Volume 227 — Pennsylvania State Reports

Oct. T., 1908, by the Union Dale Cemetery Company, from order of C. P. No. 2,' Allegheny Co., July T., 1907, No. 973, dismissing exceptions to viewers’ report in the Matter of Sewer on Marshall Avenue. Exceptions to report of viewers.

<p>Receivers — Receiver’s sale- — Bond—Resale.</p> <p>In an action upon a bond given to a receiver conditioned üpon the obligors bidding a certain price on a resale of property previously sold for an alleged inadequate price, an affidavit of defense is sufficient to prevent judgment which avers that at the second sale the receiver was notified to secure from the purchaser the hand money in accordance with the terms of the sale; that the receiver replied that he would take the chance of getting the money; and that bidders were present ready and willing to pay the amount specified in the bond.</p>

<p>Oct. T., 1909, by defendants, from decree of C. P. No. 2, Allegheny Co., July T., 1908, No. 691, on bill in equity in case of R. B. Mellon et al. v. City of Pittsburg et al.</p>

<p>Negligence — Evidence—Discrepancies in testimony of plaintiff — Case for jury.</p> <p>1. A judgment on a verdict for plaintiff in an accident ease will not bé reversed because of discrepancies in the testimony of the plaintiff, and of two of her witnesses, where it appears that even in such discrepant statements there was sufficient, if believed by the jury, to justify the finding that the cause of the injury was the defendant’s negligence.</p> <p>Evidence — Cross-examination—Answer to immaterial question — ■ Contradiction of witness.</p> <p>2. Where a witness on cross-examination has been asked an immaterial and irrelevant question, another witness cannot be called in rebuttal to contradict the reply given to such question.</p>

<p>Oct. T., 1909, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 333, on certificate for defendant in case of J. E. O’Donnell v. City of Pittsburg.</p> <p>Appeal from report of road jury. Before Kennedy, P. J.</p> <p>At the trial the court admitted under plaintiff’s objection</p> <p>and exception the offer of the report of viewers to show assessments and benefits accruing to plaintiff’s property.</p> <p>Certificate and judgment for defendant for $1,649.61. Plaintiff appealed.</p> <p>Error assigned was the admission of the report of the jury of view.</p>

<p>Negligence — Death — Statement — Amended statement — Change of cause of action — Statute of limitations — Pleading—Act of April 26, 1855, P. L. 309.</p> <p>1. Where at the trial of an action to recover for the death of plaintiff’s husband, every act of negligence charged in the original statement of claim is shown to be untrue and unfounded, the situation is not cured by an amended statement setting up an entirely different theory, charging a different kind of negligence based upon different relations of the parties, after the statute of limitations has become a bar. ■</p> <p>2. This rule is applicable where the original statement is based on the standard of care owing by a street railway company to a person, not an intending passenger, at a street crossing, while the amended statement is based upon the relation of common carrier and passenger, and the standard of care is the protection which an intending passenger is entitled to receive while getting on a street car.</p> <p>3. In an action to recover damages for death caused by the negligent act of another, the statute of limitations need not be specially pleaded.</p>

<p>Bailment — Pledge of stock — Antecedent debt — Innocent purchaser— Fraud.</p> <p>Where an owner of certificates of stock signs a blank transfer and power of attorney on the back of each certificate, and delivers them to a firm of brokers to be sold, and the brokers instead of selling them hand them over to a bank in substitution of collateral previously pledged for an antecedent debt of their own, the bank is entitled, upon the failure of the brokers, to hold the certificates as against the owner, on the ground that the giving up of the collateral previously pledged was a consideration for the pledge of the certificates, and the bank was therefore an innocent holder for value to the extent of such consideration given in exchange.</p>

<p>Corporations — Corporate mortgage — Trusts and trustee — Discretion of trustee — Retirement of bond — Sinking fund — Construction mortgage.</p> <p>1. A court of equity has jurisdiction to control the exercise of the discretion of the trustee of a corporate mortgage, where such discretion has been abused.</p> <p>2. Where a dispute has arisen between a corporation and the trustee of a mortgage made by the corporation, as to the method of retiring bonds under the sinking fund clause in the mortgage, a court of equity may assume jurisdiction to settle the dispute as an actual one, and in so doing it does not deal with a mere abstract proposition.</p> <p>3. Where a coal company’s mortgage provides that certain of the bonds secured thereby may be redeemed at a premium, and certain others, termed serial bonds may be redeemed at par at any interest paying date, and the trustee of the mortgage is authorized to use the sinking fund to purchase and retire one or more of the bonds without specifying the class of the bonds, the trustee is bound to redeem the serial bonds, at par if possible, before purchasing at a premium the long term bonds.</p>

<p>Oct. T., 1909, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Second Term, 1909, No. 560, dismissing bill in equity in case of Albert C. Munhall v. William P. Wiemann.</p> <p>Bill in equity for an injunction. Before Cohen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Bailment — Conditional sale — Contract.</p> <p>A writing signed by one person certified that the writer had hired from a corporation named certain machinery, and that he agreed to pay for the use of the machinery for twenty months $4,250, partly in real estate at a valuation, and partly in notes payable at intervals of two months. The writer further agreed to pay for all freight for the delivery and return of the machinery, to keep it in good order, and to keep it insured. It was also provided that in case of default in payments the corporation should be at liberty to remove the machinery. By a separate writing on the same page, the corporation agreed to sell all of its title to the machinery after all payments had been made, for the sum of $107.40. There was evidence that this $107.40 was for interest on deferred payments, although the agreement stipulated that the notes should be without interest. Held, that the agreement on its face was a bailment, and not a conditional sale.</p>

Oct. T., 1909, by defendant, from decree of C. P. Allegheny Co., April T., 1908, No. 1,067, on bill in equity in case of Harbison-Walker Refractories Company v. William A. Stanton. Bill in equity for an injunction. Error assigned was the decree of the court.

<p>Insurance — Fire, insurance — Conflict of evidence — Case for jury.</p> <p>In an action on a fire insurance policy where the loss is entire and where all the matters of fact alleged as a defense are directly contradicted by the testimony of the plaintiff, the case is for the jury.</p>

<p>Negligence — Railroads — Passenger — Station — Contributory negligence — Case for jury — Death.</p> <p>1. Where death results from an occurrence of which no one was a witness, the fact that the death was unwitnessed does not operate to protect one whose negligence can be shown from the general situation and circumstances to have been the operative cause. When these are such as to satisfy reasonable and well-balanced minds that the accident resulted from the negligence of the party charged, liability attaches.</p> <p>2. Where a passenger after alighting from a train on a dark night proceeds along a narrow unlighted walk, elevated above and close to the track, while the train from which he alighted was moving, and in some way falls between the wheels of one of the passing cars and is instantly killed, without anyone actually seeing the occurrence, the questions of negligence on the part of the railroad company and the deceased’s contributory negligence are for the jury.</p>

<p>Wills — Trusts and trustees — Accumulations—Illegal accumulations— Act of April 18, 1853, sec. 9, P. L. 503.</p> <p>A fund accumulated under testamentary directions, which are void by reason of the provisions of sec. 9 of the Act of April 18, 1853, P. L. 503, goes into the general residuary gift, if there is such a gift in the will, or in case of intestacy to the heir at law. The accumulations never go to the minor as such, but only to the minor when it appears that he is the person who would have been entitled thereto, either as residuary legatee or heir at law, if such accumulation had not been directed: Washington’s Estate, 75 Pa. 102; Stille’s Appeal, 4 W. N. C. 42, and Farnum’s Estate, 191 Pa. 75, overruled; and Weinmann’s Estate, 223 Pa. 508, followed.</p>

<p>Jan. T., 1909, by Lizzie N. Neff, from decree of O. C. Berks Co., May T., 1908, Ño. 22, overruling exceptions to adjudication in Estate of F. B. Nice.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of distribution.</p>

<p>Jan. T., 1908, by defendant, from decree of C. P. No. 4, Phila. Co., March T., 1907, No. 2,771, on bill in equity in case of Henry S. Weiser and Henry Hendricks v. George C. Freeman.</p> <p>Bill in equity for an injunction. Before Attdenried, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree awarding injunction.</p>

<p>Jan. T., 1909, by defendant, from judgment of O. & T. Phila. Co., March T., 1908, No. 68, on verdict of guilty of murder of the first degree in case of Commonwealth v. George A. Greene.</p> <p>Indictment for murder. Before Kinsey, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Error assigned among others, was (27) the portion of the charge quoted in the opinion of the Supreme Court.</p>

<p>Principal and surety — Guaranty—Contract—Direct liability.</p> <p>1. Where a railroad company enters into a written contract with an individual for the construction of its railroad, and thereafter the individual enters into a contract in writing with a construction company, with the consent of the railroad company, the terms of which are identical with the first contract, except as to consideration, and immediately after the signatures to the second contract the railroad company agreed in writing to “guarantee and become surety for the payment of the money mentioned in the within contract as the same becomes due and payable,” the railroad company is liable directly either as a principal or as a surety to the construction company for the moneys due it. Such an agreement can in no way be construed as a contract of guaranty on the part of the railroad company.</p> <p>Contract — Construction contract — Arbitration—Waiver.</p> <p>2. Where a railroad company and a construction company participate in an arbitration under an arbitration clause in a construction contract, and it appears that the proceeding is started by notice from the railroad company, that the investigation was exhaustive, that each side produced witnesses and cross-examined the opposing witnesses, it will be deemed as a matter of law that the railroad company waived an alleged previous final estimate made by its chief engineer, which estimate had been retained by the railroad company and never submitted to the construction company.</p> <p>3. Ordinarily the question of waiver is one of fact for the jury; but it is not always so. When the facts are undisputed it becomes a matter of legal inference. Waiver rests fundamentally on the doctrine of estoppel; but where the facts are ascertained, whether the doctrine applies is for the court to decide.</p> <p>Corporations — Foreign corporations — Registration—Act of April 22, 1874, P. L. 108, May 23, 1907, P. L. 205 — Res adjudicata.</p> <p>4. Where a foreign corporation which has not registered in Pennsylvania under the Act of April 22, 1874, P. L. 108, brings a suit in this state and judgment is entered against it, not on the merits, but on the sole ground of its failure to register, and thereafter and prior to the passage of the Act of May 23, 1907, P. L. 205, it registers, and then institutes a second suit against the same defendant, the second action is not barred by the prior judgment.</p> <p>5. When it can be gathered from the record that the merits of a controversy were not passed upon in the first action, but the determination proceeded upon some technical objection not affecting the plaintiff’s ultimate right to sue, the first judgment will constitute no bar to a second suit.</p>

<p>Jan. T., 1910, by defendant, from judgment of O. & T. Lancaster Co., April Sessions, 1909, No. 21, on verdict of guilty of murder of the ■first degree in case of Commonwealth v. Walter W. Aston.</p> <p>Indictment for murder. Before Hasslek, J.</p> <p>At the trial it appeared that the prisoners, Walter W. Aston, Benjamin Aston and Paul Fornwalt were indicted for the murder of Alfred Hallman on January 31, 1909. The evidence showed that the killing occurred while the prisoners were engaged in a burglary.</p> <p>The defendant presented the following point:</p> <p>10. In Pennsylvania, the crime of murder is distinguished into two grades, to wit, murder of the first degree and murder of the second degree. The presumption of murder never rises higher than murder in the second degree. There is no presumption of murder in the first degree, and, in order to allow a conviction of murder in the first degree, the commonwealth must prove, beyond a reasonable doubt, that the defendant has been guilty of murder in the first degree, and, in order to convict of murder in the first degree, there must be a deliberate intent on the part of the defendant to kill, and, also, he must have sufficient mind to comprehend the nature of the act at the time of the killing. Answer: We refuse this point for the reason that in all cases there need not be a deliberate intent on the part of the defendant to kill to make it a case of first degree murder. If the murder occurred in the commission or the attempt to commit robbery, arson, rape or burglary, or by poison it is murder in the first degree, regardless of whether the person charged with it has formed the intent to kill or not. [1]</p> <p>The court charged, inter alia, as follows:</p> <p>[And as the killing of Alfred Hallman occurred in the commission of an offense which he had premeditated and deliberated upon and formed a specific intent to commit, the intent of killing Alfred Hallman is not a vital question in this case.] [2]</p> <p>Defendant presented this point:</p> <p>8. Evidence of good character is material and substantive evidence in the cause, and may, of itself, reduce the crime from murder in the first degree to murder in the second degree. Answer: This point we affirm. We have already said that to you. We explain, however, that you must consider the evidence of character in connection with all the other testimony in the case. It does not raise a distinct issue. If after considering it all you are satisfied beyond a reasonable doubt that the defendant is guilty of either murder in the first or murder in the second degree, you will say so by your verdict, for the fact that a man has previously borne a good character, and that fact having been given due consideration by you, is no reason why he should go free if he has been proven guilty beyond a reasonable doubt. [3]</p> <p>The court charged, inter alia, as follows:</p> <p>[Evidence of reputation does not present a distinct issue. It is to be considered by you in connection with all the other evidence in the case in passing upon the general issue. If upon consideration of the evidence of good reputation in connection with the other evidence in the case you are satisfied beyond a reasonable doubt of the guilt of the defendant, it is your duty to convict. When a man notwithstanding the fact that he previously had a good reputation, and giving that fact due weight, has been clearly proven guilty, he is not to go free simply because of his former good reputation.] [4]</p> <p>Defendant presented these points:</p> <p>2. In order to convict the defendant of murder in the first degree, the jury must find from the evidence, beyond a reasonable doubt, that the defendant deliberately conceived the idea of killing the decedent; that he meditated upon the thought of taking his life, and then upon a deliberately formed determination proceeded to commit the act. Answer: Refused. [5]</p> <p>3. That in order to convict of murder in the first degree, the jury must find from the evidence in the case, beyond a reasonable doubt, that the mind of the defendant was not so affected by reason of drunkenness as to be incapable of such deliberate premeditation as is necessary to constitute murder in the first degree. Answer: Refused. [6]</p> <p>4. To constitute proof beyond a reasonable doubt, such as will justify a conviction of murder in the first degree, the evidence must produce an abiding conviction in the minds of the jury, to a moral certainty, not only that Walter W. Aston fired the shot that caused the death of Alfred Hallman, but that his mind was sufficiently clear and unbeclouded by drink to be able to form a willful, deliberate and premeditated design to kill, and that he did form such design. Answer: Refused. [7]</p> <p>5. That in order to form a willful, deliberate and premeditated design to kill, the jury must believe from the evidence in the cause, beyond a reasonable doubt, that the mind of Walter W. Aston was conscious of the real nature of its purpose, and of the act of killing the decedent, and was capable of resisting the impulse to perpetrate the crime. Answer: Refused. [8]</p> <p>6. If the jury do not find from the evidence in the cause, beyond a reasonable doubt, that there was a willful, deliberate and premeditated design on the part of Walter W. Aston to take the life of Alfred Hallman, then the grade of the offense cannot rise higher than murder in the second degree. Answer: Refused. [9]</p> <p>7. That if the jury find that the defendant was at the time of the killing, excited by any degree of drunkenness, which produced a state of mind unfavorable to deliberation and premeditation, although not so excessive as to render him incapable of forming a deliberate purpose, this condition of mind must be taken into consideration by them in determining whether the killing was done with deliberation and premeditation. Answer: Refused. [10]</p> <p>Errors assigned were (1-10) above instructions, quoting them.</p>

<p>Jan. T., 1910, by defendant, from judgment of O. & T. Lancaster Co., April Sessions, 1909, No. 21, on verdict of guilty of murder of the first degree in case of Commonwealth v. Benjamin Aston.</p> <p>Indictment for murder. Before Hassler, J.</p> <p>At the trial the court admitted under objection and exception a statement of Paul Fornwalt, a codefendant, made in the presence of the appellant while the latter was in custody. [3]</p> <p>The court also admitted under objection and exception the confession of the prisoner. [4]</p> <p>Defendant presented these points:</p> <p>4. The confession, of the defendant is not sufficient in itself to convict, unless there are such intrinsic, corroborative circumstances proved, as will when taken into connection with the confession, establish the prisoner’s guilt in the minds of the jury beyond a reasonable doubt. Answer: This point we refuse. If the corpus delicti, that is, the crime itself, that is, the actual killing of Alfred Hallman, is proven to your satisfaction, and you believe the confessions made by the defendant that he was one of the parties who took part in the robbery, or planned the robbery, that he was at the house, and there is no other testimony to show it, that of itself would be sufficient to convict the defendant, and that statement of his would need no corroboration to justify you in such conviction. [1]</p> <p>6. Under the law, the jury cannot convict Benjamin Aston upon the testimony or confession of Paul Fornwalt, an accomplice, unless such testimony or confession is corroborated in some material points. Answer: This point we refuse. It is not the law in Pennsylvania that a person cannot be convicted upon the uncorroborated testimony of an accomplice, though it is the duty of the court to caution the jury that such testimony should be taken with allowance. But the question does not arise in this case, as Paul Fornwalt has not testified at all, and what he said in the presence of the defendant at the police station on February 3, and which was testified to you by Mr. Eshleman, the stenographer, does little, if anything, to connect the defendant with the offense charged, and the defendant has affirmed that some at least of what was said in that statement was true. [2]</p> <p>The jury returned a verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them; (3, 4) rulings on evidence, quoting the bill of exceptions.</p>

Jan. T., 1909, by defendant, from judgment of O. & T. Crawford Co., Feb. T., 1909, No. 19, on verdict of guilty of murder of the first degree in case of Commonwealth' v. Alton V. Hoover. Indictment for murder. Before Prather, P. J. The opinion of the Supreme Court states the case. Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed. Error assigned amongst others was (31) refusal of new trial.

<p>Insurance — Fire insurance — Time for suit — Proofs of loss.</p> <p>Where a fire insurance company objects to proofs of loss for perfectly valid reasons, which are specifically stated, and the insured furnishes supplemental proofs to meet the objections, a suit is prematurely brought forty-nine days after the supplemental proofs have been furnished, where the policy provides that the loss shall not be payable until sixty days after satisfactory proofs have been received by the company.</p>

Jan. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1907, No. 4,628, on verdict for plaintiffs in case of Catharine Collins, by her next friend and father, Patrick Collins, and Patrick Collins in his own right v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Ralston, J. The facts are stated in the opinion of the Supreme Court.

<p>Wills — Accumulations—Act of April 18, 1853, P. L. 503.</p> <p>1. The Act of April 18, 1853, P. L. 503, permits of accumulations only during an existing minority, and for the benefit of the minor. To be lawful, the accumulated fund must be that of the minor, and must be paid to him upon arriving at the age of twenty-one. All other accumulations are void; and where there has been such direction, or where income accumulates because not disposed of, it goes to the one who would be entitled if no accumulation had occurred.</p> <p>Wills — Vested and contingent interest — Accumulations—Illegal accumulations — Act of April 18, 1853, P. L. 503 — Laches.</p> <p>2. Testator after having made various gifts and devises, including annuities to certain brothers and sisters named, directed as follows: “And upon the decease of my said brothers and sisters and payment of all sums as hereinbefore directed to be paid — I will and direct any residue of principal or income of my estate shall be divided and paid one-half part to my son-in-law W. he surviving, and the other half part thereof, or in the event of the said W. being then deceased, the whole of said residue to and among the then surviving children of my brother J., and my sisters [naming them], and the issue of any deceased child then living, their respective executors and administrators, share and share alike, such issue taking, however, only their parent’s share.” Held, (1) that the resulting accumulation of income was illegal; (2) that the gift to the residuary legatees was contingent; and (3) that the illegal accumulation of income should be distributed to the next of kin.</p> <p>3. Where an executor’s account is confirmed and distribution decreed to trustees, without any reference to a question of unlawful accumulations of income, such question is not to bo considered res adjudicata by the decree; nor will a son of the next of kin entitled to the illegal accumulations be barred by laches after thirty-two years, because his mother raised no question as to the accumulation at the audit of the executor’s account, and because he did not after her death raise the question himself by petition to the court, it appearing that the trustees filed no accounts for years, and even then gave no notice to the son of the next of kin.</p>

Jan. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1907, No. 93, on verdict for plaintiff in case of E. P. Burton & Company, to use of E. P. Burton Lumber Company, and E. P. Burton Lumber Company v. Frank Miller, trading as the Frank Miller Lumber Company. Assumpsit for goods sold and delivered.

<p>Trade-mark — Trade name — Publication — Unfair competition in business — Equity—Injunction.</p> <p>1. There are two classes of cases involving judicial interference with the use of names: first, where the intent is to get an unfair and fraudulent share of another’s business, and, second, where the effect of defendant’s action, irrespective of his intent, is to produce confusion in the public mind and consequent loss to the plaintiff.</p> <p>2. The publisher of a magazine named “Suburban Life” is entitled to an injunction to restrain another publisher from using the title “Philadelphia Suburban Life” for another magazine, where it appears that in addition to the similarity of names the magazine known as “ Philadelphia Suburban Life” bore a striking resemblance to the other in size, style, character of paper, illustrations, printed matter, and in general scheme of title-page, and that it was started later than the other, and circulated in practically the same territory.</p>

<p>Corporation — Contract—President—Ratification—Lease.</p> <p>A contract in writing for the purchase of real estate made by the president of a corporation in the company’s name, without authority, and contrary to the by-laws, and without the knowledge of the directors or other officers, is invalid; and no ratification of the contract can be inferred from the fact that the company entered into possession of the real estate under a lease which had no connection with the contract, and paid rent therefor, although the lease was for a year, and the contract to purchase provided for a settlement in a year.</p>

<p>Jan. T., 1909, by Anna Dimond Freeman, from decree of O. C. Phila. Co., Jan. Term, 1907, No. 48, dismissing exceptions to adjudication in Estate of Charles D. Freeman, deceased.</p> <p>Exceptions to adjudication.</p> <p>Anderson, J., the auditing judge, stated the facts to be as follows:</p> <p>Decedent died May 1, 1891, having first made and published his last will and testament, by which he bequeathed his estate to his wife for life (see Freeman’s Est., 16 Pa. Dist. Rep. 873), and appointed her executrix thereof, but made no provision as to what was to become of his estate after her death, and it therefore passes under the intestate laws, the widow having died June 26, 1906.</p> <p>Testator left surviving, his widow, S. Augusta Freeman, and five children: Isobel F. Frost, Marion F. Wills, Augusta F. Howes, Henry B. Freeman, who has since died, and Canfield Darwin Freeman. The question was raised at the audit as to whether his son Canfield Darwin Freeman survived him. Testimony of the daughters of the decedent was produced, showing that the son left the city about 1883, having been last heard of three or four years later. Against this testimony was produced a Supreme Court paper-book in the Estate of Henry G. Freeman (181 Pa. 405), which was a proceeding under the Price Act to authorize the trustee in the estate of Henry G. Freeman, father of the decedent, to execute a lease of certain real estate; which paper-book contained an affidavit by the widow and children of the present decedent (including those who now assert they knew nothing of the death of Canfield Darwin Freeman, and have heard of him three or four years after his departure), in which they stated that they were the only heirs of this decedent. The burden being upon the parties alleging the death of the son in the lifetime of the father, either to produce evidence of his death, or facts which show a presumption of death, and the evidence being that the son had been heard of in less than seven years prior to the death of the father, the auditing judge is unable to find either that the son was dead at the death of his father, or that a presumption had arisen to that effect. It will be necessary, therefore, to distribute the estate to the persons entitled under the intestate law; to wit, S. Augusta Freeman, widow (see Reed’s Est., 82 Pa. 428; Carmen’s Est., 11 W. N. C. 95; Grim’s App., 109 Pa. 391; Bell’s Est., 147 Pa. 389), the children now living and the estates of those deceased, including the son about whose death the controversy arose: Esterly’s App., 109 Pa. 222; Sherwood’s Est., 206 Pa. 465.</p> <p>On exceptions to the adjudication, Ashman, J., modified the conclusion of the auditing judge as to the distribution to the estate of the son last referred to in the adjudication as follows:</p> <p>“ Ordinarily the share of Darwin Freeman would be payable to an administrator of his estate. Under existing circumstances it will be distributed directly to those entitled as by way of intestacy. The distribution directed by the auditing judge is to this extent modified, and the share of Darwin is awarded to the estate of his mother, the widow of the testator, security being first required to protect the possible interest of the missing son or his legal representatives.</p> <p>“The exceptions are dismissed, and the adjudication as modified is confirmed.”</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Jan. T., 1909, by Henry Tatnall and J. Ernest Smith, Executors of the Estate of S. Augusta Freeman, deceased, from decree of O. C. Phila. Co., Jan. T., 1907, No. 48, dismissing exceptions to adjudication in estate of Charles D. Freeman, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that Charles D. Freeman died on May 1, 1891, leaving a will by which he gave to his wife, S. Augusta Freeman, all of his real and personal estate “to take and use the same and the net income thereof during all the term of her natural life,” without any gift over. The widow died on June 26, 1906. Administration d. b. n. c. t. a. was taken out on the estate of Charles D. Freeman after his widow’s death. The administratrices filed an account which was confirmed absolutely on January 16, 1909. Between the date of the death of the widow and the date of the audit, May 15, 1908, a large amount of income had accrued. The court distributed one-third of the principal to the executors of the widow, but awarded all of the income to the children of the decedent.</p> <p>Exceptions to the adjudication were dismissed by the court.</p> <p>Errors assigned were in dismissing exceptions to the adjudication.</p>

<p>Taxation — Corporations—Trust companies — Capital stock — Tax on capital stock — Constitutional law — Apportionment of tax— Statutes— Repeal — Acts of March 30, 1811, 5 Sm. L. 228; June 8, 1891, P. L. 229, and June 13, 1907, P. L. 640.</p> <p>1. The Act of June 13, 1907, P. L. 640, relating to the taxation of the capital stock of trust companies, and providing that the actual value of each share of stock shall bo determined by adding together the capital paid in, the surplus and undivided profits, and dividing the result by the whole number of shares outstanding, is a constitutional exercise of the taxing power of the state. The fact that the method of ascertaining the value of the shares does not take into account selling value on the stock exchange or in the open market is immaterial. The fact that the selling value is not included, is a legislative and not a judicial question.</p> <p>2. The Act of June 13, 1907, P. L. 640, is not retroactive in its operation.</p> <p>3. The Act of June 13, 1907, P. L. 640, which changed the method of determining the value of shares of stock issued by trust companies, was not intended by the legislature to release such corporations from liability to pay taxes which- had accrued at the time of the passage of that act under the Act of .Time 8, 1891, P. L. 229, although the latter act was repealed by the former, and the act of 1907 did not in express terms contain a saving clause reserving the right to collect such accrued taxes.</p> <p>4. While the general rule is that when a statute is repealed without a saving clause, it is to be considered as though it never existed except as to transactions past and closed, the rule, like any other legal principle of general application, must be understood and applied, if at all, so as to give effect to the legislative intention. It is not so much what the general rule of construction is as what did the legislature intend by repealing all acts or parts of acts inconsistent with the new law.</p> <p>6. A statute repealing former laws on the same subject does not abolish all rights and remedies under the repealed acts, if the legislative intent not to abolish them appears. This rule especially applies to acts which provide for the assessment and collection of annual taxes.</p> <p>6. The Act of March 30, 1811, 5 Sm. L. 228, was in no way affected by the Acts of June 8, 1891, P. L. 229, and June 13, 1907, P. L. 640, and therefore the remedy provided by that act for the settlement and collection of taxes on the stock of trust companies was operative as to all such taxes as had accrued before the Act of June 13,1907, P. L. 640, became operative.</p> <p>7. It is competent for the taxing authorities of the commonwealth to apportion and assess a tax on the capital stock of trust companies for a period from the first Monday of November, 1906, to June 20, 1907, when the Act of June 13,1907, became operative.</p> <p>8. It is within the power of the accounting officers of the commonwealth in the first instance, or of the court on appeal in a proper case, to apportion state taxes on capital stock according to the time the stock is outstanding, or to determine the amount of tax due for that portion of the year for which taxes are claimed.</p>

<p>Interest — Contract—Custom- —Surety company.</p> <p>Where a surety company requires as a condition for a bond guaranteeing the completion of a building operation, that a certain sum shall be deposited with it to be paid out by it to the builders on the certificate of the architect as the work progressed, and there is nothing in the agreement relating to interest, and there is no evidence of a custom to pay interest on deposits of the kind, the surety company will not be liable for interest on the deposit.</p>

<p>Master and servant — Wrongful discharge — Disobedience—Intoxication.</p> <p>1. Whether a master has waived a breach of contract by his servant by retaining him in service after knowledge of such breach is a question of fact. Prima facie such retention is a waiver and condonation is presumed; but if there are circumstances shown that tend to establish a reasonable and proper reason for the delay in discharging it is for the jury to say whether in fact the breach was condoned.</p> <p>2. Where an employee is guilty of acts of disobedience and of being somewhat under the influence of liquor, but the employer continues him in his employment for a year and a half after the last disobedience of orders and for nearly two years from the time of the alleged intoxication, the employer will be presumed to have condoned the offenses and cannot allege them as grounds for the discharge of the employee.</p> <p>3. Where an employee uses some of his own time and the time of his employer’s other workmen in helping for a brief time another contractor engaged in working on the same building as the employer and his men, and it appears that the employer made no objection to such act of the employee until over a month later, a finding by a referee that such delay was a waiver of the right to discharge the employee, will not be reversed, where there is sufficient evidence to sustain the finding and there is no manifest error.</p>

<p>Principal and agent — Real estate broker — Agreement of sale — Evidence.</p> <p>1. In an action against a real estate broker to recover secret profits made on a sale of land negotiated by the defendant, the agreement of sale is admissible in evidence, although not in agreement with the averments in plaintiff’s statement of claim to show the fact of the sale and the terms upon which it was made.</p> <p>Appeals — Assignments of error — Charge—Exceptions.</p> <p>2. An assignment of error to the charge of the court will not be considered where it appears that no exception was taken to the charge at the trial.</p> <p>Practice, C. P. — Evidence—Pleading.</p> <p>3. At the trial of an action of assumpsit the pleadings in a prior equity suit between the same parties are admissible as admissions to contradict their evidence in the case on trial, or to affect their credibility; but they are not to be taken as estopping the parties against whom they are offered, from taking a different position in the case on the law side of the court.</p> <p>Appeals — Assignments of error — Improper assignment.</p> <p>4. An assignment of error will not be considered, which does not point out any error committed by the court below, is not based on any exception, and is an attempt to raise in the appellate court a question not raised or considered in the court below.</p>

<p>Jan. T., 1909, by plaintiff, .from judgment of C. P. No. 1, Phila. Co., June T., 1909, No. 804, overruling demurrer, to return to writ of alternative mandamus in case of William I. Underwood v. J. Howard Gendell, City Solicitor of the City of Philadelphia.</p> <p>Petition for mandamus.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering judgment for defendant on the demurrer.</p>

<p>Contract — Building operation — Trusts and trustees.</p> <p>Where an owner of a building operation agrees that one of the contractors shall have an equity in certain houses, and a trust company issues a policy insuring the completion of the buildings free from liens, taking as counter indemnity the bond of a person to whom a blanket mortgage is given for his protection on the whole property, and thereafter the properties are all deeded in trust to a clerk of the trust company to convey the equities to the contractor and to protect the holder of the blanket mortgage, and subsequently the contractor releases the equities on the express stipulation that out of the proceeds of a contemplated sale a specified sum should be set apart for him, the trust company cannot disregard such stipulation on the ground that the holder of the blanket mortgage had directed that the proceeds should be paid out to the various mechanics and material men connected with the operation and is liable to the contractor in an action brought by him to recover the sum which he had stipulated should be set apart.</p>

<p>Brokers — Real estate brokers — License tax — Failure to pay tax — Acts of May 27, 1841, P: L. 396, April 10, 1849, P. L. 570, May 15, 1850, P. L 772, June 14,1901, P. L. 565, and April 14,1905, P. L. 161.</p> <p>1. The payment of a tax and the securing of a licence' is a condition precedent to the lawful transaction of business by a real estate broker.</p> <p>2. A real estate broker who has been.regularly assessed a license tax,, cannot recover a commission fixed by specific contract for the sale of-land when the sale takes place in June and the tax is not paid or the license issued until August of the same year. Subsequent compliance with the law will not cure the illegality of previous transactions. '</p> <p>3. The amount of the license tax to be paid by a real estate broket is to be ascertained and assessed on the Volume of business transacted by the broker during the preceding calendar year. .</p>

<p>Set-off — Mortgage—Damages—Evidence—Case for jury.</p> <p>Where an owner of coal grants it under a usual mining lease to another, and the lessee as a part of the consideration agrees to make certain improvements costing an amount specified, or to pay the amount to the lessor, but the improvement is not made, and the amount stipulated is not paid, and subsequently the lessor repurchases the coal from the lessee for an amount stated, giving a mortgage for a portion of the purchase money, the lessor in an action on the mortgage may show as a set-off that at the time the mortgage was given it was agreed the amount stipulated should be set off on the deferred payment; but if such testimony is contradicted directly and circumstances are shown which tend to establish its improbability, the case is for the jury, and it is reversible error for the trial judge to peremptorily direct that the jury should allow the set-off.</p>

<p>Mortgage — Costs—Appeal—Reversal of judgment.</p> <p>Where on a trial of a scire facias sur mortgage the plaintiff recovers less than the amount claimed, and only the amount tendered, and the judgment is reversed on appeal by the plaintiff, the defendant on an appeal from the same judgment cannot have the question considered as to his liability for interest, costs and attorney’s commissions. This liability depends on the verdict on the retrial of the case.</p>

<p>Jan. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1899, No. 170, sustaining exceptions to referee’s report in case of The Chestnut Street Trust & Saving Fund Company, to the use of Richard Y. Cook and George H. Earle, Jr., Assignees for the benefit of the creditors of The Chestnut Street Trust & Saving Fund Company, v. Record Publishing Company.</p> <p>Assumpsit on a promissory note. ■</p> <p>The case was referred to Dimner Beeber, Esq., as referee.</p> <p>The referee reported in favor of the plaintiffs for the full amount of the claim.</p> <p>Exceptions to report of the referee were sustained by the court in an opinion by Wiltbank, J., and judgment was entered for the defendant.</p> <p>Errors assigned were in dismissing exceptions to report of referee and in entering judgment for defendant.</p>

<p>Jan. T., 1909, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1906, No. 2,556, for defendant non obstante veredicto in case of Camden & Atlantic Telephone Company v. United States Casualty Company.</p> <p>Assumpsit on a policy of indemnity. Before Bregy, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The jury returned a verdict for plaintiff for $5,937.96. 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>Bailment — Lease of cars — Rental—Repairs—Covenant.</p> <p>1. A lease of cars was for one year with a privilege to the lessees to cancel at the expiration of four months by giving notice. The rental was $5.00 per car per day. The cars were to be returned to the lessors at the expiration of the lease in as good condition as when received, “ ordinary wear and tear in the service for which said cars are leased, excepted.” Other repairs and replacements were to be made by the lessees. The lessees exercised their option to terminate the lease at the end of four months, and notified the lessors to that effect, stating that the cars would be delivered on a certain day “when rental of same will cease.” The lessors insisted on certain repairs being made, and the lessees made the repairs, all of the cars remaining in their possession in the meantime. In an action to recover rentals for the cars after the date of the tender under a covenant of the lease whereby rentals were to be paid for detention of the cars after the termination of the lease the trial judge charged that if the repairs were merely those made necessary from ordinary wear and tear, the lessees although having made the repairs by mistake would not be liable for the rental. There was evidence that the defects were merely from ordinary wear and tear. Held, that a verdict and judgment for defendants should be sustained.</p> <p>2. It is a rule of universal application that in construing a. contract each and every part of it must be taken into consideration and given effect if possible, and that the intention of the parties must be ascertained from the entire instrument. Every sentence and clause in the contract must be considered in arriving at the thought or intention of the parties in making the agreement.</p> <p>3. In the above case a check was given for rentals due prior to the notice. On its face it was said that it was in full payment of the contract, giving date of contract. This check was given eleven days and appropriated sixteen days after the expiration of the term and ten days after it was agreed the replacements and repairs should be made, and after two of the cars had been received by the lessors for which rentals were sought to be recovered. Held, that the check was, in the absence of any explanation by the lessors, evidence tending to show an admission that all the rentals accruing under the contract were paid, including those in suit.</p>

<p>Negligence — Public charity — Hospital—Exemption from suit for damages for tort of servant.</p> <p>1. A purely public charity cannot be made liable for the tort of its servants.</p> <p>2. A corporation which has erected a hospital out of charitable bequests, and maintains it from charitable donations, and admits every person to its care, irrespective of religious faith or ability to pay, is a purely public charity, and not liable for personal injuries caused by the negligence of a nurse in the hospital, and it is immaterial that the person injured was a pay patient, and that one-third of the hospital’s space was used for the care of pay patients; and it is also immaterial that the person injured in a suit against the hospital has filed a paper disclaiming any right of execution against any fund held for charitable uses and all income other than that received from pay patients.</p>

<p>Foreign attachment — Bankruptcy—Discharge—Principal and surety— Special verdict. ■</p> <p>1. Where a foreign attachment is issued and served more than four months prior to. .the filing of a petition in involuntary bankruptcy against the defendant and the latter gives a bond with surety to dissolve the attachment, the subsequent discharge of the defendant in bankruptcy will not prevent'the entering of a special judgment in the attachment proceedings against the defendant for the sole purpose of fixing the liability of the surety on the bond given to dissolve’such attachment. In such a- case the discharge of the defendant .in bankruptcy does not exonerate the surety in the attachment proceedings. •</p> <p>2. Where, in such a case, the lower .court enters judgment for the defendant, the appellate court in reversing the judgment will direct that the record be remitted to the court below with directions to enter a special judgment against the defendant for the purpose of fixing the liability of the surety and with a perpetual stay of execution.</p>

<p>Jan. T., 1909, by Mack Latz, from decree of O. C. Phila. Co., April T., 1909, No. 102, dismissing exceptions to adjudication in Estate of Solomon Blumenthal, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Street railways — Passenger—Ejection of passenger.</p> <p>1. On the trial of an action by a passenger against a street railway company for an alleged wrongful and violent ejectment from a street car, it is reversible error for the court to charge as follows: “If you believe a man was so cruel, so lowbred, brutal and criminal as to do that — that, if justice had been vindicated upon those facts at the time, he would not have been now half through the service of a sentence in the penitentiary or the county jail at the date of this trial — if, as I may say, you believed that and found a verdict accordingly, there would be no limitation to your damages as against the defendant under such circumstances. Resentment would inflict any vindication, but, unfortunately, in a way, the limitations of liability are confined here, in the court’s judgment, to that which is done by one of the employees of the defendant, within the scope, as the law puts it, of his authority, within the purpose for which he w'as hired by the company, and the company cannot be held responsible for the passions of men or for the malicious actions of unreliable characters.”</p> <p>2. The trial judge may express his views on the evidence in a proper and dispassionate manner so long as he leaves the jury entirely free to consider the evidence and determine the facts. He may not, however, by the use of violent and impassioned language discuss the parties, the witnesses, or the evidence in such manner as to prevent a calm and impartial consideration of the case by the jury. A litigant has a right to a trial by a fair and impartial jury whose consideration of his cause is not influenced by any language of the court which would create resentment or prejudice against him.</p> <p>3. In a case against a street railway company to recover for personal injuries it is improper for the court to refer in its charge to the general character and nationality of the plaintiff, where no question is raised by the pleadings as to character and nationality.</p>

<p>Jan. T., 1909, by defendant, from judgment of O. P. No. 3, Phila. Co., March T., 1904, No. 3,362, on verdict for plaintiff in case of Ella P. Buck-man v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Moschzisker; J.</p> <p>At the trial the jury returned a verdict of $15,450, upon which judgment was entered for $15,000, all above that sum having been remitted. Defendant appealed.</p> <p>Error assigned was the admission of the plaintiff’s testimony quoted in the opinion of the Supreme Court.</p>

<p>Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 5,000, on verdict for plaintiff in case of Augustus Marfilues v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Kinsey, J.</p> <p>The circumstances of the accident are set forth in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $10,650. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment for defendant non obstante veredicto.</p>

Jan. T., 1909, by Emma Gertrude Rumsey and Anna G. Rumsey, from decree of O. C. Phila. Co., Jan. T., 1903, No. 575, dismissing exceptions to adjudication in Estate of Israel Michener, deceased: Exceptions to adjudication of second account of executors.

<p>Negligence — Railroads—Master and servant — Fellow servant — Act of April 4, 1868, P. L. 58.</p> <p>In an action against a railroad company to recover damages for personal injuries, where it appears that the defendant company was rightfully using the tracks of plaintiff’s employer, another railroad company, the plaintiff is not a quasi employee of the defendant company within the contemplation of the Act of April 4, 1868, P. L. 58.</p>

<p>Negligence — Street railways — Bridge—Contributory negligence.</p> <p>In an action against a street railway company to recover damages for personal injuries, a nonsuit is properly entered where it appears that the plaintiff who was injured in crossing a bridge over which the defendant ran two tracks, instead of using a safe sidewalk on one side of the bridge, walked along a narrow converging path on the other side of the bridge between the outer track and bridge rail, that the night was dark; that the car was lighted brilliantly within with headlights in front; that the region was suburban; and that the car was running rapidly with no gong sounding, there being no crossing near, and the track in front clear.</p>

<p>Jan. T., 1909, by plaintiff, from decree of C. P. No. 4, Phila. Co.., June T., 1896, No. 543, dismissing petition for rehearing in case of John Quincy Adams v. George L. Hubbard et al., surviving partners of the firm now or late trading as George K. Hubbard and Company, and Dilworth P. Hibberd Esq., Administrator d. b. n. of the Estate of George K. Hubbard, deceased, substituted in place of George L. Hubbard, removed as administrator.</p> <p>Petition for rehearing.</p> <p>Error assigned was decree dismissing the petition.</p>

<p>Jan. T., 1909, by plaintiff, from order of C. P. No. 2, Phila. Co., March T., 1906, No. 1,327, refusing to take off nonsuit in case of John C. Schienle v. Charles A. Eckels.</p> <p>Trespass by tenant against a landlord for an alleged wrongful eviction.</p> <p>At the trial it appeared that the plaintiff occupied two rooms and a bath in a residence in the city of Philadelphia. He was in possession under a written lease at rental of 116.00 per month payable in advance. The plaintiff showed that he had paid his rent in advance for the month of December, 1905, and that on the thirteenth day of that month the defendant had evicted him by cutting off heat and light, and making such alterations in the building that the plaintiff was forced to remove from the premises.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Jan. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1905, No. 4,194, on verdict for plaintiff in case of Columbia Avenue Trust Company v. Clarence P. King.</p> <p>Assumpsit on a bond of suretyship for rent. Before Barratt, J.</p> <p>At the trial it appeared that defendant signed a bond as surety for the rent of a hotel at Como, New Jersey. Defendant testified that he signed the bond on the understanding that it was also to be signed by another bondsman, whose name had been given to him, before the bond should be delivered to the plaintiff. There was nothing on the face of the bond to indicate that the signature was conditional. The bond was delivered to the plaintiff without the other signature having been secured.'</p> <p>Frank H. Williams, a witness for defendant, testified as to the delivery of the bond as follows:</p> <p>“ Q. Doctor, you say at the time you presented the bond for signature to Mr. King, this conversation occurred. Was it at the time of the signature? A. It was at the time of the signature. He said, ‘There are three names in this bond, and I sign this bond with the understanding that all three names are to be put upon it.’ Q. Did you make any reply? A. I said, ‘ Of course, that is to be done, as Mr. Potts has agreed to sign it, and have no doubt it will be done.’ I then took the bond to the trust company and gave it to Mr. Cuming. Q. What conversation occurred between you and Mr. Cuming at that time? A. He had known previously what the bond was to be, and 1 assured him Mr. Potts was to sign it. Made him understand Mr. King signed it under these conditions, and that Mr. Potts was to sign the bond. Q. Did you, or did you not, tell him Mr. King’s signature was conditional upon the rest signing? A. Now, as I say, it has been seven years since then, but am very sure I made him remember that point; do not remember the words used, but am sure Mr. Cuming and I both understood that point, that Mr. King’s liability depended upon the signature of the other names mentioned in the bond. Q. I understand, Dr. Williams, that there is no doubt in your mind that you gave Mr. Cuming to understand that Mr. King’s signature to the bond was conditional upon obtaining the other signatures? A. I certainly did. Q. I mean at the time? A. I did not say right at the time. As 1 say, it has been seven years ago when in Mr. Cuming’s office we talked this matter over and I do not remember whether I sent him the bond or took it to him; that is the reason I say I do not remember whether I handed it to him or not. He sent for me, or I went to see him, I do not remember which, and we talked the matter over, but Mr. King said he did not want to be held on the bond without the other signature, and I said I would get it just as soon as I could, that would be in two or three days.”</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $3,486.67. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Jan. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1902, No. 2,847, refusing to take off nonsuit in case of James H. Lay-ton v..Union Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Staake, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Jan. T., 1909, by defendant, from judgment-of C.- P. No. 4, Phila. Co., March T., 1907, No! 4,205, on verdict for plaintiff in case of Fowler Waste Manufacturing Company v. Otto Gas Engine Works.'</p> <p>Assumpsit for breach of warranty. Before Willson, P. J.</p> <p>At the trial it appeared that in 1903, the defendant sold to the plaintiff a gas engine for $5,350. The plaintiff paid the whole of the purchase money, and kept and used the machine for two years. The present action was brought for the breach of a warranty in the sale of the engine.</p> <p>The defendant presented this point:</p> <p>4. That the plaintiff in the statement of claim filed in this case having made no claim as an item of damage for the difference in the value of the engine and producer which were to be delivered, and the value of the engine and producer actually delivered, it cannot recover such difference even if you should find that the engine and producer delivered were not of the value.of the engine and producer contracted for. Answer: I decline that point. [5]</p> <p>Plaintiff’s counsel proposed to send a statement out with the jury.</p> <p>Mr. Carr: I object to the statement being sent out by plaintiff’s counsel. 1 think the jury should make the calculation for themselves.</p> <p>Mr. Scott: Every item is according to the figures except the item of $2,500 for the difference between an engine such as we received and the other. In my speech to the jury I told them very clearly that we had fixed at that.</p> <p>The Court (to Mr. Carr): You can send out your own statement if you desire.</p> <p>Mr. Carr: I have no statement, I will have to insist on my objection.</p> <p>The Court: I will allow the statement to go out.</p> <p>Exception noted for defendant by direction of the court. [9]</p> <p>The Court: Gentlemen of the jury, there will be handed to you by counsel for the plaintiff a statement setting forth the figures which constitute the claim which the plaintiff makes. That is not evidence. It is merely the counsel’s argument. You may believe that there is something in it or you may believe there is nothing in it. It is merely for the purpose of stating to you what the claim is. You must pass your own judgment on the case and reach your own conclusion in regard to what your verdict should be, whether for the plaintiff or for the defendant, and if it be for the plaintiff, for how much.</p> <p>Verdict and judgment for plaintiff for $3,745.42. Defendant appealed.</p> <p>Errors assigned among others were (5) answer to defendant's point, and (9) ruling as to the statement sent out with the jury.</p>

<p>Jan. T., 1909, by plaintiffs, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1904, No. 3,696, on verdict for defendant in case of Robert M. Blew and Christiana K. Blew, his wife, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendant; plaintiffs appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Jan. T., 1909, by defendant, from judgment of C. P. Lehigh Co., April T., 1909, No. 62, on case stated in suit of Maria E. Arnold and Martha A. Myer v. Muhlenberg College.</p> <p>Case stated to determine title to real estate. Before Trexler, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Equity — Nuisance—Injunction—Iron works — Residential neighborhood — Noise.</p> <p>1. No one is entitled to absolute quiet in the enjoyment of-his property; he may only insist upon a degree of quietness consistent with the standard of comfort prevailing in the locality in which he dwells.</p> <p>2. The entry of an injunction is, in some respects, analogous to the publication of a penal statute; it is a notice that certain things must be done or not done, under a penalty to be fixed by the court. Such a decree should be as definite, clear and precise in its terms as possible, so that there may be no reason or excuse for misunderstanding or disobeying it; and when practicable it should plainly indicate to the defendant all of the acts which he is restrained from doing, without calling upon him for inferences or conclusions about which persons may well differ.</p> <p>3. Where the facts and equities call for it, a chancellor is required to give relief by injunction; but such injunction should never go beyond the requirements of the particular case; and under no circumstances should a decree be entered the apparent practical effect of which will be to close an industrial plant, if it is possible to frame another form of decree which will give such relief as the plaintiff is entitled to.</p> <p>4. On a bill in equity to enjoin the noisy operations of an iron works in a residential neighborhood, the close proximity of a railroad and the noise of the great number of trains that pass over it, may be considered as affecting the standard of comfort normally prevailing in the locality in question. ■</p> <p>5. In such a case where the evidence shows that the real annoyance was caused in the summer time when the windows and doors of the defendant’s establishment were open, and when the defendant did work outside of its building, and at times in the evenings, it is error for the court to enter a decree in such general terms that obedience to it would result in the closing up of the defendant’s works. In reversing such a decree the Supreme Court will direct that the defendant shall not operate the machinery of a noisy character between certain specified hours, and that it shall carry on all such operations on the inside of its buildings with windows securely closed with double sash and with the doors shut.</p> <p>Equity — Injunction—Building restriction — Nuisance.</p> <p>6. Where a bill in equity to enjoin an iron works as a.nuisance contains no averment or prayer for relief founded upon a building restriction in defendant’s deed, and it appears that there was no proper effort made in the court below to have the restriction construed, and it also appears that other industrial establishments were located in the neighborhood, the Supreme Court, on appeal, will not sustain such a construction of the restriction as would result in the entire closing up of defendant’s works.</p>

Jan. T., 1909, by defendants, from decree of C. P. Bucks Co., April T., 1907, No. 2, in equity, on bill in equity in case of John J. O’Neill v. Morris O’Neill and Elizabeth O’Neill, his wife, Elizabeth O’Neill, Administratrix of Morris O’Neill, deceased, and Elizabeth O’Neill. Bill in equity to declare a resulting trust in real estate.

<p>Contract — Doubtful contract — Sale—Coal lands — Interest.</p> <p>1. When the determination of the cost of a coal field is necessary to fix the price under a contract of sale, and the contract is silent on the question whether interest upon moneys expended in the purchase of the coal field is to be allowed in determining the cost, the court is not at liberty to order such interest to be allowed.</p> <p>Vendor and vendee — Purchase money — Contract—Payment.</p> <p>2. Where a vendee of land agrees to pay the vendor a certain sum of money at the execution of the agreement and in addition thereto to pay a portion of a mortgage debt charged upon the land, and also upon final settlement a difference between the cost of the land and the part of the mortgage debt assumed, a finding by the court below from certain facts established upon sufficient evidence, and also from the construction of the agreement, that the sum paid at the execution of the agreement was a part of the purchase money, and not merely a bonus to obtain the contract, will not be set aside in the absence of manifest error.</p>

<p>Jan. T., 1909, by defendants, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 2,610, on judgment for plaintiffs in case of City of Philadelphia, to the use of William Kelley, John M. Ridings, William J. Barr and James W. Barr, trading as North Philadelphia Brick Works, v. John R. Wiggins, Willard H. Walls and Francis K. Worley, trading as John R. Wiggins & Company, and Fidelity &'Deposit Company of Maryland.</p> <p>Assumpsit on penal bond. Before Willson, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Errors assigned were in making absolute rule for judgment for want of sufficient affidavit of defense and entering judgment for plaintiffs.</p>

Jan. T., 1909, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1906, No. 2,503, on verdict for plaintiff in case of William F. Fearon, Trading as William F. Fearon & Company, v. Henry Ashton Little. Assumpsit on a promissory note. Before Audeñried, J. The defendant claimed that the note was given as a result of stock dealings between the parties which were gambling transactions.

<p>Jan, T., 1910, by The Security Title and Trust Company and The Farmers’ National Bank of York, Pa., from order of C. P. No. 5, Phila. Co., Dec. T., 1904, No. 3159, to pay over money on petition of the Fourth Street National Bank of Philadelphia, in case of Tenth National Bank of Philadelphia v. The Smith Construction Company.</p> <p>Petition for rule to show cause why a receiver should not be permitted to withdraw certain funds from banks in York county and to enjoin payment of such funds to any other person. Before Staake, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the decree of the court granting the petition.</p>

Jan. T., 1909, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 925, for defendant non obstante veredicto in case of Emma C. Bergdoll v. Ernst Sopp. Assumpsit for balance due under a mortgage. Before McMichael, P. J. The facts are stated in the opinion of the Supreme Court. Verdict for plaintiff for $1,581.56. The court subsequently entered judgment for defendant non obstante veredicto.

<p>Criminal law• — Murder—Homicide—Manslaughter—Charge of court.</p> <p>1. In the trial of an indictment for murder, an instruction as to manslaughter need not be given or that question submitted to the jury, where there is no evidence to reduce the grade of the crime below that of murder.</p> <p>2. In determining the degree of murder the jury must always be left free to act, because the act of assembly expressly imposes that duty on the jury, but there is no such requirement in distinguishing between murder and manslaughter.</p>

<p>Negligence — Master and servant — Notification of foreman — Obvious danger — Nonsuit.</p> <p>A nonsuit is properly entered in a suit for damages for personal injuries brought by a workman who was injured by being caught in the rollers of a cloth drying machine at which he had worked for a year, where there was no defect in the machine and no danger except the obvious one of having his hand caught by the cylinders if he was careless in handling the cloth.</p>

<p>Jan. T., 1910, by defendant, from judgment of O. P. Delaware Co., March T., 1908, No. 41, on verdict for plaintiff in case of Amor Talley v. Chester Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court submitted the case to the jury.</p> <p>Verdict and judgment for plaintiff for $2,123.10. Defendant appealed.</p> <p>Error assigned was in refusing to enter judgment for defendant non obstante veredicto.</p>

<p>Corporations — Stock—Voting trust — Powers—Trusts and trustees— Options — Proxies.</p> <p>1. An- agreement made between a majority of the stockholders of a corporation and its three directors, whereby the stockholders transfer the legal title and voting rights of their stock to the directors as trustees, for the term of five years, the design being to secure a continuation of the business policy of the corporation inaugurated by the officers then in'control of its affairs, is not invalid, as. againsk.public policy, nor does such, an agreement offend in terms or by necessary implication against any.positive legislative enactment or any declared statutory policy of this state.</p> <p>2. The general policy of the law prohibits the separation of the voting power from the beneficial interest in the stock of a corporation and to justify such a separation by a voting trust agreement there must be a proper interest to conserve, some definite policy in the interest of the- corporation to be carried out, some beneficial interest of the stockholders to be served or some purpose not unlawful of an advantageous character to the stockholders to be effectuated.</p> <p>3. A provision in such agreement giving the trustees the first right to purchase the stock of any contracting party who should not desire to continue the trust relation at the expiration of the period named, for double the par value of the same for the use and benefit of the remaining parties renders^ the power bestowed a power coupled with an interest and therefore irrevocable in accordance with the agreement, ■and this is especially so where the trustees, during the period in which the right to purchase runs, have active and important duties to perform in the interest of all the contracting parties.</p> <p>4. Irrevocable trusts, if not coupled with an interest, are regarded as in the nature of a revocable power, but if coupled with an interest, such agreements are generally sustained, and this interest may be either an interest in the subject upon which the power is to be exercised, or an interest in that which is produced by the exercise of the power.</p> <p>5. An option is not invalid because contingent for, in a sense, all options are contingent, since they may or may not be exercised within the time or upon the conditions stipulated.</p> <p>6. An option is a unilateral agreement binding upon the party who executes it from the date of its execution and becomes a contract inter partes when exercised according to its terms.</p> <p>7. In the above case no question as to the right to vote by proxy arose nor as to the sixty-day limitation provided by the Act of March 5, 1903, P. L. 14, as the parties in whose names the stock stood on the books of the company voted the same and no proxy was required or used.</p>

<p>Oct. T., 1910, by George A. Baird, Ira B. Bassett and John C. Owsley, Executors and Trustees of Peter L. Kimberly, deceased, from decree of O. C. Mercer Co., June T., 1909, No. 37, granting petition of Emma K. Cotton and C. W. Fenton, Administrator of the estate of Jane P. Williamson, deceased, in Estate of Peter L. Kimberly, deceased.</p> <p>Petition of beneficiaries finder a will for an injunction and reconveyance. Before Williams, P. J. .</p> <p>The facts appear in. the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court granting the petition.</p> <p>William D. Wallace, with him William McElwee, Jr., and C. W. Fenton, for appellees.</p>

<p>■ Corporation — Stock—Officers—Sales—Collusive sale — Illegal profits— Costs. ‘</p> <p>1. An officer is but the agent of his corporation, and in all transactions in which its interests are involved, he must act for it with unselfish singleness of purpose, and if in any such transaction it appears that he has acted against the interest of his corporation, the mere fact that the means used to accomplish the unlawful end would if standing alone be lawful in themselves will not save such officer from responsibility to account for profits thus made by him which otherwise might have gone into the coffers of his corporation.</p> <p>2. Where the president of a corporation, practically the whole of whose capital is invested in a valuable piece of real estate, is approached by the agent of another corporation which desires to buy the real estate and, although he knows that his company is willing to sell its property, leads the agent to believe that the real estate cannot be purchased, and afterwards negotiations are carried on between the two which are consummated in a.written contract whereby the agent contracts to buy from the president a majority of the stock of the company owning the real estate, and thereupon the president and a director of his corporation, acting collusively, buy in enough stock to gain control of the corporation, which they turn over to the agent of the other corporation in pursuance of the contract, whereby the agent secures control of the corporation owning the real estate, and the real estate is thereupon regularly sold and deeded over to the agent’s corporation for a not inadequate price, such president and director, in a bill fded by certain of the stockholders, will be compelled to refund to such claimants their proportionate share of the profits made on the sale of the stock to the agent, where the facts conclusively show that all of the negotiations, arrangements and contracts in the stock deal, and the sale and transfer of the real estate, were really parts of one and the same transaction.</p> <p>3. In such a case all that the claimants are entitled to recover is the same share of the profits that they would have received had such profits gone into the treasury of the corporation instead of into the pockets of the president and director; but the costs will be imposed on the defendants.</p> <p>Equity — Class bill — Stockholders—Practice, equity.</p> <p>4. The rule is that a bill which asserts the right of a corporation must ordinarily be brought by the corporation itself, and that the right of an individual stockholder to act for the corporation is exceptional, but where the corporation has practically gone into liquidation and its trustees have no active duties to perform, and where those trustees are found to bo the nominees of the defendants who committed the wrong complained of, the stockholders have reason to believe that a suit instituted in the name of the corporation would not be prosecuted with effect, and the trial judge has the right to allow them to bring and maintain their own bill.</p> <p>Practice — Equity practice — Finding of fact — Deduction from other facts — Reviev).</p> <p>5. When the judgment of the trial court is based upon a deduction from other facts, the conclusion, being the result of reasoning, is subject to revision and to correction if erroneous.</p> <p>Corporations — Receivers—Stockholders’ bill — Equity.</p> <p>6. On a stockholder’s bill against the president and a director of a corporation in which the corporation itself is a party defendant, to recover illegal profits made on the sale of the company’s real estate, a receiver will not be appointed, where a receivership will entail heavy expenses on all concerned without bringing any corresponding benefit.</p>

<p>Jan. T., 1910, by plaintiffs, from decree of C. P. No. 2, Phila., Co., Sept. T., 1907, No. 1,085, dismissing bill in equity in case of Helene A. Baugh and Laura P. Baugh v. Emma C. Bergdoll, Louis J. Bergdoll, The Belmont Iron Company, and Joseph G. Lynch, and Jacob A. Lynch, and Calvin Z. Lynch, trading as Lynch Bros.</p> <p>Bill in equity to enjoin the construction of foundations of a building and to compel their removal. Before Barratt, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing bill.</p>

<p>Jan. T., 1909, by defendants, from decree of C. P. No. 4, Phila. Co., Dec. T., ’’ 1908, No. 1,058, awarding permanent injunction in case of Samuel Smith v. The City of Philadelphia, John E. Reyburn, '"’’¡feyyr,' George R. Stearns, Director of the Department of /’ippohii Works, John M. Walton, Controller, and Edwin H. váre.'</p> <p>Bill in equity by a taxpayer to restrain the city of Philadelphia and "a contractor from entering into a contract supplemental to á prior contract for a municipal improvement. Before Willson, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree awarding the injunction.</p>

<p>Jan. T., 1909, by plaintiff, from judgment of C. P. Montgomery Co., Oct. T., 1908, No. 94, on verdict for defendant in case of Levi D. Yoder v. George W. Strong.</p> <p>Assumpsit for damages arising from breach of contract. Before Weand, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned among others was in giving binding instructions for defendant.</p>

<p>Mechanics’, liens — Liens—Dwelling houses — Garages—Adjoining lots —Mechanic’s lien Act of June 4, 1901, P. L. 431.</p> <p>1. Where the owner of two adjoining lots, both fronting on a public road, erects under a contract a house on one lot, and- under a subsequent contract, a garage on the other lot, said contracts being separate contracts, and treated separately for all purposes, and where the general contractor before the contract for the garage is contemplated, submits to a subcontractor a list of materials to be used in the house, on which the subcontractor gives a lump bid which is accepted, and subsequently the general contractor obtains the contract for the garage and submits another list of materials to the subcontractor for use in the garage at the former prices which is accepted, such subcontractor cannot file one lien against both structures erected on the two lots, and sees. 2, 3 and 12 of the mechanic’s lien Act of June 4, 1901, P. L. 431, do not support such a lien.</p> <p>2. There is nothing in sec. 12 of the mechanic’s lien Act of June 4, 1901, P. L. 431, which provides either in express terms or by implication that a single claim may be filed against two structures for labor or materials furnished under separate and distinct contracts.</p> <p>3. The word “plant” is used in sec. 12 of the mechanic’s lien act of 1901 in its commercial meaning and is to be taken in its ordinary sense of property owned or used in carrying on some trade or business.</p> <p>4. The common law having given no lien for labor or materials in the erection of a building, the right to file a claim is entirely statutory, and in order to avail himself of it a party must comply strictly with the terms of the statute conferring the right.</p>

<p>Sheriff’s sale — Execution—Assent to breach — Practice, C. P.</p> <p>1. A successful bidder at a sheriff’s sale of real estate who is deprived of his purchase by reason of noneompliance with the terms of payment, stated to be due to an alleged verbal extension of the time of payment by the sheriff, cannot recover in damages against the sheriff where it appears that, after his tender of the balance due was refused, as being too late, he gave the sheriff no notice of an intention to hold him to the original agreement, that he made no application to the court to permit the sheriff’s return to be amended and the sale confirmed, that he subsequently became a bidder at a later resale of the property, and that he took no steps to enforce his alleged rights as a purchaser until after the second sale had taken place and the deed made to the purchaser; such ’ evidence showing that both parties treated the sale as rescinded by consent.</p> <p>2. Upon exception taken to a sheriff’s sale on the sheriff’s offering to acknowledge the deed, the court will hear everything that can be urged against the regularity of the proceedings, and the conduct of the sheriff, the plaintiff in the suit, and the purchaser; and receive or refuse the acknowledgment of the deed according to the proofs made before them.</p>

<p>Equity — Decree—Useless decree — Water rights — Boom companies— Dams — Corporations—Charter" powers — Easements—Actions on bonds— Eminent domain.</p> <p>1. A chancellor should not enter a decree which will injure the defendant and confer no advantage on the plaintiff.</p> <p>2. A decree in equity compelling a boom company to open the gates of a dam and permit water to pass through will not be made, where whatever water rights the company seeking the decree has, arise from a deed given in 1854 to its predecessor in title conveying a strip of land “for a mill race to convey water from the pond of the said parties of the first part to the mills designed to be erected by the said parties of the second part, and for no other purpose or use whatever,” .and the testimony shows that the mills in question were destroyed in 1889 and never rebuilt, and fails to show that the plaintiff company has any intention of erecting a mill which can be operated by water conveyed through the race and the openings in the defendant’s dam. Such a decree would be entirely useless and of no benefit to the plaintiff.</p> <p>3. Where a company’s charter authorizes it to erect and maintain a boom on a river, but confers no right to, or control over, the waters of the river other than those incidental to the maintenance of the boom, it can use the water for no other purpose nor grant authority to another to use it for any other purpose, and where by a supplement to its charter the company is required before proceeding to erect the dam to file a bond in court conditioned that the company will indemnify the landholders adjacent to the dam against all losses or damages of any nature whatsoever that may occur to their lands by reason of the construction of the dam, the company acquires its easement freed from the power of the adjacent owner to obtain payment otherwise than upon the bond, and if such owners have not availed themselves of the security afforded by the bond, they cannot compel the company, by a proceeding in equity, to open the gates of the dam and supply them with water.</p> <p>Equity — Findings of fact — Appeal.</p> <p>4. Unless manifest error has been committed by a court below in its finding of facts in an equity suit, such findings will not be set aside on appeal.</p> <p>Prescription — Adverse and permissive 'user.</p> <p>5. A right by prescription never arises from a permissive user.</p>

<p>Jan. T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1908, No. 196, for defendant non obstante veredicto in case of Anna Bell Adams v. Edward J. Johnson and Jonathan A. Casey.</p> <p>Ejectment for land in Walker township. Before Shay, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for defendants non obstante veredicto.</p>

<p>Executors and administrators — Practice, O. C. — Administrators de bonis non — Decedents’ estates — Act of February 24, 1834, P. L. 73.</p> <p>1. .The Act of February 24, 1834, P. L. 73, confers full power upon an administrator de bonis non to take possession of and administer all the unadministered assets of the decedent’s estate, but does not, however, authorize the administrator de bonis non to compel delivery of possession of the assets of the estate until an account has been filed disclosing what part of the estate still remains unadministered in the hands of the former legal representatives; and it is the balance of the estate, thus ascertained, that may be recovered from the former legal' representatives, of the decedent.</p> <p>2. If an executor or administrator die béfore he completes the-administration of the estate, it is the duty of his personal representative to settle an account for his decedent as-such executor or administrator, and if he neglects or refuses to do so, the orphans’ court will, upon application of an interested party, require him to file an account, which account, when filed, is subject to the same objections and exceptions as if it had been filed by the executor or administrator himself.</p> <p>• 3. A decree commanding the personal representative of a deceased executrix to hand over to an administrator de bonis non cum testamento annexo “all moneys, goods and assets” belonging to the original estate should not be made where no account of the assets of the estate has ever been filed, either by the deceased executrix in her lifetime or by her personal representative after her death.</p> <p>4. If an executor or administrator die, leaving the estate but partially administered, his personal representative cannot complete the administration of the first decedent’s estate.</p> <p>5. Tyson's Est., 191 Pa. 218, distinguished.</p>

<p>Jan. T., 1909, by Jennie Bowie, from decree of O. C. Lackawanna Co., 1904, No. 216, setting aside a contract of sale of real estate in Estate of Harriet Amanda Spencer, deceased.</p> <p>Rule to show cause why a contract of sale of real estate should not be set aside. Before Sando, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree setting aside the contract.</p>

<p>Mines and mining — Extinguishment of underground conflagration— Municipalities — Exercise of discretion by municipal authorities— Mandatory injunction — Equity—Continuous supervision.</p> <p>1. It is not for the courts to supervise or control the fair exercise of judgment or discretion by municipal authorities, nor can such authorities be required to do impossible or impracticable things.</p> <p>2. What the authorities of a municipality ought to do in grappling with a disastrous underground mine conflagration is within the exercise of their sound discretion and will not be the subject of a mandatory injunction against the city where nothing in the record appears to indicate that the officers of the city are not acting in good faith or in the exercise of their best judgment.</p> <p>3. A good and sufficient reason for the refusal of a mandatory injunction is the fact that its enforcement would require a close and continuous supervision by the court for an indefinite time.</p>

<p>Jury and jurors■ — Challenges for cause — Employer and employee'.</p> <p>1. No person should be permitted to serve on a jury who stands in any relation to a party to the cause that would carry with it prima facie evident marks of suspicion of favor, as where a litigant is in. a position where he might exercise a control over a juror, such as the relation of master and servant or that of employer and employee. The rule is applicable to a miner and colliery superintendent employed by a mining company.</p> <p>Evidence — Official records — Weather bureau — Diaries—Opinion—■ Condition of land — Competency of witnesses — Waters—NegligenceN</p> <p>2. The regular official record of a weather bureau as to the amount of precipitation each day may fairly be considered proper evidence but this does not cover a mere diary kept by some one other than the witness testifying, several years before the witness became attached to the weather bureau, especially where the matter sought to be proven by such diary is in no sense scientific data but consists largely of the individual opinion of the person who made the entries.</p> <p>3. Where a weather bureau official has given data as to the temperature and precipitation on the dates of a certain flood, and also given his professional opinion as to what would and what would not constitute an extraordinary precipitation, giving figures, it is for the jury to determine whether or not the particular flood was an extraordinary one, and there is no necessity for the witness’s opinion on the subject.</p> <p>4. Where the plaintiff and his witnesses give testimony sufficiently describing the character and condition of his property before certain floods, which are alleged to have done damage to such property, after which witnesses are offered to state the expense of restoring the land to its prior condition, the fact that some of these witnesses have not gained their knowledge of the condition of the land prior to the floods by personal investigation will not debar them from giving the cost of restoring the property to the condition the other witnesses say it was then in.</p> <p>Practice, (J. P. — Trial—Charge—Language of points.</p> <p>5. The trial judge is not bound to adopt the language of points, but may choose his own form of expression, and if it gives the law fully and with substantial accuracy, nothing further is necessary.</p>

<p>Jan. T., 1909, by plaintiff, from judgment of C. P. Delaware Co., March T., 1908, No. 84, refusing to take off nonsuit in case of Anna B. Mackey v. The Philadelphia & West Chester Traction Co.</p> <p>Trespass for damages for death. Before Broomall, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Negligence — Automobiles—Chauffeur—Scope of employment — Master and servant — Disobedience of orders — Use of automobile by owner’s family.</p> <p>1. In an action to recover damages for injuries sustained from being struck by an automobile at a time when the defendant owner was not an occupant, where it is shown that the automobile belonged to the defendant, and at the time of the accident was being operated by his regular chauffeur, not upon any errand of the latter or to serve the latter’s purposes, but in obedience to the order of a member of defendant’s family; that the occupants of the car were friends of defendant, and guests of his sister, and the errand upon which the car was taken was entirely proper and fitting in itself, the burden is upon the defendant to show that the chauffeur was not acting within the scope of his employment, and upon the business for which he was employed by his master, and the fact that while acting for the master he may have disobeyed his commands does not take the act out of the scope of his employment.</p> <p>2. In such a case, the court is not constrained to enter judgment for defendant non obstante veredicto by evidence of the defendant and his sister to the effect that defendant had forbidden the chauffeur to take out the car unless the defendant was with it, where it also appears from the evidence that upon the morning after the accident, defendant and his sister called upon plaintiff, discussed the accident with him and tried to arrange a settlement; that defendant at that time asked plaintiff to send him his doctor’s bill and the bill for repairing the carriage and all other repairs, and that neither then nor any time before suit was brought did it appear that the defendant disclaimed liability upon the ground that the chauffeur was not acting for the master at the time of the accident.</p> <p>3. Where a servant, who is employed for the special purpose of operating an automobile for the master, is found operating it in the manner such machines are usually operated, the presumption naturally arises that he is running the machine in the master’s service. If he is not, this fact is ’peculiarly within the knowledge of the master, and the burden is on him to overthrow this presumption by evidence which the law presumes is in his possession.</p> <p>4. Since the scope of the servant’s employment is necessarily dependent on circumstances, a hard and fast rule cannot be laid down as to the scope of any particular employment; and it is ordinarily a question for the jury whether or not a particular act comes within the scope of a servant’s employment.</p>

Jan. T., 1909, by plaintiff, from judgment of C. P. Lycoming Co., June T., .1907, No. 320, on verdict for defendant by direction of the court in case of George Schley v. Susquehanna & New York Railroad Company. Trespass for damages for personal injuries. Before Ormerod, J., specially presiding. The facts appear in the opinion of the Supreme Court. Error assigned was in directing a verdict for defendant.

<p>Jan. T., 1909, by plaintiffs, from judgments of C. P. Schuylkill Co., March T., 1907, Nos. 145 and 149, on verdicts for defendant in cases of Patrick J. Coyne, Sr., and Sara A., his wife, v. Lakeside Electric Railway Company and Margaret L. Coyne v. Lakeside Electric Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Shay, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in directing verdict for defendant.</p>

<p>Contract — Commission on sale — Owners in common — Partition— Vendor and vendee.</p> <p>A clause in an agreement to the effect that the party of the first part, owner in common with a coal company of certain coal lands “ does hereby employ the party of the second part to procure for him a purchaser for said coal lands, in case the same shall be offered for sale in the course of said partition proceedings, and in case such purchaser shall be found, the party of the first will pay to the party of the second part the sum of ten per centum of the amount which he shall receive for his interest in said tract, whether said sale shall be made in the course of said partition proceedings or not, and whoever may be the purchaser thereof; and shall also include any amount received from the said coal company as a settlement in said partition proceedings, it being the understanding of the parties hereto that a partition of said premises is essential to a successful sale thereof, and that the finding of a purchaser who will buy said land in case it shall be offered for sale in the course of said proceedings, is essential in order for a successful prosecution thereof” is to be construed to mean that the compensation of ten per centum hinges on the procuring of a purchaser, ready, able and willing to buy the land in question, providing it shall be offered for sale, and not that the ten per cent, commission is to be paid in the event of a settlement of the partition proceedings by a sale between'the . owners in common.</p>

Jan. T., 1909, by Alice N. Milliken et al., from order of O. C. Schuylkill Co., March T., 1907, No. 19, dismissing petition for review of executors’ accounts in estate of Allan C. Milliken, deceased. Petition for review of executors’ accounts. Before Wilhelm, P. J. The facts appear in the opinion of the Supreme Court. Error assigned was the dismissal of the petition.

<p>Jan. T., 1909, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1907, No. 1,677, for defendant non obstante veredicto in case of Thomas H. Jones v. Marion Coal Company.</p> <p>Assumpsit for breach of contract/ Before Carpenter, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was entry of judgment for defendant non obstante veredicto.</p>

<p>Jan. T., 1909, by Sarah .Harrison and Theodore L. Harrison, Executors, and the Philadelphia Trust, Safe Deposit & Insurance Company, Co-executor and Trustee, and No. 220, Jan. T., 1909, by Showell & Fryer, Ltd., from decree of C. P. No. 4, Phila. Co., June T., 1905, No. 5,214, on bill in equity in case of John R. Wiggins, W. H. Walls and F. K. Worley, trading as John R. Wiggins & Co., v. Columbian Fireproofing Company; Sarah Harrison and Theodore L. Harrison, Executors under the Will of Joseph Harrison, Jr., deceased, and the Philadelphia Trust, Safe Deposit & Insurance Company, Coexecutor and Trustee under said Will; Showel & Fryer, Ltd., and Edgar V. Seeler.</p> <p>Bill in equity. Before Willson, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned in each appeal was the decree of the court.</p>

Jan. T., 1909, by defendant, from judgment of O. P. No. 5, Phila. Co., March T., 1907, No. 1,286, on verdict for plaintiff in case of Joshua L. Baily, Frederick L. Baily et al., trading as Joshua L. Baily & Company v. Western Union Telegraph Company. Trespass for wrongful delivery of a telegraph message. Before Ralston, J. The facts appear in the opinion of the Supreme Court. Defendant’s points all of which were declined were as follows: 1.

Jan. T., 1909,. by defendants, from judgment of C. P. No. 5, Philadelphia Co., June T., 1908, No. 2,606, for want of sufficient affidavit of defense in case of William Wood and John P. Wood, trading as William Wood & Company v. Irvin C. Kerkeslager, Lewis Willey and Joseph M. Adams, Trustees in Bankruptcy of Alexander Crow, Jr., appellants. Assumpsit arising out of an interpleader. Rule for judgment for want of a sufficient affidavit of defense.

<p>Jan. T., 1909, by defendants, from judgment of C. P. No. 5, Phila. Co., June T., 1908, No. 2,605, for want of sufficient affidavit of defense in case of Third National Bank of Philadelphia v. Irvin C. Kerkeslager, Lewis Willey and Joseph M. Adams, Trustees in Bankruptcy of Alexander Crow, Jr., appellants.</p>

<p>Jan. T., 1909, by the Real Estate Title Insurance & Trust Co., and Isabel Frances Carson, trustees, and Isabel Frances Carson, individually, from decree of O. C., Montgomery Co., Oct. T., 1908, No. 41, dismissing exceptions to adjudication in Estate of Robert N. Carson, deceased.</p> <p>Exceptions to adjudication of executors’ accounts.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing exceptions.</p>

<p>Mortgages — Payments of interest — Binding instructions.</p> <p>On a sci. fa. on a mortgage to which the only defense is that a former terre-tenant made payments of the interest to the holder which were not properly credited, binding instructions for the plaintiff are correct, where from an examination of the testimony it is doubtful if any such payments were made, and it is certain that, if made, there was nothing to show when or what they amounted to.</p>

<p>by defendant, from decrees of C. P. Montgomery Co., March T., 1909, Nos. 8, 9 and 10, on bills in equity in cases of William H. Murphey, Township Treasurer of Cheltenham Township v. William M. Hagginbotham, Treasurer of Montgomery County John M. Harmer, Township Treasurer of Abington Township, v. William M. Hagginbotham, Treasurer, etc., and Henry D. Cornman, Township Treasurer of Lower Merion Township, v. William M. Hagginbotham, Treasurer, etc.</p> <p>Bill in equity for an injunction.</p> <p>Error assigned was the decree of the court.</p>

<p>Jan. T., 1909, by Ida M. MacArthur from decree, of O. C. Phila. Co., April T., 1908, No. 777, refusing an issue devisavit vel non in estate of Lizzie E. Chidester.</p> <p>Petition for an issue devisavit vel non.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree refusing an issue.</p>

<p>Jan. T., 1909, by. defendants, from judgment of C. P. Chester Co., Aug. T., 1909, No. 85, on verdict for plaintiff in case of Irwin W. Miller v. John R. Wiggins, W. H. Walls, and F. K. Worley, trading as John R. Wiggins & Company.</p> <p>Assumpsit on a building contract. Before Butler, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $1,980.47. Defendants appealed.</p> <p>Error assigned was in affirming plaintiff’s first point, as follows:</p> <p>If the jury believe from the evidence that a custom existed among masons, builders, contractors and architects, where the contract was signed and the work done, by which all masonry, unless otherwise provided by special contract, was measured and paid for by what is known as “ masons’ measurement,” which consisted in measuring all openings in the walls as if built up, and the corners and angles twice, that this custom had existed for a period of more than twenty years prior to the date this contract was entered into, that the same was certain, uniform and notorious, and so notorious as to affect the defendants with a knowledge of its existence, then the jury will allow the plaintiff the number of perches so erected by him in accordance with such “ masons’ measurement.” Answer: This point we affirm.</p>

<p>Jan. T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1906, No. 288, on verdict for Buck Run Coal Company by direction of the court in case of Edward Dempsey v. The Buck Run Coal Company, Patrick Devers et al.</p> <p>Trespass to recover damages for personal injuries. Before Bechtel, J.</p> <p>Errors assigned were (1-3, 8, 9) above instructions, quoting them.</p>

<p>Corporations — Officers—President and directors — Compensátion for services rendered — Necessity for express contract.</p> <p>1. A corporate officer or director cannot recover compensation for services rendered the corporation unless there was an express contract of employment before the services were performed.</p> <p>2. The president of a corporation cannot recover on the basis of a quantum meruit for services rendered the corporation of which he is an officer, except as an express contract can be shown, and this, is so although the services for which recovery is sought are professional and not such as appertain to the office of president under the by-laws of the corporation.</p> <p>2. This rule applies to the president of a coal company, a mining and civil engineer, who claims to recover from the company compensation for services in surveying, procuring rights of way, building a railroad and bridge, and putting up tipples.</p>

<p>January T., 1909, by plaintiff, from judgment of C. P. Schuylkill Co., Sept. T., 1907, No. 86, on verdict for defendant in case of Thomas R. Edwards v. Henry Meyers.</p> <p>Assumpsit on a promissory note. Before Shay, P. J.</p> <p>Errors assigned among others were (1-4) above instructions, and (6) the admission in evidence of the record of the suit of Meyers v. Catawissa Coal Company.</p>

<p>Jan. T., 1909, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1908, No. 451, on verdict for plaintiff in case of Charles Ackerman v. The City of Williamsport.</p> <p>Trespass to recover damages for personal injuries. Before Hart, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,875. Defendant appealed.</p> <p>Errors assigned among others were in refusing binding instructions for defendant and in refusing defendant’s second point, as follows: .</p> <p>2. To entitle the plaintiff to recover in this case he must prove that Maynard street at the point covered by the Basin bridge had, at or previous to the time of the accident, been accepted by the council of the city of Williamsport as a public highway. Answer: This point is refused.</p>

Jan. T., 1909, by, defendant, from judgment of C. P. Lycoming Co., Sept. T.,-1908, No. 452, on verdict for plaintiff in case of William MiBrobst v. The City of Williamsport. Trespass to recover damages for personal injuries. .

<p>Jan. T., 1910, by Eugene Frantz, surviving joint-petitioner, from decree of O. C. Lackawanna Co., No. 55 of 1904, dismissing petition for review of the account of M. J. Martin, executor in Estate of Mary Augusta Dox.</p> <p>Petition for review of an executor’s accounts. Before Sando, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was the decree dismissing the petition.</p>

<p>Payment — Receipts—Attorney and client — Evidence.</p> <p>1. A receipt given by a client to her attorney “in full payment” of a certain sale transaction is prima facie evidence of a settlement in full of the matter to which it refers, and is not to be set aside except for fraud, accident or mistake, but it is always open to explanation or correction.</p> <p>2. A receipt is like any other parol admission by the party, open to contradiction, explanation or correction.</p>

<p>Jan. T., 1910, by-Joseph Donnelly, from decree of O. C. Lackawanna Co., No. 25 of 1909, refusing an issue devisavit vel non in Estate of Patrick Donnelly, deceased.</p> <p>Petition for an issue devisavit vel non. Before Sando, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree refusing the issue.</p>

<p>Practice, equity — Mortgages — Bonds — Substituted bond and mortgage — Security for loans — Remedies for enforcing payment.</p> <p>1. The mere fact that a creditor has several securities for his debt does not confer Jurisdiction on equity to enforce payment of his claim.</p> <p>2. Where the holder of a substituted bond and mortgage of a coal company, securing the same loan and including the same land as an original bond and mortgage given by two individuals, also holds an agreement with a default clause whereby the property of the coal company, not included in the original mortgage, is made security for the payment of the original and substituted bonds and mortgages, and a further agreement whereby the whole of the capital stock of the coal company is to be held under full powers as additional security for the loan, such holder has adequate and effective remedies at law for enforcing payment of the loan and does not require the aid of a court of equity in case of default.</p> <p>Practice, equity — Bill for an accounting — Discovery.</p> <p>3. Where a bill shows no ground for an accounting, a prayer for discovery, incidental to the accounting, must be denied.</p>

<p>Jan. T., 1909, by plaintiff, from order of C. P. Lackawanna Co., Sept. T., 1909, No. 1,702, discharging rule for judgment for want of a sufficient affidavit of defense.in case of The New York Trust Company of the City of New York v. The Langcliffe Coal Company, The Langcliffe Coal Company, Limited, and The Hudson Coal Company.</p> <p>Scire facias sur mortgage. Before Edwards, P. T.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was discharge of rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Corporations — Stock—Company stock — Practice, C. P. — Case for the jury.</p> <p>In a suit against the president of a corporation to collect an alleged balance due on account of stock purchases, where the only question at issue is whether the defendant acquired all or only part of his holdings of stock from the company, the case is for the jury where, against the defendant’s contention that part of his holdings were assigned to him by original allottees, there are shown exhibits from the books of the company prepared by him or from his data; his own declarations, testified to by several witnesses, importing that the stock was company stock; and the inference to be drawn from an admitted payment which, with other payments claimed by defendant but disputed by plaintiff, would make as a total the exact price of all his holdings at par.</p>

<p>Jan. T., 1909, by defendant, from judgments of C. P. Monroe Co., Dec. T., 1907, Nos. 15 and 16, on verdicts for plaintiff in cases of James S. Fisher v. Delaware, Lackawanna & Western Railroad Company.</p> <p>Appeal from the award of a jury of view. Before Staples, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdicts for plaintiff amounting to 14,226.25 and judgment thereon.</p> <p>Errors assigned were in refusing to withdraw a juror and refusal of defendant’s point.</p>

<p>Jan. T., 1909, by defendants, from judgment of C. P. Monroe Co., Feb. T., 1907, No. 17, on verdict by direction of the court in case of The Delaware, Lackawanna & Western Railroad Company v. The Monroe County Water Power & Supply Company, Van C. Peters and W. S. Shafer.</p> <p>Assumpsit on a written contract. Before Staples, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiffs for $3,991.71. Defendants appealed.</p> <p>Errors assigned were in refusing to enter judgment for defendants non obstante veredicto and in rejecting the offer of the defendants to show the interest which the defendants had in the retaining wall and backing and the reason for having it erected and the fill made.</p>

<p>Jan. T., 1909, by defendant, from judgment of C. P. Carbon Co., Oct. T., 1908, No. 28, on verdict for plaintiff in case of Mary McDyer v. Eastern Pennsylvania Railways Company.</p> <p>Trespass to recover damages for personal injuries resulting in death. Before Heydt, P. J.</p> <p>Verdict and judgment for plaintiff for $6,000. Defendant appealed.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in refusing to strike out testimony; in refusing to permit certain physicians called by the defense to testify as experts; and to portions of the charge of the court.</p>

<p>Constitutional law — Constitution of Pennsylvania, art. Ill, secs. 3, 6, 7 — Decedents’ estates — Intestacy—Widow’s share — Exemption laws— Title of act — Republication—Extension of previous statutes — Act of April, 1, 1909, P. L. 87 — Method of procedure.</p> <p>1. The Act of April 1, 1909, P. L. 87, regulating the descent and distribution of the estates of intestates, does not offend against secs. 3, 6 or 7, of art. Ill, of the constitution. This act is not an exemption law.</p> <p>2. The title of an act need not be a general index to the contents of the act, but it is sufficient if it relates to one general subject, no matter how the details may be multiplied, provided they are subordinate to the general purpose of the act and germane to its provisions.</p> <p>3. An act, complete in itself, which applies an established method of procedure, whether it be by common law, or-statute, or joint operation of both, to a new class by general reference only, does not violate the constitutional provision as to republication, though it may operate to some extent as an extension of a previous statute.</p> <p>4. The Act of April 1, 1909, P. L. 87, is not a local or special law and therefore not within the inhibition of sec. 7, of art. Ill, of the constitution.</p>