a principal for money collected by his agent for the latter to show that in equity and good conscience the money belonged to a third party. He cannot deny his principal’s title.</p> <p>3. If an agent has received money from third persons for his principal by his authority, which money accrued from an illegal transaction between the principal and such third persons, who have no connection with the agent, the principal may recover it from his agent, for, as between them, the receipt of the money for the principal is upon a legal contract, although the money itself accrued under a former illegal transaction.</p>

<p>Appeal, No. 192, Oct. T., 1909, by-Maude C. Leonard, now Maude C. Manon, from decree of O. C. Washington Co., May T., 1908, No. 62, dismissing exceptions to auditor’s report in Estate of Maude C. Leonard, now Maude C. Manon, a Minor.</p> <p>Exceptions to report of H. B. Hughes, Esq., auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p>

<p>Equity — Injunction—Inadequate remedy at law — Taxation.</p> <p>1. Equity has jurisdiction, to restrain by injunction an attempt on the part of the supervisors to enforce the collection of a road tax which they have no power to impose. If the tax is a lawful one, but the manner of collecting it is oppressive or unfair, the taxpayer injured has an adequate remedy at law by an appeal.</p> <p>2. A bill in equity by taxpayers against supervisors to enjoin the collection of road taxes will be sustained where the bill specifically avers that there was not sufficient valid legal indebtedness in making a levy of two mills for debt; that a one and one-half mills cash tax for state roads was excessive and much greater than the sum required for that purpose; and that the levy of a one-half mill cash tax for roadmaster’s salary and expenses was without authority of law.</p> <p>Mr. Justice Elkin dissents.</p>

<p>Criminal law — Murder—Insanity—Charge of court.</p> <p>1. On the trial of an indictment for murder it is reversible error for the court to charge the jury that they might acquit the defendant if they believed from the evidence that at the time of the killing he was insane, but that they “should be fully satisfied of defendant’s insanity.”</p> <p>2. On the trial of an indictment for murder, it is manifest error for the court to charge as follows: “The burden of reducing the crime from murder to manslaughter where it is proved that the prisoner committed the deed lies on him, but it is incumbent on the commonwealth to satisfy you beyond a reasonable doubt of those facts and circumstances which constitute a crime of murder in the first degree. If you are satisfied beyond a reasonable doubt that malice did not exist, then the killing would be manslaughter.”</p> <p>3. Where on the trial of an indictment for murder the prisoner presents a point which is not applicable to the case under the evidence, a wrong answer to the point is of no consequence except it be shown that the defendant was prejudiced thereby.</p> <p>Mitchell, C. J., Potter and Elkin, JJ., dissent.</p>

<p>Appeal, No. 211, Oct. T., 1908, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1907, No. 651, dismissing bill in equity in case of Frederick G. Bannerot v. H. M. Davidson and Samuel Holmes.</p> <p>Bill in equity for an injunction. Before Frazer, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Corporations — Treasurer—Power to sign commercial paper — By-laws —Evidence.</p> <p>1. If the directors of a corporation acquiesce in the acts of its treasurer in executing or indorsing commercial paper while holding himself out to the public as having authority so to do, they thereby constitute him the general agent of the corporation to make such indorsement; and when the treasurer is thus made its general agent for such purpose, the corporation will be bound, though the indorsee had no knowledge of any previous indorsement.</p> <p>2. In an action against a corporation on a promissory note signed by the treasurer of the company, the burden is upon the plaintiff to show the authority of the treasurer to sign the note on behalf of the company. If the by-laws neither authorize nor forbid the treasurer to sign commercial paper, the plaintiff may offer testimony to show his authority, to the effect that the treasurer was a director of the company, owned three-fourths of its stock, was manager of a hotel operated by the company, kept the account of the corporation in bank in his name as treasurer, signed checks in his name as treasurer, had previously signed notes for the company, including one to the plaintiff, all of which had been honored and paid, where there was nothing to show that the company did not receive the proceeds of the note, except the failure of the books of the company to show that it did.</p>

<p>Trover and conversion — Right of action — Principal and agent — Possession — Parties.</p> <p>1. As against a stranger possession alone is sufficient to maintain an action of trover and conversion, and in such case, the plaintiff need prove no more than possession.</p> <p>2. A salesman who delivers goods of his principal in his possession, to an intending purchaser under an agreement that the latter shall return them if the sale is not approved by his house, may maintain an action of trover and conversion to recover the goods if they are not returned according to the agreement.</p> <p>3. In such a case a memorandum of the items and the prices of the goods given by the agent to the intending purchaser, is not conclusive evidence of a sale and delivery of the goods in view of the agent’s testimony as to the agreement under which they were delivered, and his testimony that he had no authority to sell upon the terms proposed by the defendant and had so informed the latter.</p>

<p>Appeal, No. 18, Oct. T., 1909, by-Edward A. Smith and Henrietta C. Smith, his wife, from decree of O. C. Allegheny Co., May T., 1908, No. 152, dismissing exceptions to adjudication in Estate of Edward A. Smith.</p> <p>Exceptions to adjudication.</p> <p>The material portion of the testator’s will was as follows;</p> <p>“Fourth. I give and bequeath to Hugh D. Smith, my son, and David M. Smith, my brother, and the survivor of them a like one-sixteenth (1-16) interest in the firm of Smith Brothers and Company, its real estate, assets, business and working capital, and a one-sixth interest in my residuary estate as hereinafter provided, in trust, however, that they or he shall pay the profits and dividends thereon from time to time as they shall be declared and divided by said firm, and the income from the one-sixth interest in my residuary estate to my son Edward A. Smith during his natural lifetime: provided said profits and dividends from said firm and income from the one-sixth interest in my residuary estate do not exceed three thousand dollars ($3,000.00) per annum.</p> <p>“And I further direct said Trustees or Trustee to invest any and all income and dividends arising from said interest in said firm and from said one-sixth interest in my residuary estate,' after the payment of said three thousand dollars ($3,000.00) per annum to my son Edward during his natural life as herein-before provided, and all the dividends and profits arising from said interest and accumulations after the death of my said son Edward and allow the same to accumulate until the oldest child of my said son Edward, living at the time of my death, shall become twenty-one years of age when said accumulated income shall be divided into as many shares as there are children of my said son Edward living at the time of my death (the children of any deceased child of Edward to represent their parent and be counted as representing one share), of these shares those of my said son Edward's children who are twenty-one years of age are to receive one share each of said accumulations of income and thereafter receive a similar proportion of the surplus income above three thousand dollars ($3,000.00); the shares of those who are minors at the time of my death to continue to accumulate until they respectively become twenty-one years old when they are to receive the same with a corresponding share of the surplus income thereafter, and in the event of the death of my son Edward either before or after my death all the income from said interest in said firm, and the income from the one-sixth interest in my residuary estate shall be divided share and share alike among his children him surviving (the issue of deceased children taking their parents’ share) until the youngest of said son Edward’s children become twenty-one years of age when said interest in said firm shall be sold and the proceeds and the one-sixth interest in the residuary estate shall be divided among said children of my son Edward share and share alike. My intention being that this portion of my estate shall go only to the children of Edward A. Smith, or their children. If he, said Edward, should die leaving no child surviving him, nor the issue of any deceased child surviving him then this portion of my estate shall go to my remaining children, or their legal representatives. Provided, that said Edward shall not have the power to sell, assign, pledge, transfer or anticipate any portion of said income or dividend, and that the same shall not be liable to attachment or seizure for his debts, or in any way liable therefor. And I further authorize and empower said Trustees or Trustee at any time in their or his discretion to sell said interest in Smith Brothers and Company, herein devised to them and reinvest the proceeds of said sale in real property or personal securities to be held as to the principal, income and accumulations thereon upon the same trusts as-specified herein in respect to said interest in said firm and the profits and accumulations arising therefrom and the increase from said one-sixth (1-6) interest in my residuary estate.”</p> <p>From the record it appeared that the testator, Andrew D. Smith, died on October 21,1908. One of the daughters of Edward A. Smith, Miriam C. Smith, died a minor on November 19, 1903, subsequent to the time when the oldest child became twenty-one years of age. She died intestate, unmarried and without issue, leaving to survive her her father, mother and four brothers.</p> <p>The auditing judge, Over, J., held that the legacy to Miriam was contingent and refused to allow the claim of her father and mother to share in the distribution as her next of kin.</p> <p>Exceptions to the adjudication were overruled.</p> <p>Error assigned was in overruling exceptions to adjudication.</p>

<p>Appeal, No. 39, Oct. T., 1909, by-plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1906, No. 327, for defendant non obstante veredicto in case of Fidelity Title & Trust Company, Executor of the last will and testament of John W. Benson, deceased, v. Thomas H. Chapman, Administrator d. b. n. c. t. a. of Ann K. Benson, deceased, with notice to John A. Ganter, terre-tenant.</p> <p>Scire facias sur mortgage. Before Frazer, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the jury returned a verdict for plaintiff. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 85, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 799, on verdict for plaintiff in case of Louis Hochheiser, by his next friend, Charles Kohut, v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Swearingen, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,650. Defendant appealed.</p> <p>Error assigned was in refusing judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 86, Oct. T., 1909, by plaintiffs, from order of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 1,069, refusing to take off nonsuit in case of Elizabeth C. Johns, by her father and next friend, James Anthony, v. Pennsylvania Railroad Company, operating the West Penn Railroad.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Carnahan, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit, and ruling on evidence referred to in the opinion of the Supreme Court.</p>

<p>Municipalities — Consolidation—Indebtedness—Taxation—Act of February 7, 1906, P. L. 7.</p> <p>1. When two or more cities are consolidated into one municipality, the legislature by the act authorizing the consolidation may make the consolidated city liable for the indebtedness of the old municipalities; or it may provide for an equitable apportionment of the existing burdens by requiring each of the respective municipalities to be responsible for its own indebtedness at the time of consolidation, and by providing for the payment of such indebtedness by taxation limited to the property located within the limits of the municipality contracting the same.</p> <p>2. The consolidated city of Pittsburg has no power to levy a tax upon real estate situated in the city of Allegheny belonging to railroad companies for the purpose of paying the debt of the city of Allegheny created prior to the consolidation, where it appears that such real estate is essential to the exercise of the franchises of the railroad companies, and that the city of Allegheny had never taxed it and had no power to tax it prior to the consolidation.</p> <p>3. The consolidating act did not confer upon the consolidated city the power to create any new subjects of taxation either within the old limits of each of the constituent cities, or indeed within the limits of the consolidated city treated as a single municipality.</p>

<p>Negligence — Master and servant — Explosion of boiler.</p> <p>In an action against an employer to recover damages for the death of an employee, caused by the explosion of a boiler, the case is for the jury where there is testimony tending to show that both the general manager of the defendant's works and the superintendent of the factory where the accident happened, had cause to know, notwithstanding the reports of inspection, that the boiler was unsafe.</p>

<p>Appeal, No. 91, Oct. T., 1909, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 468, dismissing bill in equity in case of Samuel Dorsett v. Elizabeth Dorsett.</p> <p>Bill in equity for an injunction, an account, and for a conveyance of real estate. Before Swearingen, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were (1) decree dismissing the bill and, (2) refusal to permit the plaintiff to testify.</p>

<p>Negligence~Master and servant — Defective building — Case for jury.</p> <p>In an action to recover damages for the death of defendant’s superintendent caused by the falling of a tank containing 15,000 gallons of water, the case is for the jury where the evidence tends to show that the tank fell because the steel substructure on which it rested gave way, that the substructure .was defective in design and of insufficient strength to support the tank when filled with water; and that the design was an unusual one and had been selected and approved by the defendant.</p>

<p>Appeal, No. 103, Oct. T., 19.09, by Leon Sadowski and Damian Wahl, Garnishees, from judgment of C. P. No. 1, Allegheny Co.,'June T., 1905, No. 366, on verdict for plaintiff in case of Stephania R. Owecka v. John Nowak and Leon Sadowski and Damian Wahl, Garnishees.</p> <p>Attachment execution. Before Brown, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $3,647.83. Garnishees appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Negligence — Master and servant — Vice principal — Fellow servant— Question for jury.</p> <p>1. In an action against an employer to recover damages for the death of an employee resulting from the breaking of a steel hanger of a scaffolding upon which the deceased was employed, the question as to whether the foreman in charge of the work was a vice principal or a fellow servant is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence tends to show that the foreman had entire charge of the particular department of the work where the accident occurred; that he employed and discharged men; that he was directed by defendant to procure from a particular steel company materials necessary for the building of the scaffolding; that in doing so he selected without inspection or testing steel that was brittle, insufficient in thickness and unsuited for making hangers, and that the accident was caused by the brealdng of one of the hangers made from such steel.</p> <p>2. One who has been placed in entire charge of a distinct branch of his employer’s business not merely to superintend it but to control it, with no one else to exercise any discretion or oversight, is a vice principal.</p> <p>3. An employee whose duty it is to build a scaffold is providing a place to work, and in so doing he is charged with the duty of his employer, which could not be delegated by the employer so as to relieve him from liability for its improper performance. In selecting materials for the scaffold the employee was vested with a discretion as to what was necessary which the employer could not delegate except at its peril.</p> <p>Negligence — Damages—Death—Parent and child — Age of mother.</p> <p>4. The age of a mother suing for the death of a son, should be made to appear, but if no objection to the failure of proof on this subject is raised at the trial and the record shows that the mother was present and testified, and the jury had an opportunity of seeing her, the failure of proof as to her age is not ground for reversing the judgment in her favor.</p>

<p>Appeal, No. 124, Oct. T., 1909, by defendant, from decree of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 427, on bill in equity in case of The New York & Cleveland Gas Coal Company v. W. H. Graham.</p> <p>Bill in equity to cancel á mortgage and quiet title.</p> <p>Miller, J., specially presiding, found the facts to be as follows:</p> <p>FINDINGS OF FACT.</p> <p>. 1. On December 27, 1895, W. H. Graham, the defendant, and Lizzie, his wife, conveyed to the plaintiff company, a corporation, a tract of land in Penn and Wilkins townships, containing about eighty acres underlaid with coal, for the consideration of $6,173.75; in addition to which the plaintiff assumed the payment of a mortgage on the premises of $1,643.75, all of which is shown in the deed between the parties. The above-named purchase money seems all to have been paid or provided for save the sum of $2,530, for which the plaintiff gave to the defendant a purchase-money mortgage, interest payable semiannually, the principal to be paid two years after the death of William Robb and Mary Anne Robb, his wife, or the survivor of them, as appears by said purchase-money mortgage on which mortgage there still remains due the sum of $1,900 with interest from June, 1905.</p> <p>In addition to the covenants of general warranty contained in the said deed there was also a covenant for quiet possession, and likewise a covenant of indemnity, as follows:</p> <p>“And the said William H. Graham, and Lizzie Graham, his wife, parties of the first part, for themselves, their heirs, executors and administrators, do covenant to and with the said New York & Cleveland Gas Coal Co., its successors and assigns, by these presents, that it, the said New York & Cleveland Gas Coal Co., its successors and assigns shall and may from time to time, and at all times forever hereafter, peaceably and quietly have, hold, and enjoy all and singular the said premises hereby granted and released, without the hindrance, denial or interruption of any person or persons lawfully claiming or to claim any right, title, estate or interest at law or in equity in, to, or out of the same, or any part thereof. And they, the said William H. Graham, and Lizzie Graham, his wife,'parties of the first part for themselves, their heirs, executors and administrators do further covenant and agree, that they the said William H. Graham and Lizzie Graham, their heirs and assigns, will hold and save harmless and indemnify the said party of the second part, its successors and assigns, of and from all damages, costs, expenses, attorney's fee or other charges that may arise or be caused in consequence or by reason of any claim or any person or persons claiming any right, title, estate or interest at law or in equity, in, to or out of the premises hereby conveyed, or any part thereof, or by reason of any knowledge of the said warranty of quiet possession.''</p> <p>3. Prior to, and at the time of closing said transaction, the plaintiff in the examination of the title found of record the following agreement:</p> <p>“Know all Men by These Presents, That Whereas William Robb and Mary M. Robb, his wife, of the County of Allegheny and State of Pennsylvania, have this day by deed of even date herewith, sold and conveyed unto W. H. Graham, all that certain tract or piece of land situate partly in Wilkins Township and partly in the Township of Penn, in the County of Allegheny and the State of Pennsylvania, containing 80 acres and 60 perches more fully and at length described in said deed of conveyance, now this agreement witnesseth, That he, the said W. H. Graham contracts and agrees that the said William Robb and his wife, Mary M. Robb, shall have the privilege and right to remain on said property during their natural lives, or the natural life of the survivor of them, free from the payment of any rent, taxes, assessments or encumbrances of any kind, and the said William Robb and wife, Mary M. Robb, to have the rights and privileges as above set forth of said property for and during that time. Witness our hands and seals this 16th day of February, A. D. 1884.” Duly signed by the four parties and sealed and acknowledged. A written notice from William Robb was also served upon the plaintiff at the time protesting against the sale of the coal under said tract and claiming a life estate in the land.</p> <p>4. The defendant Graham was a son-in-law and his wife, Lizzie, was a daughter of William Robb and Mary Robb. It appears from other proceedings hereafter referred to that Graham, for the purpose of relieving Robb of his pressing liabilities, purchased said farm or tract of land, and as a part consideration therefor, in the nature of a family arrangement, executed the foregoing contemporaneous agreement which he construed to be a mere right of occupancy, with a home, for his father-in-law and mother-in-law during their lives.</p> <p>5. The plaintiff company and its counsel, with Graham at the time of the purchase, with said agreement before them, construed the same to grant a mere right of occupancy to the Robbs; but in view of its existence and the notice received the special covenants in said deed were inserted therein for the purpose of protecting the plaintiff in the event that the Robbs, or either of them, should have a greater right in said property than the mere right of occupancy of the surface during their lives; the plaintiff purchasing said tract of land for the coal thereunder.</p> <p>6. At No. 387, January Term, 1897, in the court of common pleas No. 2, of this county, the said Mary Robb and her husband filed a bill in equity against their son-in-law, W. H. Graham, with notice to the plaintiff company, praying that their deed to Graham should be construed as a mortgage. On hearing the bill was dismissed; Graham paying the attorneys’ fees in the proceedings. In the fourth paragraph of the plaintiff company’s answer in said suit appears the following:</p> <p>“But the notice which said plaintiff did give was that they were in possession of said land under the agreement hereinbefore referred to and attached to this answer, and the said defendant purchased said property subject to whatever rights said plaintiff might have under said agreement.”</p> <p>7. At No. 232, June Term, 1898, in the court of common pleas No. 1 of the county, the plaintiff company Sled its bill against William Robb and Mary, his wife, to restrain them from interfering with its mining of coal under said tract of land. This bill was dismissed on demurrer for want of jurisdiction, the parties being relegated to their action at law.</p> <p>8. At No. 729, August Term, 1904, in this court, the said Mary Robb brought suit against the defendant company and recovered a verdict on her claim as a life tenant of said land in the sum of $5,250 damages for coal mined by the plaintiff under this tract. This verdict was sustained by a divided court on appeal as reported in 216 Pa. 418.</p> <p>CONCLUSIONS OP LAW.</p> <p>1. The recovery of a judgment against the plaintiff and its payment in the sum of $5,250 in favor of Mary Robb, as set forth in the last finding of fact, constituted a breach of the covenant made by the defendant and his wife of the deed of December 27, 1895.</p> <p>2. The mortgage of December 27, 1895, given by the plaintiff to defendant, should be decreed satisfied, the defendant to pay the costs.</p> <p>The court entered a decree canceling the mortgage.</p> <p>Error assigned was the decree of the court.</p>

<p>Mechanic’s lien — Notice to owner by subcontractor — Contract—Acts of June 4, 1901, P. L. 431 and April 17, 1905, P. L. 172.</p> <p>1. When a subcontractor notifies the owner of his intention to file a mechanic’s lien, he must do so in substantial compliance with the Act of June 4,1901, P. L. 431, as amended by the act of April 17, 1905.</p> <p>2. Where a contract between a contractor and subcontractor is a written bid for a lump sum for an itemized list of articles without prices given for each item, a notice by the subcontractor to the owner is sufficient if the sworn statement accompanying it sets forth the written bid for the lump sum, and that such bid was accepted, and there is attached to the statement as a part thereof the itemized list of materials, but without any prices fixed for the various items.</p> <p>3. In such a case if the claim for a mechanic’s lien filed after such notice contains exactly the same matters set out in the sworn statement accompanying the notice, it will not be held defective because it does not set out the price of the particular materials furnished. The Act of April 17, 1905, P. L. 172, changed the provisions of the Act of June 4, 1901, P. L. 431, requiring a detailed statement of the prices to be attached to the claim.</p>

<p>Appeal, No. 138, Oct. T., 1909, by plaintiffs, from order of C. P. No. 2, Allegheny Co., July T., 1908, M. L. No. 14, making absolute rule to strike off mechanic’s lien in case of Joseph S. Schuchert et al., trading as Joseph S. Schuchert & Brothers, v. Rt. Rev. Regis Canevin, Bishop of the Diocese of Pittsburg, Trustee et al.</p>

<p>Negligence — Railroads—“Stop, look and listen” — Grade crossing— Pedestrian — Contributory negligence.</p> <p>One who is struck by a moving train that was plainly visible from the point he occupied when it became his duty to stop, look and listen, will be conclusively presumed to have gone negligently into an obvious danger. This rule applies to a pedestrian about to cross at grade four tracks of a railroad, where he had a clear view of the tracks for 2,148 feet in the direction from which the train came.</p>

<p>Principal and agent — Commissions for the sale of land — Evidence.</p> <p>In an action to recover commissions for the sale of land alleged to have been earned under an oral agreement with the defendant, the plaintiff will not be permitted to offer in evidence letters written to and by him relating to the land, prior to the verbal agreement, and when he himself had an option from the defendant to purchase the land.</p>

<p>Bankruptcy — Illegal preference — Judgment—Striking off judgment — • Jurisdiction — Practice, C. P.</p> <p>1. In a proceeding to strike off the lien of a judgment as an unlawful preference, state and federal courts have concurrent jurisdiction under the bankruptcy act, but when relief is sought in a state court and its jurisdiction is exercised, the rules of practice as established in the courts of that state prevail.</p> <p>2. The court of common pleas has no power to strike off a judgment or to strike off the lien of the judgment against real estate, because the judgment was entered within four months of the bankruptcy of the defendant, and at a time when the defendant is alleged to have been insolvent, when the fact of insolvency is denied. The court may, however, open the judgment so that a jury may pass upon the question of the insolvency of the defendant on the day that the judgment was entered.</p> <p>3. It is only when the fact upon which the court is asked to strike off a judgment regular on its face, is admitted or not questioned that it may be stricken off.</p> <p>4. An order declaring the lien of a judgment void and the real estate of the defendant not bound by it is in effect an order striking off the judgment.</p>

<p>Sewers — Wrongful construction — Trespass—Waiver of trespass— Viewers.</p> <p>Where a borough, in constructing a sewer, does not follow the line prescribed by the ordinance authorizing the construction, a property owner injured by the illegal act may maintain an action of trespass against the borough; but if such owner petitions for the appointment of viewers, he cannot in the proceedings before the viewers recover for the tortious acts of the borough arising from the unlawful entry.</p>

<p>Contract — Breach of contract — Damages—Profits.</p> <p>1. Profits arising from a subsequent contract though made on the faith of the original contract and capable of definite ascertainment, are not recoverable in an action for the breach of the original contract.</p> <p>2. For the breach of a contract damages may be recovered for loss of profits, the direct and immediate fruits of the contract itself and ascertainable with'reasonable certainty, when they are the natural result of such breach, or which, under the circumstances, the parties may have contemplated at the execution of the contract as the probable result of its breach; but damages for the loss of profits for the violation of a contract may not be recovered where they are uncertain, remote or speculative, or when they grow out of a subsequent collateral or subordinate undertaking which was entered into upon the faith of the principal contract.</p> <p>3. Where a railroad company contracts with a coal mining company to furnish cars at a particular point and fails to do so, the coal company in an action for the breach of the contract, is not entitled to recover profits that would have accrued on a contract subsequently made, to deliver a definite number of tons per day to a purchaser, if it appears that the railroad company had no knowledge, at the time it made its agreement to deliver cars, that the coal company contemplated the making of such a contract.</p>

<p>Appeal, No. 288, Jan. T., 1909, by defendant, from decree of C. P. Huntingdon Co., Feb. T., 1909, No. 153, awarding an injunction in case of The Juniata Water & Water Power Company v. Wilson Electric Company.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in awarding a preliminary injunction.</p>

<p>Appeal, No. 149, Oct. T., 1909, by plaintiff, from order of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 822, refusing to take off nonsuit in case of Joseph F. Joyce v. A. W. Black.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>At the trial when John P. Brennen, a witness for plaintiff, was on the stand, he was asked this question:</p> <p>“Q. I ask you whether or not, when you examined it that day you noticed that there was anything to hold it up in the way of fastening it to the front of this building?”</p> <p>Objected to by counsel for the defendant, Ihe witness having already been asked that question, which was objected to, and in the light of his testimony and what he could testify to, it was sustained. It assumes that there ought to have been some fastenings there.</p> <p>The Court: That is a proper assumption in one respect.</p> <p>Mr. Brennen: I am asking how it was fastened and what it was fastened with, if anything.</p> <p>Mr. Shaw: That is what he says he does not know.</p> <p>Objection sustained. Exception to plaintiff. [1]</p> <p>Daniel F. Crawford was asked this question:</p> <p>“Q. Without stating how it was fastened, state why you say you are able to tell how it was fastened, from having examined this place five months after the bracket fell down? A. In all things pertaining to building, I have gained considerable knowledge from tearing down old places, remodelling old fronts and making them new. They all have signs showing how it was constructed. In that way we know how to take our bearings. They generally leave some mark to work by. In that way I know what to expect when I start to tear out or build up.”</p> <p>Mr. Brennen: “Q. In other words, every building is built on a design, all designs leading into the same result? A. Yes, sir, we can tell what is an ornament that holds something— what is an ornament that was put there to hold something. They all show you how they were put on and how we are to get them off. Q. And does it show, also, how they were held in place? A. Yes, sir, I have taken similiar fronts to this out, and replaced them with modern fronts.”</p> <p>The Court: “ Q. Are you able to state from what you saw positively how that was fastened, or are you simply able to give an opinion how it was fastened? A. To give an opinion how it was fastened.”</p> <p>Objection sustained, and exception noted to plaintiff. [5]</p> <p>Mr. Crawford: “Q. I understood you to say yesterday that you had frequently seen this building and this front? A. Yes, sir. Q. And I now ask you if you can state, as a matter of fact, how that cornice or bracket was held on the front of that building? A. I can answer. Q. How was it held?”</p> <p>Objected to by counsel for defense, as the witness did not see the bracket or cornice until five months after the accident.</p> <p>“Q. Did you see it before this accident? A. I saw the building before this accident. Q. Well, the front of the building? A. Yes, sir.”</p> <p>The Court: The witness has testified that his first examination was five months afterwards, although he had seen it frequently before, but he never made any examination until five months after the accident. We will sustain the objection and note an exception to the plaintiff. [6]</p> <p>Mr. Crawford: “Q. From your examination of that building in November after this accident, could you not as well tell how that bracket was attached to that frame and held in place as if you had seen it half an hour afterwards? A. Yes, sir. Q. Or prior to its falling out? A. I could tell the manner and mode of construction and what they depended on to hold it there, by looking at it, because I know the way they do it. Q. How was this one done? Was it done in the same way that others of that kind are? ”</p> <p>Objected to by counsel for defense, as the same question. Objection sustained. [7]</p> <p>F. J. Osterling, an architect, was asked this question:</p> <p>“Q. When you worked on the building, did you also look at the bracket when you were fixing the building up? A. Yes, sir, looked at it in a general way. Q. Mr. Osterling, your office was close by this building, was it' not, for a number of years? A. Yes, sir, I had an office in the building adjoining this one at one time. Q. And from that will you state whether or not you had any knowledge from the fact that your office was close by, and that you have remodelled this very front, and your examination of it at that time, can you say how that bracket was held at that time? Can you tell, that is the question.”</p> <p>Mr. Shaw: I have no objection to the witness saying whether he can express an opinion or not, but I object, as incompetent and irrelevant, to the witness basing his opinion upon an examination made five or six months after the accident.</p> <p>The Court: He can answer yes or no to that question. Just answer it yes or no, or with any qualifications you may wish; but do not state your opinion until we come up to that question.</p> <p>“A. Yes, I can.”</p> <p>Mr. Brennen: “Q. Now, I ask you how it was held?”</p> <p>Objected to by counsel for defendant, as incompetent and irrelevant. Objection sustained. [8]</p> <p>Mr. Osterling: “ Q. Tell us how that bracket or cornice was held in place on the front of this building, over the door on the left-hand side as you go in the door going upstairs.</p> <p>Objected to by counsel for defendant, as incompetent and irrelevant. Objection sustained. [9]</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off.</p> <p>Errors assigned were (2) refusal to take off nonsuit; (3, 5-9) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 159, Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 410, on verdict for plaintiff in case of Thomas Bain v. Petroleum Iron Works Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>The facts appear by the opinion of the Supreme Court, and by the previous report of the case in 223 Pa. 96.</p> <p>Verdict and judgment for plaintiff for 12,370. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 108, Oct. T., 1909, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., April T., 1909, No. 1,021, dismissing bill in equity in case of Federal Street & Pleasant Valley Passenger Railway Company and Pittsburg Railways Company v. City of Pittsburg and John F. Steel, Treasurer, and L. R. Goshorn, Delinquent Tax Collector.</p> <p>Bill in equity for an injunction to restrain the city of Pitts-burg from collecting taxes on real estate of the plaintiffs situated in the city of Allegheny, and having erected thereon a power house. Before Shafer, J.</p> <p>A demurrer was filed to the bill and sustained by the court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 109, Oct. T., 1909, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 9, dismissing bill in equity in cas:e of Pittsburg, Allegheny & Manchester Traction Company and the Pittsburg' Railways Company v. City of Pittsburg, John F. Steel, Treasurer, and L. R. Goshorn, Delinquent Tax Collector.</p>

<p>Appeal, No. 8, Oct. T., 1910, by defendant, from decree of C. P. Clarion Co., May T., 1908, No. 2, on bill in equity in case of John K. Beatty v. Safe Deposit & Title Guaranty Company in its own right and as Trustee et al.</p> <p>Bill in equity for an account:</p> <p>The material portions of the defendant’s answer were as follows:</p> <p>3. In answer to the sixteenth paragraph of said bill, defendant says that there remained in its custody, as trustee, at the 'time of the service of the said bill upon it, the sum of $1,510.64, the net proceeds of the sale of lots, subject to deductions for fees and commissions to which it is entitled, and which said sum belongs to the said defendant, and the cestui que trustents, in proportion to their ownership in the lands described, and which was at that time the only fund in the hands of this defendant, as trustee, in which the plaintiff is interested, or out of which he is entitled to a distributive share.</p> <p>4. In answer to seventeenth paragraph of said bill, defendant says: “That after having paid the note of $6,000 and interest, therein mentioned, according to the terms and conditions of the declaration of trust designated as exhibit ‘A,’ it continued to act as trustee, and to sell and dispose of the real estate described in plaintiff’s bill, with the full knowledge, consent, agreement and approval of all of the cestui que trustents, and from time to time paid to them, and to each of them, their full shares of all of the profits arising from the sales of said land, in excess of said note and interest thereon, which said payments or distribution of funds was paid by this defendant and received by each of the cestui que trustents as settlements in full to the several dates of said payments, the last payment by it so made being on or about September 11, 1906, at which time it, the said defendant, had no knowledge or notice of any conveyance or assignment of the interest of Florence M. Bailey and J. D. Bailey, her husband, to the plaintiff in this case, nor any claim by the plaintiff that he owned an interest therein, and it denies that it was its duty to convey to the plaintiff, or any of the other cestui que trustents, the balance of the land remaining unsold until it was requested so to do, and it further avers that it has not-at any time been requested by the plaintiff to convey to him any interest in the said lands.”</p> <p>5. In answer to the eighteenth paragraph of said bill, this defendant says: “That it has in its possession the sum of $1,510.64, and that said sum, after deducting for commissions and fees due to this defendant, is the only sum in its hands, any portion of which is due or owing to plaintiff.”</p> <p>The court entered a decree directing an account.</p> <p>Error assigned was the decree of the court.</p>

<p>Practice, C. P. — Verdict—Special verdict — Contradictory verdict — ■ Setting aside verdict.</p> <p>1. It is the province of the jury to find the facts and return a verdict according to the facts so found, and when the jury makes a return in the nature of a special verdict containing contradictory findings it is not for the court to say that one part of the return is correct and another part not correct. The verdict as returned must stand or fall as it is made. It cannot be split up so that one part may stand and another part be ineffective.</p> <p>2. A verdict finding an amount stated for the plaintiff, and also finding that such amount will not be due until the happening of a certain event, is contradictory in its terms, and must be set aside. It cannot be sustained by striking out as surplusage the part relating to the time of payment.</p>

<p>Trusts and trustees — Equity—Accounting—Finding of fact — Responsive answer — Evidence.</p> <p>1. On a bill in equity to declare a trust and for an accounting where the court below finds on sufficient evidence that no trust in fact existed, a decree dismissing the bill will not be reversed in the absence of manifest error. The Act of June 7, 1907, P. L. 440, has no application to such a case.</p> <p>2. A responsive answer to a bill in equity must be overcome by the testimony of two credible witnesses, or one witness and such corroborating facts and circumstances as to amount to another witness.</p>

<p>Appeal, No. 102, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 378, on verdict for plaintiff in case of J. Rodgers McCreery v. National Surety Company.</p> <p>Assumpsit on a bond of suretyship. Before Cohen, J.</p> <p>From the record it appeared that the bond was given as surety for the performance of a building contract, the material portion of which was as follows:</p> <p>“Article V. Should the contractor at any time refuse or neglect to supply a sufficiency of properly skilled workmen, or of materials of the proper quality, or fail in any respect to prosecute the work with promptness and diligence, or fail in the performance of any of the agreements herein contained, such refusal, neglect or failure being certified by the architects, or either of them, the owner shall be at liberty, after three days’ written notice to the contractor, to provide any such labor or materials, and to deduct the cost thereof from any money then due or thereafter to become due to the contractor under this contract; and if the architects, or either of them, shall certify that such refusal, neglect or failure is sufficient ground for such action, the owner shall also be at liberty to terminate the employment of the contractor for said work and to enter upon the premises and take possession, for the purpose of completing the work included under this contract, of all materials, tools and appliances thereon, and to employ any other person or persons to finish the work, and to provide the materials therefor; and in case of such discontinuance of the employment of the contractor he shall not be entitled to receive any further payment under this contract until the said work shall be wholly finished, at which time, if the unpaid balance of the amount to be paid under this contract shall exceed the expense incurred by the owner in finishing the work such expense shall be paid by the owner to the contractor, but if such expense shall exceed such unpaid balance the contractor shall pay the difference to the owner. The expense incurred by the owner as herein provided, either for furnishing materials or for finishing the work, and any damage incurred through such default, shall be audited and certified by the architects, or either of them, whose certificate thereof shall be conclusive upon the parties.</p> <p>“Article VI. The contractor shall complete the whole of the work comprehended in this agreement on or before the 15th day of March, 1907. In event that said dwelling is not completed and ready for occupancy on said date the contractor shall forfeit and pay to the owner, as liquidated damages, the sum of ten dollars for each day’s delay thereafter for twenty days, and for each additional day thereafter the sum of five dollars.</p> <p>“ In case of default of the owner, of the architects, or of any other contractor employed by the owner upon the work, or by any damage caused by fire or other casualty for which the contractor is not responsible, or by general strikes or lockouts caused by acts of employees, then the time therein fixed for the completion of the work shall be extended for a period equivalent to'the time lost by reason of any or all causes aforesaid, which extended period shall be determined and fixed by the architects, or either of them, but no such allowance shall be made unless a claim therefor is presented in writing to.the architects within forty-eight hours of the occurrence of such delay."</p> <p>The bond contained the following provision:</p> <p>“3. If said principal shall in any manner default in the performance of any matter or thing in said contract specified to be by said principal performed, or in the event of said principal abandoning the work provided by said contract to be done by said principal, the obligee shall immediately so notify the company, and thereafter the company shall have the right at its option to assume and sub-let said contract and to proceed thereunder as if no default or abandonment had occurred; and if the company elect to assume said contract, all moneys agreed therein to be paid said principal and which at the time of the default be due the principal shall thereupon become payable to the company, and shall be paid to it, anything to the contrary in said contract notwithstanding.”</p> <p>The surety claimed that it had not been notified by the owner of the default of the contractor. There was no evidence that the owner had ever received any certificate of default from the architects.</p> <p>Verdict and judgment for plaintiff for 12,091.54. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 113, Oct. T., 1909, by defendants, from order of C. P. No. 3, Allegheny Co., May T., 1909, No. D. S. B. 427, discharging rule to open judgment in case of Fidelity Title & Trust Company, Executor under the will of William Yost, deceased, v. Reed B. Coyle and Arminta M. Coyle.</p> <p>Rule to open judgment.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Appeal, No. 137, Oct. T., 1909, by defendants, from order of C. P. No. 3, Allegheny Co., May T., 1909, No. 214, refusing to set aside sale of sheriff’s sale of real estate in case of Fidelity Title & Trust Company, Executor under the will of William Yost, deceased, v. Reed B. Coyle et al.</p> <p>Exceptions to sheriff’s sale of real estate.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order refusing to set aside sheriff’s sale of real estate.</p>

<p>Practice, C. P. — Rules of court — Set-off—Evidence—Notice—Building contract — Delay.</p> <p>1. A rule of court which requires a defendant who files a specification of set-off to notify the plaintiff thereof Within fifteen days after filing the same, applies to a claim by a defendant for damages resulting from the plaintiff’s delay in completing the building contract on which the suit was brought.</p> <p>Rules of court — Construction—Review.</p> <p>2. A court is the best exponent of its own rules, and an appellate court will not reverse the construction by a lower court of its own rules, unless such construction is manifestly erroneous and injurious.</p> <p>Contract — Building contract — Ambiguity—Duty of architect — Evidence.</p> <p>3. Where a building contract prepared by the owner’s architects has been revised, and the building has been erected according to the revised plans, and the work has been approved by the architects, the owner cannot in a suit against him to recover a balance due on the contract show that the new plans required less steel, and that the architects were not authorized to draw the plans in that way.</p>

<p>Contract — Compensation for sale of real estate — Case for jury.</p> <p>Where a plaintiff makes out a prima facie case, in substantial accord with the allegations of his statement of claim, he is entitled to go to the jury, and if a verdict and judgment goes for him, the defendant cannot request the appellate court to review the testimony and to determine from aP of it whether the judgment should stand.</p>

<p>Appeals, Nos. 127 and 128, Oct. T., 1909, by Anna Callery, from decree of O. C. Allegheny Co., Dec. T., 1908, No. 97, dismissing exceptions to adjudication in Estate of William V. Callery, deceased.</p> <p>Exceptions to adjudication.</p> <p>The auditing judge, Hawkins, P. J., filed the following adjudication :</p> <p>statement.</p> <p>The controversy in this case grows out of an alleged marriage of the decedent.</p> <p>The material features developed by the evidence are these:</p> <p>About midnight on October —■, 1903, three men picked up two girls standing on the sidewalk whom they had never seen before, in the East End, and drove them to a sporting house in the old city. All the members of the party, including the girls, had been drinking before, drank on their arrival at the sporting house, danced and sang in drunken style for an hour or two, when the girls were sent home in a cab, two of the men went to the street cars, and the third was not in a condition to leave the sporting house.</p> <p>The last mentioned was W. V. Callery, member of a wealthy and prominent family, and himself a man of affairs, and one of the girls, Annie Clinton, then recently divorced, appears as the present claimant. The acquaintance thus begun between those two was resumed a day or two afterwards, flowers and candies were sent from time to time, and intimacy grew apace.</p> <p>About two weeks after the first meeting Callery began, according to the claimant, to talk about getting married. “He asked me,” she testified, “to come and live with him as his wife. I told him I was divorced. Of course he was a Catholic and I was a Catholic, and he didn’t want to get married by a squire, a rabbi or preacher. He also stated that he had some business with his brother, J. D. Callery; after he would have a ceremony performed — he didn’t want his brother to know we were living as man and wife.”</p> <p>When he asked her to live with him as his wife she told him she “would if he would have a ceremony performed. He said he would have that done later; that he was under obligations to his brother, J. D. Callery, and after that was past he would have a ceremony performed; but he said it didn’t make a particle of difference; he said, you know thousands and thousands of people are married without a ceremony.’”</p> <p>The discussion was renewed again and again and continued two weeks, she insisting on a proper ceremony, and he that the ceremony should be later, and she finally agreed to live with him as he had proposed. The subject of a ceremony was renewed by her again after they began to live together, but he always postponed the matter. In pursuance of this alleged agreement Callery took her two or three nights a week to what she said he called a lodging house; but which she soon learned, if she had not known, was a house of assignation; and yet with that knowledge continued these visits until June, 1904. The purpose was, not to establish a home, but, to use claimant’s own expression, “to have relations” with each other. In the meantime he used his rooms at the Schenley hotel, or resorted to the house of Mrs. White, whom he “kept”; while this claimant continued at her mother’s residence. In June, 1904, claimant moved to a parlor which Callery had secured for her in the Colonial hotel; and at that hotel she remained, with the exception of two or three months while she was residing in a flat, until Mr. Callery died in September, 1906. While Mr. Callery made daily visits during this period he and she assumed and were known by the name of Mr. and Mrs. Phillips, she on several occasions introducing him as her “husband, Mr. Phillips,” to persons who came to the room; he acknowledged his paternity of the child born to him, and paid all the expenses of living there; yet he still kept his rooms at the Schenley, divided his nights between her and Mrs. White, never introduced her as his wife, nor used the words husband or wife in his conversations nor in the many notes and telegrams which he sent her. His place of registration continued in the Schenley district as before his acquaintance with her. On the other hand, this claimant repeatedly stated that her relations with Mr. Callery were illicit, was on visiting terms with Mrs. White, though knowing her illicit relations with Callery, and when Callery was dying at his brother’s she not only made no effort to assert the rights of a wife to be with him and care for him, but entered into negotiations for pecuniary settlement, which ended after his death in her signing, under the advice of her counsel, Mr. Dicken, a release in which the existence of the illicit relations was recited. True, she says that she was misled by her counsel into signing, and this is admitted by him; but there was afforded ample opportunity of informing herself of the contents and recalling the release before its delivery, and she failed to do so. And it is conclusive of her knowledge of the recital that on the delivery of the release she resumed her maiden name of Clinton. Mr. Callery’s relations never heard of any claim of marriage until he was on his deathbed.</p> <p>There is evidence that in the meantime she had relations with other men than Callery and visited restaurants without an escort late at/night.</p> <p>OPINION.</p> <p>Assuming that claimant and Callery came together in pursuance of an express contract, failure of fulfillment of its condition of a marriage ceremony rendered the contract nugatory: Gross’s Estate, 9 Pa. Dist. Rep. 76.</p> <p>Claimant took the risk of fulfillment, and could only find a remedy in the event of failure in the criminal court. The fact that she again and again importuned Callery to have a ceremony of marriage performed shows that she regarded this as the one thing needful, but the weight of the evidence negatives the existence of an express contract of marriage.</p> <p>The only direct evidence in support of its existence is that of claimant; and this is completely answered by her own attitude during the period covered by the controversy. The inception of her acquaintance with Callery in a “sporting house,” their visits to an assignation house knowing its character, continued long after the date of the alleged contract, her friendly relations with Mrs. White, her repeated admissions that she was Callery’s mistress, her importunities for the performance of a marriage ceremony, her negotiations and settlement on the basis of illicit relations, and her resumption of her maiden name after the settlement, utterly discredit her story.</p> <p>Resting the case on the theory of a common-law marriage, claimant fell far short of the legal measure of proof required. Cohabitation and reputation conjoined are the essential facts from which a presumption of common-law marriage arises.</p> <p>“The legal idea of cohabitation” (said Agnew, G. J., in Yardley’s Estate, 75 Pa. 207), “is that which carries with it a natural belief that it results from marriage only. To cohabit is to live or dwell together, to have the same habitation; so that where one lives and dwells, there does the other live and dwell always with him. The Scotch expression conveys the true idea perhaps better than our own, ‘the habit and repute’ of marriage. Thus when we see a man and woman constantly living together where one is dwelling, there the other constantly dwells with him, wo obtain the first idea or step in the presumption of marriage; and when we add to this that the parties so constantly living together are reputed to be man and wife, and so taken and received by all who know them both, we take the second thought or second step in the presumption of the fact of marriage. Marriage is the cause, these follow as the effect. When the full thought contained in these words, cohabitation and reputation of marriage, is embraced, we discover that an inconstant habitation and a divided reputation of marriage, carry with them no full belief of an antecedent marriage as the cause. The irregularity in these elements of evidence is at once a reason to think there is irregularity in the life itself which the parties lead, unless attended by independent facts which aid in the proof of marriage, without concomitant facts to prove marriage, such an irregular cohabitation and partial reputation of marriage availed nothing in the proof of marriage.”</p> <p>Tested by this principle it will be seen that the relations of claimant and Callery were lacking in “habit and reputation” of marriage. They were not “constantly living together.” The fact of Callery’s retention of his rooms at the Schenley and his division of his nights between this claimant and Mrs. White are ample evidence of this.</p> <p>There was a “repute” prevailing in the Colonial hotel of their marital relations as “Mr. and Mrs. Phillips,” but there was no pretense that this “repute” extended to Callery’s family and acquaintances until a short time before his death. Even if this view were doubtful, claimant’s admission of her illicit relations with him, her negotiations and settlement on this basis, and her resumption of her maiden name, would put it beyond question. There was nothing in the conduct of Callery inconsistent with this conclusion.</p> <p>“A man,” says Sharswood, J., in Bidding’s Appeal, 2 Brews. 202, “may live with his kept mistress in such a way as to create a kind of repute of marriage among some persons; he may even, to gratify her, allow himself to be held out or hold himself out to her friends and acquaintances as her husband; may be a constant visitor, sleep and often eat at her house; may recognize the fruit of the connection as Ms children and manifest affection and tenderness for them; yet the evidence falls far short of that wMch ought to satisfy the mind, that there was an actual agreement to form the lawful relation of husband and wife.”</p> <p>An acquaintance begun in a brothel requires more change than mere observance of the proprieties of a hotel to convert it into the sacred relation of marriage. Evidence of so radical a change must obviously be positive and unmistakable in character. The assumption of a fictitious name, irregular cohabitation and repute, restricted to a hotel, and the absence of voluntary use of the title wife, are the circumstances suggestive only of continuance of illicit relations. If the case were in doubt, the birth of issue would raise the presumption of legitimacy suggested by claimant’s counsel, but the facts leave no room for doubt.</p> <p>conclusion.</p> <p>The court therefore finds that there was neither an expressed nor an implied contract of marriage between this claimant and William V. Callery.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Appeal, No. 174, Oct. T., 1909, by plaintiff, from order of C. P. No. 1, Allegheny Co., March T., 1903, No. 814, arresting judgment in ease of Sterling Bronze Company v. Syria Improvement Association, Owner or Reputed Owner and Contractor.</p> <p>Scire facias sur mechanic's lien. Before Ford, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order arresting the judgment.</p>

<p>Appeal, No. 175, Oct. T., 1909, by Charles M. Clarke, from order of C. P. No. 2, Allegheny Co., April T., 1909, No. 242, dismissing exceptions to report of viewers In re Murtland Street Sewer.</p> <p>Exceptions to report of viewers.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was in confirming viewers’ report.</p>

<p>Municipal lien — Return of service — Amendment of return — Act of June 4, 1901, P. L. 364.</p> <p>1. A sheriff’s return may always be amended so as to conform to the truth, unless some new right has arisen in the meantime founded upon the defective return.</p> <p>2. Where a sheriff’s return of a service of a writ of scire facias sur municipal lien fails to set forth that he made inquiry “ of three persons residing nearest to the property as to the names and residences of the real owners,” when in fact such inquiry was made, the return may be amended even after a sheriff’s sale and deed to the purchaser, so as to conform to the facts.</p> <p>3. Where such an amendment has been allowed, and no appeal taken therefrom, the correctness of the allowance cannot be attacked in a collateral proceeding.</p>

<p>Appeal, No. 161, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 1, Allegheny Co., June T., 1904, No. 936, for defendant on case tried by the court without a jury in suit of American Exchange National Bank of New York v. Federal National Bank of Pittsburg.</p> <p>Assumpsit to determine the ownership of the proceeds of certain book accounts.</p> <p>The case was tried by Macfarlane, J., without a jury under the Act of April 22, 1874, P. L. 109.</p> <p>The. facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for plaintiff for 14,687.49, with interest from May 23, 1903.</p>

<p>Appeal, No. 183, Oct. T., 1909, by plaintiffs, from decree of C. P. No. 4, Allegheny Co., First Term, 1909, No. 797, on bill in equity in case of Nana M. Boak et al. v. New York Life Insurance Company, Claud E. Griffey et al.</p> <p>Bill in equity for an injunction and to reform an endowment life insurance policy.</p> <p>From the record it appeared that in 1888 Charles Donnelly, Sr., took out a twenty-year endowment policy on the life of his son Charles Donnelly, Jr.</p> <p>The ninth and tenth clauses of the bill were as follows:</p> <p>9. That there appears in the “provisions, requirements and benefits referred to in this policy,” a printed clause, which reads in part as follows: “At that date (to wit, October 30, 1908), if the insured is living and this policy is in force, the insured shall be entitled to one of the following benefits ” — naming four. Your orators are advised and believe that the word “insured” in reference to the one or ones entitled to benefits was allowed to remain in the printed form used by the insurance company through mutual mistake, and that the clause should read so as to confer benefits on the one or ones referred to in the written application, and in the prior portions of the policy, as the beneficiary or beneficiaries, to wit: “Roselia Donnelly, mother of the insured, or, in the event of her prior death, her children by Charles Donnelly, or their executors, administrators or assigns.” Your orators are advised and believe that, by the terms of the written application and of the parts of the policy which express the true intent of the parties when the policy was issued, all of the children of Roselia Donnelly by Charles Donnelly have a vested interest in the amount of insurance money payable by the terms of the policy, and an interest which cannot be defeated by any attempted selection or option by Charles Donnelly, Jr., for his sole benefit, to the exclusion of your orators.</p> <p>10. .That Charles Donnelly, Jr., has and is threatening to collect the total amount of the insurance money by legal means, or in divers other ways, for his sole benefit.</p> <p>The fourth prayer was as follows:</p> <p>4. To reform the clause in said policy referred to in the ninth paragraph of this bill, so as to read as follows: “At that date, if the insured is living and this policy is in force, the beneficiary or beneficiaries above named, to wit, Roselia Donnelly, or, in the event of her prior death, her children by Charles Donnelly, or their executors, administrators, or assigns, shall be entitled to one of the following benefits.”</p> <p>The court entered the following decree:</p> <p>And now, to wit, July 30, 1909, this cause came on to be heard at this term, and thereupon it is ordered, adjudged and decreed as follows:</p> <p>That the exceptions of plaintiffs to the decree nisi be and are hereby dismissed;</p> <p>That the policy of insurance set forth in the bill is not the result of any mistake, but correctly expresses the intention of the parties at the time it was applied for, executed and delivered.</p> <p>That the said Charles Donnelly, Jr., is entitled to the full amount of the proceeds of said policy deposited under the decree, heretofore made by the agreement of all parties in interest, to wit, the sum of $21,890.17, with accrued interest thereon since the deposit thereof, admitted by all parties to be the exact amount of money for which the said New York Life Insurance Company is liable after payment in full of the amount which was due to Claud E. Griffey, subject, however, to the payment of the premium of insurance hereinafter decreed, and that the sum so deposited with interest thereon, less the sum of $1,083.73, be paid to said Charles Donnelly, Jr.</p> <p>That out of said fund there shall be paid to the plaintiffs the sum of $984, being the twentieth and last premium upon said policy, which was paid out of their money, with interest thereon from October 30, 1907, $99.73, making $1,083.73.</p> <p>And it is further ordered, adjudged and decreed that plaintiffs pay one-half of the costs of their proceedings, and that said Charles Donnelly, Jr., pay the other half thereof.</p> <p>Error assigned was decree of the court.</p>

<p>Railroads — Crossing street — Municipal consent — Act of April 4, 1868, P. L. 62.</p> <p>1. When a municipality stands upon its right to resist the occupation or crossing of one of its streets by a railroad or street railway company, the condition of the street is not involved, for it is no concern of the invading company that the municipality may not properly maintain the highway for the use of the public.</p> <p>2. When a railroad or street railway company attempts to cross a public street in a city without municipal consent, it must point to a power in its charter to do so, and it is immaterial that it owns the land on both sides of the street.</p> <p>3. The extension of a leased road over a public street without municipal consent, where such consent is requisite under the charter of the leased road, cannot be effected by the lessee although the latter under its charter may have power to cross streets without obtaining the municipal consent.</p> <p>4. The doctrine of implied power is not to be stretched to permit that to be done by a corporation which the legislature has previously said shall not be done, even if without such implied power the grant of some particular franchise should be valueless.</p>

Appeal, No. 156, Oct. T., 1909, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 617, on bill in equity in case of The People’s National Bank of Pittsburg and William T. Wallace v. Liquid Carbonic Company. Bill in equity for an injunction. Miller, J., specially presiding, filed the following opinion: FINDINGS OF FACT. 1. The People’s National Bank, one of the plaintiffs, is a corporation under the laws of the United States.

Appeal, No. 158, Oct. T., 1909, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1906, No. 197, on verdict for plaintiff in case of George Valjago v. Carnegie Steel Company. Trespass to recover damages for personal injuries. Before Kennedy, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,542.50. Defendant appealed. Error assigned amongst others was in refusing binding instructions for defendant.

Appeal, No. 65, Oct. T., 1909, by-defendant, from judgment of C. P. No. 3, Allegheny Co., May Term, 1904, No. 373, on verdict for plaintiff in case of Harry Roessing v. Pittsburg Railways Company. Trespass to recover damages for an alleged malicious prosecution. Before Evans, J. The facts are stated in the opinion of the Supreme Court. Verdict for plaintiff for $2,500, upon which judgment was entered for $2,000 all above that amount having been remitted.

<p>Appeal, No. 121, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 3, Allegheny Co., Nov. T., 1905, No. 622, on verdict for defendant in case of Frederick Perret, trustee under the last will and testament of Frederick Perret, deceased, et al. v. Christian Lepper.</p> <p>Ejectment for land in the fourteenth ward of the city of Pittsburg. Before Kennedy, P. J.</p> <p>At the trial the following offer was made :</p> <p>Counsel for defendant also offer in evidence the record fi. fa. No. 172, January Term, 1905, being an execution on the judgment No. 844, January Term, 1905.</p> <p>Objected to on the part of the plaintiffs in so far as it relates to the execution of the writ and the sheriff’s return of the sale of the real'estate; on the ground, first, that it is incompetent and irrelevant; second, as being an unlawful sheriff’s sale of real estate, because there was not sufficient personal assets of decedent to pay the demands upon the decedent’s estate; third, as being an unlawful sheriff’s sale of real estate procured through the fraud and deceit of the plaintiffs in the judgment, who is the defendant in this ejectment, in concealing from the court the fact that the personal assets of decedent’s estate were insufficient to pay all just demand upon decedent’s estate, when if such fact had been made known the court would have been required by law to stay all proceedings upon the execution until the executor should make application to the orphans’ court for the sale of the real estate of decedent. It is further objected to unless followed by proof that the personal assets of decedent’s estate were sufficient to pay all just demands against decedent’s estate.</p> <p>Objection overruled.</p> <p>To which ruling of the court counsel for plaintiffs excepts.</p> <p>Exception allowed and bill sealed. [8]</p> <p>Plaintiffs presented this point:</p> <p>1. That the personal assets of decedent’s estate being insufficient to pay the just demands upon decedent’s estate the court of common pleas had no jurisdiction to proceed to a sheriff’s sale on the execution of the real estate of decedent, but the jurisdiction was in the orphans’ court to decree a sale of the real estate of decedent to be made by the executor, and a sale by the sheriff of the real estate of decedent was unlawful and void. Answer: Refused. [1]</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned, inter alia, were (1) refusal of plaintiffs’ points; (7) in giving binding instructions for defendant; (8) ruling on evidence, quoting the bill of exceptions.</p>

Appeal, No. 97, Oct. T., 1909, by-James McF. Carpenter and W. B. Secrist, executors of James M. Bell, deceased, from decree of O. C. Allegheny Co., Sept. T., .1908, No. 42, dismissing exceptions to adjudication in Estate of Thompson Bell, deceased. Exceptions to adjudication. The opinion of the Supreme Court states the case. Error assigned was in dismissing exceptions to adjudication.

<p>Appeal, No. 208, Oct. T., 1909, by Harmar D. Denny, Administrator d. b. n. c. t. a. of the estate of Thompson Bell, deceased, from decree of O. C. Allegheny Co., Sept. T., 1908, No. 42, dismissing exceptions to adjudication in Estate of Thompson Bell, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree of the court.</p>

<p>Appeals, Nos. 57 and 58, Oct. T., 1909, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1904, No. 177, on verdict for plaintiffs in case of Mary Shadowski by her next friend, Adam Shadowski, and Adam Shadowski in his own right v. Pittsburg Railways Company.</p> <p>Trespass to recover damages for personal injuries to a child. Before Swearingen, P. J.</p> <p>At the trial a witness for the plaintiff was asked this question: “Q. What remark did you make at that time?”</p> <p>Objected to by counsel for defendant as being incompetent, irrelevant and immaterial, and not part of the res gestse.</p> <p>The Court: The objection is overruled.</p> <p>To which ruling of the court counsel for defendant requests an exception.</p> <p>Exception allowed and bill sealed. [1]</p> <p>“A. I says, 'Look at that damn fool, he will run over that little girl up there.' That is what I said. He did run over her, too."</p> <p>Verdict and judgment for Mary Shadowski for $7,500 and for Adam Shadowski for $1,534. Defendant appealed.</p> <p>Error assigned amongst others was ruling on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 171, Oct. T., 1909, by plaintiffs, from judgment of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 770, for defendant on case stated in suit of Clara D. Kelly et al. v. The Pennsylvania Railroad Company.</p> <p>Case stated in ejectment for an undivided interest in land in the twenty-fourth ward of the city of Pittsburg.</p> <p>Ford, J., stated the facts to be as follows:.</p> <p>Plaintiffs and defendant company both claim under John McClurg, who, being seized of the land described in the writ, died testate, the controversy in this case arising out of the construction of his last will and testament. The will is dated May 13, 1854. The clause in the will which gives rise to the dispute is as follows:</p> <p>“Item — After my wife, Margaret Jane’s, death, I give and devise the real estate upon which I now reside and have given and devised to my wife during her natural life, to my son Thomas J. McClurg, my son Joseph M. McClurg, my son Washington McClurg and to John S. Hamilton, their heirs and assigns, forever, as follows, to-wit: To said Thomas J. McClurg the one undivided fourth of said farm, to Joseph McClurg the one undivided fourth of said farm; to Washington McClurg the one undivided fourth of said farm; to John S. Hamilton the one undivided fourth of said farm, on which I now reside, for the use and benefit of my son, William McClurg, his heirs, to be held in trust for the benefit of said William, so that the same shall be free from all debts and liabilities of the said William McClurg, and to permit the said William McClurg to possess and enjoy the usufruct and profits thereof — and the said Trustee is hereby authorized and empowered to sell and convey the undivided one-fourth part of said farm or premises, at the request of said William McClurg and to invest the proceeds of any such sale upon similar trusts in other lands, or to and for the payment of the interest thereof to the said William McClurg, his own receipts, as the said Trustee may deem such sale, investments and payments most expedient for the benefit of the said William McClurg. And in the event of the decease of any of my said sons, namely, Thomas J., Joseph or Washington McClurg, without lawful issue, the shares of said deceased shall be vested in the survivor or survivors of my said sons last named in equal shares, or their heirs and assigns. All the rest and residue of my estate, real, personal and mixed, not hereinbefore disposed of after paying my debts, legacies and funeral expenses — I give, devise and bequeath to my three last named sons, his or their heirs and assigns, share and share alike.”</p> <p>William McClurg, devisee, died April 8, 1890. The question to be determined is, What estate vested in William McClurg by the foregoing will? The plaintiffs claim, that by the terms of the will, a spendthrift trust was created in favor of William McClurg, and that upon his death, the real estate vested in the residuary legatees, viz., Thomas-J., Joseph and Washington McClurg, or their heirs — among whom are the plaintiffs. The defendant, that William McClurg, by the will took a legal or equitable fee. If he took a fee, plaintiffs claiming under the residuary clause have no title to the land in controversy.</p> <p>The court entered judgment for defendant on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 141, Oct. T., 1909, by John A. Hermann, Jr., Executor, from decree of O. O. Allegheny Co., March T., 1907, No. 106, dismissing exceptions to adjudication in Estate of John A. Hermann, deceased.</p> <p>Exceptions to adjudication. Before Over, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 104, Oct. T., 1909, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 803, on verdict for defendants in case of Lizzie McKinley v. Sarah E. Martin et al.</p> <p>Ejectment for land in the Fifth ward of the city of Pitts-burg. Before Davis, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendants.</p>

<p>Sheriff — Expiration of office — Right to sue bidders at sale — Sheriff’s sale — Defective title — Tender of deed.</p> <p>1. A sheriff whose term of office has expired has a right to maintain an action against a defaulting bidder at a sale held during his term of office to recover the difference between the amount of his bid and the amount realized at a subsequent sale of the property.</p> <p>2. A bidder at a sheriff’s sale cannot refuse to pay his bid and take the property, on the ground that the sale will convey no title. If he is entitled to relief he should apply to the court to have the sale set aside.</p> <p>3. It is not necessary for the sheriff to tender a deed to the purchaser in order to hold him to his bid.</p>

<p>Appeal, No. 136, Oct. T., 1909, by defendant, from judgment of C. P. Nó. 3, Allegheny Co., Feb. T., 1904, No. 91,' on verdict for plaintiff in case of Pauline M. (Handel) Jordan and W. P. Jordan, her husband, in right of said wife v. John A. Chambers.</p> <p>Ejectment for land in Jefferson township. Before Kennedy, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>[There was a severance until 1880, when Herman Handel, having bought the surface, purchased one-third of the coal from one of these parties that had purchased from Robb. He purchased the share of Mr. Keenan. It was conveyed first to Mr. Jack, who reconveyed it to Mrs. Keenan, and then it was bought by Mr. Handel some time in 1880. The purchase ■of the surface by him was about September 11, and he purchased the coal by deed of September 27, 1880. Then, I instruct you, there was a union of the surface and the coal, the title of the surface and the coal, and that Herman Handel, being in possession of the surface, after this purchase, Was also in possession of the coal, holding it for himself and for these two other shares, for whom he would in law be trustee. So there was a union, or merger, a coalescing, as it has been' called in the argument, of the title to the coal and the surface at the time Mr. Handel bought the surface first and the coal afterwards. Herman Handel held the surface entire, and one-third of the coal for himself, and two-thirds for these other two purchasers or their heirs.] [7]</p> <p>Plaintiff presented this point:</p> <p>2. If the jury find that Pauline Handel Jordan, and those under whom she claims, held peaceable, adverse, notorious, continuous and exclusive possession of the land in dispute, under a claim of right for a period of more than twenty-one years, then their verdict must be for the plaintiff. Answer: This point is affirmed; I so instructed you in my general charge. [9]</p> <p>Defendant presented these points:</p> <p>3. If from the evidence the jury find that Nancy Large had title under the deed from Mary Jane Drake, of date December 9, 1863, and had been married to John R. Large before that date, and remained his wife until his death in 1902, she was not required to make entry for thirty years after she got her deed, to wit, before 1893; and if they further find that the plaintiff has not shown title by adverse possession for thirty years continuously before the defendant entered in 1897, the plaintiff is not entitled to recover, and the verdict should be for the defendant. Answer: This point is affirmed. You will observe, however, gentlemen, in that connection that Nancy Large does not seem to have asserted her title until she made this lease in 1897, so that the thirty years would expire, as is stated in tfre point, in 1893. There was that action of ejectment, which I have explained to you, and which resulted in a nonsuit. [10]</p> <p>4. Even if the jury should find that on and prior to August 16, 1870, when Robert Robb made his deed for the coal underlying the land in dispute to Hay, Woods and Keenan, the said Robb held title to the land in dispute, surface and coal, under the will of his mother Jane Robb, as claimed, then his said deed for the underlying coal worked a severance of the coal from the surface, and the two estates never again coalesced, under the evidence, until the defendant acquired title by the sheriff’s deed in 1898; and this being so, and there being no evidence that either the plaintiff or. any of those under whom she held ever entered upon actual possession of the coal to mine and remove it, the adverse occupancy of the surface alone by herself, and by those under whom she claims, gave to the grantees of the coal no right or title by adverse .possession to the underlying coal. Answer: Refused. [11]</p> <p>5. Under the pleadings and evidence in this cause, the only plaintiff entitled to recover, if there can be any recovery at all against the defendant, is Pauline M. (Handel) Jordan; and, under the pleadings and evidence, in no event can said plaintiff recover more than the surface of the tract in dispute and an undivided one-third interest in the underlying coal; she being estopped by her abstract of title filed in this case from claiming more. Answer: Refused. [12] ■</p> <p>6. Under the pleadings and evidence the verdict should be for the defendant. Answer: Refused. [13]</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Errors assigned were (7, 9-13) above instructions, quoting them.</p>

<p>Negligence — Street railways — Passenger—Presumption of negligence.</p> <p>Where a passenger in a crowded summer car stands between two of the cross seats and against the guard rail of one side of the car, and by a sudden movement of the car the passenger’s head is thrown beyond the guard rail and is struck by a car on the other track, but there is no injury to the car in which the passenger is riding, no presumption of negligence on the part of the company arises from the mere happening of the accident. The burden is upon the plaintiff to prove negligence, and he may do so, in a way sufficient to carry the case to the jury, by showing that the car was improperly and unsafely run in passing over a curve, resulting in a sudden lurch or jerk which threw the passenger’s head beyond the guard rail at a time when the other car was passing.</p>

<p>Appeal, No. 196, Oct. T., 1909, by J. Henry Long, from decree of O. C. Allegheny Co,, Sept. T., 1906, No. 149, dismissing petition for an account in Estate of Margaretha Siegwarth, deceased.</p> <p>Petition for an account.</p> <p>From the record it appeared that the petitioner had purchased from William Siegwarth a three-quarters interest in his share of the estate of his mother, Margaretha Siegwarth, within five years from the latter's death. The portion of the will of Mrs. Siegwarth material to the issue is as follows:</p> <p>“In respect to the share, part or portion of my estate, given to my sons Philip Siegwarth and William Siegwarth, I direct that the same be held by my executor, hereinafter named in trust for my said sons Philip Siegwarth and William Siegwarth, the income and clear annual profit arising from the interest or share hereby given is to be paid to my said sons Philip. Siegwarth and William Siegwarth, but no part of the principal of said estate is to be given to my said sons Philip Siegwarth and William Siegwarth, for five years after my death, and then only when in the judgment of my executor, they shall have proven themselves to be entirely competent and qualified to take proper care of same, at which time the said trustee shall pay the same over to my said sons Philip Siegwarth and William Siegwarth, and in the event of the death of either of my said sons Philip or William Siegwarth, without issue, then their share or shares shall revert back to my estate, and shall go to and be divided among- my remaining heirs.”</p> <p>The court dismissed -the petition.</p> <p>Error assigned was the decree of the court.</p>

<p>Judgment — Collateral attack — Nonresponsive pleadings — Orphans’ court.</p> <p>1. A judgment is void and may be attacked collaterally where it is not responsive to .the issues tendered by the pleadings; but where the record is amended, or considered as amended by the parties so as to include other issues than those presented by the original pleadings, the court may determine the issues thus raised. In such case if the matter in controversy is litigated and the complaining party has been present or has been given an opportunity to be heard, the court has jurisdiction and a judgment is valid.</p> <p>2. The above rule applies to a decree of the orphans’ court in an audit of a deceased trustee’s estate awarding to the substituted trustee the corpus of the trust funds, and further directing that the future income should be paid, not to the cestui que trust as the will directed, but to the estate of the deceased trustee under an equitable assignment, where it appears that the claimant cestui que trust secured two continuances of the audit, that he admitted to the accountant that he had a claim against the estate, that he was personally in court at the audit, and that he was notified by the court through his counsel that the right to the income of the trust fund would be adjudicated.</p>

<p>Appeal, No. 201, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 32, on verdict for plaintiff in case of Roybert Bender v. Lee Vernella Bender.</p> <p>Ejectment for land in the nineteenth ward of the city of Pittsburg.</p> <p>Front the record it appeared that the will of Philip Bender was as follows:</p> <p>“ I the undersigned divide my property as follows:</p> <p>“ Should I die before my wife then all property shall go to my wife Catherine Bender nee Seibert, as long as she can and wants to administer it. After that it shall be divided as follows:</p> <p>“Lot No. 1 Beginning Mignonette and St. Clair Street, 30 feet front on Mignonette Street. Thence along the fence 69-| feet; thence along the fence to St. Clair Street, along St. Clair Street 69£ feet to point of beginning. House and lot to go to Till Dorotea Alexander nee Bender.</p> <p>“The other part of Lot No. 1 beginning at No. 1 on St. Clair Street, 30 feet along the fence to No. 2 Thence along the fence 30|- feet to a 10 feet alley, along the alley 30 feet to St. Clair Street, along St. Clair Street, 30& feet to point of beginning. House and Lot to go to Louise Huber nee Bender.</p> <p>“Lot No. 2 beginning at No. 1 30 feet front on Mignonette Street. Thence running 100 feet back to a ten feet alley along the alley 30 feet to Lot No. 1 Thence along No. 1 100 feet to point of beginning on Mignonette Street. House and lot to go to Henry Bender or his children.</p> <p>“Lot No. 3 Beginning at No. 2 30 feet front on Mignonette Street to Phillipp Menges line along Phillipp Menges line 100 feet to a 10 feet alley along the alley 30 feet to Line No. 2. Thence along No. 2 100 feet to point of beginning, Mignonette Street. House and lot to go to Phillipp Bender or his children.</p> <p>“Lot No. 4 Beginning at the 10 feet alley 20 feet on St. Clair Street to M. Rees Line along M. Rees line 90 feet to 30 feet street, along the street 20 feet to the 10 feet alley, along the alley 90 feet to a point of beginning St. Clair Street House and lot to go to Johannes Bender or his children.</p> <p>“The 10 feet alley remains private alley exclusive for the Bender property; should the street be opened then the front lots shall have the'same privilege to the alley as the 20 feet lot.</p> <p>“The two lots in Meek Gonickgels Plan on Lingkoln Avenue as described in deed shall go to Carl Frank Ernest.</p> <p>“Should I the undersigned die first, then my wife shall have the right to make her home in either of the houses. In case this paper should come into the hands of a stranger and I should survive my wife, then this document shall be null and void. Then I can dispose as I please.”</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant, and in refusing to enter judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 205, Oct. T., 1909, by plaintiffs, from order of C. P. No. 4, Allegheny Co., Third Term, 1907, No. 414, refusing to take off nonsuit in case of Harry Bing and R. C. Hieber, partners doing business as Bing & Hieber, now for use of R. C. Hieber v. George Schmitt, now in the hands of the Mount Washington Savings & Trust Company, Trustee in Bankruptcy, and A. L. Richmond, partners doing business as the Nixon Restaurant.</p> <p>Assumpsit for goods sold and delivered'. Before Swearingen, P. J. . ,</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

Appeal, No. 47, Oct. T., 1909, by defendants, from decree of C. P, No. 2, Allegheny Co., July T., 1908, No. 690, on bill in equity in case of Pennsylvania Water Company v. City of Pittsburg et al. Bill in equity for an injunction. Before Miller, J., specially presiding. The facts are stated in the opinion of the Supreme Court. Error assigned was decree awarding injunction.

<p>Appeal, No. 164, Oct. T., 1909, by defendant, from decree of C. P. No. 1, Allegheny Co., Sept. T., 1908, No. 616, on bill in equity in case of The People’s National Bank of Pittsburg and William T. Wallace v. Duquesne Reduction Company.</p>