Volume 228 — Pennsylvania State Reports

<p>Appeal, No. 62, Jan. T., 1909, by defendant, from judgment of C. P. Chester Co., Jan. T., 1909, No. 9,. on verdict for plaintiff in case of Chestnut Hill and Spring House Turnpike Road Company v. Montgomery County.</p> <p>Petition for the appointment of viewers to condemn a turnpike road. Before Hemphill, P. J.</p> <p>From the record it appeared that the proceedings were originally started in the court of quarter sessions in Montgomery county, June Term, 1907, No. 39, and that the venue was subsequently changed to Chester county where the trial was had.</p> <p>At the trial the court permitted Malcolm D. Patterson, a witness for plaintiff, to testify under objection and exception as to the quantity and value of the masonry in certain bridges. [3]</p> <p>The court also permitted Hugh Crilley, a witness for plaintiff, to testify as to the buying and selling value of the stock of the company since 1901 [4], including three bills of exceptions.</p> <p>The same witness and other witnesses were permitted under objection and exception to testify as to the grading and excavation of the highway and the value thereof. [6, 7, 8, 9]</p> <p>The defendant presented, inter alia, the following point:</p> <p>2. That the value of the property to the plaintiff company, the Chestnut Hill and Spring House Turnpike Company, is to be ascertained by the value of the structure considered in connection with the value of its franchises, and the value of its franchises depends largely upon its earning capacity or productiveness. Answer: That is affirmed with the qualification that whether the value of its franchises depends largely upon its earning capacity or productiveness — is for the jury to determine. [17]</p> <p>Verdict and judgment for plaintiff for $61,000. Defendant appealed.</p> <p>Errors assigned among others were (1) refusal of C. P. Montgomery county to strike off the appeal; (2) refusal of C. P. Chester county to strike off the same appeal when moved to do so at the trial; (3-9) rulings on evidence, quoting the bill of exceptions; and (17) refusal of defendant’s point as above, quoting point and answer.</p>

<p>Appeals, Nos. 346 and 347, Jan. T., 1909, by plaintiffs, from judgments of C. P. Delaware Co., Dec. T., 1903, Nos. 223 and 224, on verdicts for defendant in cases of Fred Rively and Albert K. Taylor v. Media, Middle-town, Aston & Chester Electric Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Savidge, P. J., specially presiding.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>It also appeared that the plaintiff, Rively, was in the wagon as a guest by the invitation of the plaintiff, Taylor.</p> <p>Verdicts and judgments for defendant. Plaintiffs appealed.</p> <p>Errors assigned in both cases were in directing verdicts for defendant.</p>

<p>Appeal, No. 378, Jan. T., 1909, by P. C. Foy, from order of Q. S. Schuylkill Co., In re Petition to contest election of P. C. Foy to the office of School Director in the Middle Ward of Girardville Borough.</p> <p>Petition in election contest. Before Bechtel, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court as stated in the opinion of the Supreme Court.</p>

<p>Appeal, No. 37, Jan. T., 1910, by defendants, from decree of C. P. Lackawanna Co., May T., 1908, No. 1, on bill in equity in case of E. J. Northup et al. v. Lephe A. Hall et al.</p> <p>Bill in equity for cancellation of a deed. Before New-comb, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court found the following conclusions of law:</p> <p>2. But the fact that Mr. Davidson believed the receipt did not have that effect, coupled with the knowledge that the grantor claimed it was not at the time so intended by her, goes to the good faith of the transaction, and is pertinent as showing that the ostensible consideration moving to the grantor was assumed for the benefit of the defendants and to the grantor’s prejudice. As such it was an apparent, rather than a real consideration.</p> <p>6. The evidence is insufficient to satisfy the conscience of the court either that the grantor got, or was by defendants intended to get, any real consideration for the deed; or that in other respects the transaction is free from suspicion that unfair advantage was taken of her.</p> <p>7. On the contrary, the evidence warrants the conclusion that her credulity was imposed upon in respect to the alleged impending sale of the homestead, and that she conveyed her property because she had been adroitly deceived into the false apprehension that it was inevitable as the only means of saving her home.</p> <p>8. This is decisive of the issue against the defendants.</p> <p>9. The plaintiffs are, accordingly, entitled to a decree to the effect that defendants hold title under the deed in question as trustees ex maleficio to the use of the grantor’s heirs at law.</p> <p>10. In order that complete relief be had it should be decreed that the deed be surrendered for cancellation.</p> <p>11. The defendants should pay the costs.</p> <p>The court entered a decree canceling the deed.</p> <p>Errors, assigned among others were (6-12) the conclusions of law as above; (14) the decree canceling the deed.</p>

<p>Vendor and, vendee — Judgment—-Opening judgment — Ejectment.</p> <p>A vendor of land brought an action of ejectment for unpaid installments of purchase money. At the same time he entered a rule to arbitrate. Subsequently the parties agreed that the rule to arbitrate be stricken off, and the defendant confessed judgment for the land, to be set aside, upon payment by the defendant into the prothonotary’s office of .the whole balance of the purchase money. Upon such payment the plaintiff was to deposit with the prothonotary a deed for the land to the defendant. Subsequently the defendant entered a rule to open the judgment. Held, (1) that the defendant could confess judgment in consideration of the rule to arbitrate being stricken off;</p> <p>(2) that the prothonotary was authorized by statute to enter the conUssed judgment; (3) that the fact that the vendee made valuable improvements on the land did not permit him to retain the property without paying the purchase money, and (4) that under all the facts the court was justified in refusing to open the judgment.</p>

<p>Wills — Construction—Fee simple estate — Real estate.</p> <p>1. A devise with power to give a fee, passes a fee.</p> <p>2. Where a testator gives to a person, who is in the position of a daughter to him, the same estate which she would have taken as his only child and heir at law, and in a subsequent clause directs that should she “have no legal issue or heir of her own body at her death, the personal or real property she may die seized of by virtue of this bequest shall revert to and belong to my estate,” the devisee takes a fee simple in the testator’s real estate.</p>

<p>Appeal, No. 57, Jan. T., 1910, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1908, No. 485, on verdict for plaintiff in case of Dominico Giovanelli v. Erie Railroad- Company.</p> <p>Trespass to recover damages for personal injuries. Before Fanning, P. J.</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 7, Oct. T., 1910, by Hugh Ferguson, from decree of O. C. Allegheny Co., April T., 1909, No. 172, dismissing exceptions to adjudication in Estate of Harvey Lyman Shaffer, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Promissory notes — Affidavit of defense — Failure of consideration.</p> <p>1. In an action upon promissory notes where the plaintiff is the indorsee of the payee and took the notes after maturity, and the statement does not aver that the plaintiff is a holder in good faith and for value, and that at the time the notes were negotiated he had no notice of any infirmity in the instrument, an affidavit of defense is sufficient which avers failure of consideration caused by certain acts of the payee in violation of his express agreement inducing the execution of the notes, and that the notes were “ put into the hands of plaintiff under a collusive arrangement to assist the payee in collecting them contrary to the defendant’s rights.”</p> <p>Promissory notes — Patent rights — Corporations—Act of April 12,1872, P. L. 60.</p> <p>2. Promissory notes given in payment for the stock of a corporation to which the payee of the notes has assigned patent rights, are not within the contemplation of the Act of April 12, 1872, P. L. 60.</p>

<p>Insurance — Fire insurance — -Cancellation—Notice—Substitution.</p> <p>1. A policy of fire insurance is a contract of indemnity, and unless it is canceled by mutual consent, or the policy provides that it may be terminated on the option of the parties and is so terminated, it will continue in force for the term for which it was written. If the right to terminate is reserved in the policy, the conditions upon which it is to be exercised must be strictly complied witli; and if a certain number of days is required to intervene before the notice to cancel is to take effect, the policy will still be in force and cancellation will not become effective until the expiration of the time named in the notice.</p> <p>2. If the insurance company allege as a defense in ail action on its policy that the assured has waived a five days’ notice of cancellation, or that he has replaced the policy by another policy and thereby relieved the company from liability, it is incumbent upon the company to aver in its affidavit of defense and prove on the trial, not only that such was the intention of the assured but that his intention was carried out with his consent and by his agreement with the company.</p> <p>3. The mere procurement of another policy on the same property and for the same amount after the notice and within the five-day limit does not disclose an intention on the part of the assured to cancel the earlier policy or to relieve the company from liability thereon; and in order that it may have such effect, the company must aver and prove that the assured consented and agreed to the cancellation and the substitution of the later for the earlier policy.</p> <p>4. A fire insurance policy contained a provision permitting the insurance company to cancel the policy on five days’ notice. The company gave a notice on November 7. The insured immediately took out a policy in another company without any notice to, or arrangement with, the first company. The property was destroyed by fire on November 11. Held, that the first company was bound to bear its ratable share of the loss.</p>

Appeal, No. 63, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1909, No. 4,596, for defendant on case stated in suit of Fidelity Trust Company, Committee of the Estate of Maria Louisa Hoffman, v. Moses Bobloski. Case stated in amicable action of ejectment. Before Martin, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant on the case stated.

<p>Will — Trusts and trustees — Charitable gift — Location of building.</p> <p>A bequest to “The Home for Orphans of Odd Fellows at Twentieth and Ontario Streets, Philadelphia, to be used for the purpose of erecting a wing or addition to its building” does not restrict the home from using the money in erecting a wing to a building necessary for its work in a locality other than that mentioned in the will.</p>

Appeal, No. 80, Jan. T., 1910, by defendant, from order of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 3,749, refusing to reduce assessment of damages in case of George Egolf Building & Loan Association v. Frank C. Cleaver. Rule to reduce assessment of damages. The opinion of the Supreme Court states the facts. Error assigned was order refusing to reduce assessment of damages.

<p>Deceit — False statements — Evidence.</p> <p>To establish an action to recover damages, alleged to have been sustained by reason of false and fraudulent statements made by the defendant concerning the value of certain bonds and shares of-stock, which the plaintiff purchased on the defendant’s recommendation, it is essential for the plaintiff to prove that the statements were untrue, and that they were made in bad faith.</p>

Appeal, No. 408, Jan. T., 1909, by defendant, from order of C. P. No. 2, Phila. Co., Sept. T., 1909, No. 3,432, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Benjamin F. Stradley v. Bath Portland Cement Company. Assumpsit to recover monthly installments of salary. Before Sulzberger, P. J. Rule for judgment for want of a sufficient affidavit of defense. The facts appear by the opinion of the Supreme Court.

Appeal, No. 57, Jan. T., 1909, by plaintiffs, from decree of C. P. Franklin Co., Equity Vol. 3, page 98, dismissing bill in equity in case of Chambersburg Borough School District and Whitfield C. Bishop v. Hamilton Township School District and John W. Bossart. Bill in equity to cancel a deed. Gillan, P. J., stated the case to be as follows: The township of Hamilton comprises one school district; it adjoins the borough of Chambersburg.

<p>Appeal, No. 63, Jan. T., 1909, by plaintiff, from decree of C. P. Lackawanna Co., Sept. T., 1908, No. 30, dismissing bill in equity and sustaining cross bill in case of Grover C. Sears v. The Scranton Trust Company, administrator c. t. a. of Charles H. Sears, deceased.</p> <p>Bill in equity for an accounting of partnership assets and for the appointment of a receiver. Before New-comb, J.</p> <p>A cross bill was filed by the defendant praying for an injunction and for cancellation of certain deeds and a partnership agreement.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were (1) in dismissing the bill; (2) in entering a decree in accordance with the prayer of the cross bill.</p>

<p>Will — Devise—Rule in Shelly’s case.</p> <p>Testatrix devised to a son the use and income of seven enumerated properties “for and during his lifetime.” In the next clause of her will she directed as follows: “And immediately after the decease of said son I give and devise the above described seven tracts or pieces of land, devised to him herein for life, to his issue in fee. Should he, however, die without leaving issue living,” then over to another son in fee. Other devises in the will were to the devisees, their “heirs and assigns.” Held, that the devise in question was to the son for life, and that the rule in Shelly’s case had no application, inasmuch as the issue of the son did not take as issue from him, but as the root of a new succession directly from the testatrix.</p>

<p>Appeal, No. 26, Jan. T., 1910, by plaintiff, from judgment of C. P. Berks Co., Nov. T., 1907, No. 1, on verdict for plaintiff in case of Katharine B. Stocker v. August Schneider.</p> <p>Rule to open judgment.</p> <p>Issue to determine amount due on judgment. Before Endlich, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The record showed the following verdict and judgment:</p> <p>October 12, 1908, verdict finding: 1. As to the first issue that the amount owing as principal to plaintiff from defendant is $57,084. 2. As to second issue that the debt is payable in ten years from the date of the bond and mortgage. 3. As to the third issue that interest thereon is payable annually.</p> <p>January 3, 1910, judgment entered on verdict finding: 1. As to the first issue that the amount owing as principal to plaintiff from defendant is $57,084. 2. As to</p> <p>second issue that the debt is payable in ten years from the date of the bond and mortgage. 3. As to the third issue that interest thereon is payable annually.</p> <p>January 3, 1910, “And now, to wit: January 3, 1910, this cause came on to be heard at this term and was argued by counsel and upon consideration thereof it is ordered, adjudged and decreed as follows, viz.: that the verdict of the jury be approved and that the amount owing on the bond and warrant and mortgage dated April 6, 1907, given by the defendant to the plaintiff is $57,084, payable in ten years from the date thereof with interest at the rate of five per cent per annum payable annually, that the execution be set aside and that the plaintiff pay the costs.”</p> <p>Plaintiff appealed.</p> <p>Errors assigned were (1) in making absolute rule to open judgment; (3-22) various rulings on evidence and instructions.</p>

<p>Corporations — Stockholders—Double liability.</p> <p>Under the laws of Minnesota which impose a liability upon stockholders of certain classes of corporations to creditors to an amount equal to the par value of their stock, the liability is fixed upon the persons whose names stand on the stock register of the company as the owners of the stock; and if an executor permits stock to be registered in his own name without indicating in any way on the register of the company that he holds the stock as executor, he will be liable individually for assessments levied by the receiver of the company when it becomes insolvent.</p>

<p>Appeal, No. 395, Jan. T., 1909, by defendant, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1906, No. 2,702, on verdict for plaintiff in case of Amelia It. Thorp v. Howard Boudwin.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Ralston, J.</p> <p>At the trial the defendant produced a number of witnesses to show .the faulty construction of the building-prior to the tenant’s occupancy and its condemnation by the city authorities. These offers were overruled. [2-6]</p> <p>The court also overruled an offer of the record of the suit of Amelia R. Thorp against the owner of the building. [7]</p> <p>Defendant presented these points:</p> <p>2. If the jury find that the owner leased the premises to the defendant as a slate mantel factory, and did not post a notice according to sec. 26 of the act of assembly of June 8, 1893, as to the floor capacity of the said building, and the defendant, in ignorance of its capacity, overcrowded the same, their verdict must be for the defendant. Answer: Refused. [8]</p> <p>6. Under all the evidence their verdict should be for the defendant. Answer: Refused. [9]</p> <p>The court charged in part as follows:</p> <p>[Taking then for granted that this building would sustain seventy pounds to the square foot, in the point of view of Mr. Boudwin, had he any right to use that building where greater weight would be put upon the building than would ordinarily be put upon the floors of a dwelling?</p> <p>In your judgment, should a man in the ordinary course of affairs, a man engaged in that sort of business, know what the capacity of the floors ought to be? Should a man take an ordinary dwelling and load the floors up with heavy stones without making any inquiry as to the bearing capacity of the floor?</p> <p>If you find that it was Mr. Boudwin’s duty to make some inquiry, some investigation of this building, so as to ascertain whether the floors were capable of sustaining the extra weight which he proposed to put upon them in his business, then you might find that he was negligent in not making such an investigation. Before, however, the plaintiff can recover you must also find from the testimony that the overloading of these floors was what caused them to fall and carry the front wall .with them.] [10]</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Errors assigned were (1) in admitting the evidence of the building inspector called by plaintiff; (2-7) various rulings on evidence, quoting the bill of exceptions; (8-10) above instructions, quoting them.</p>

<p>Negligence — Defective sidewalk — Notice—Evidence.</p> <p>In an action against an owner of property fronting on a public highway, to recover damages for personal injuries, sustained by the plaintiff’s foot sinking into a hole in the board sidewalk, it is error to submit the case to the jury where there is no evidence whatever to show that the hole was in existence at any time prior to the accident, or that the board by reason of weakness or decay, gave way at the time under the weight of the plaintiff. The principle of res ipsa loquitur does not apply to such a case.</p>

<p>Appeal, No. 71, Jan. T., 1910, by defendant, from judgment of C. P. No. 3, Phila. Co., June T., 1906, No. 2,324, on verdict for plaintiff in case of Eleanor Davies v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $2,500, upon which judgment was entered for $2,000, all above that amount having been remitted.</p> <p>Error assigned was that the charge was inadequate.</p>

<p>Appeal, No. 62, Jan. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1904, No. 3,655, on verdict for plaintiff in case of Dulaney & Wharton v. Philadelphia & Reading-Railway Company.</p> <p>Assumpsit for a loss resulting from the payment of a draft accompanying a bill of lading issued without delivery of goods to the initial carrier. Before Magill, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judment for plaintiff for $2,860. Defendant appealed.</p> <p>Errors assigned were various instructions.</p>

<p>Appeal, No. 383, Jan. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1908, No. 4,349, on verdict for plaintiff in case of Norris E. Henderson, trading as the N. E. Henderson Hardware & Paint Company, v. John W. Jennings.</p> <p>Assumpsit for breach of contract to purchase a mortgage. Before Sulzberger, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the defendant submitted, inter alia, the following points:</p> <p>5. The measure of damages in this case is the difference in the selling price of the mortgage and its market value at the time of breach, and as there is no evidence of such market value, you cannot find for the plaintiff for that part of his claim which relates to the purchase price of the mortgage. Answer: Declined. [5]</p> <p>6. Under all the evidence you cannot find for the plaintiff for that part of his claim which relates to the purchase price of his mortgage. Answer: Declined. [6]</p> <p>Verdict and judgment for plaintiff for $1,692.98. Defendant appealed.</p> <p>Errors assigned were (5, 6) above instructions, quoting them.</p>

<p>Partnership — Service of process — Sheriff’s return.</p> <p>1. Where an action is brought against two persons named trading as a partnership, the return of the sheriff is good where he states that he served the writ upon one of the defendants, naming him by name, as “general manager, and one of the defendants.” In such a case the words “general manager” may be considered as surplusage.</p> <p>2. In an action against a partnership the service of the writ is good for the purpose of binding the partnership property and assets if made upon one or more of the partners. If, however, it is sought to hold not only the partnership property, but the separate and personal estate of each individual partner, then the service must be made upon each partner.</p>

<p>Negligence — Street railways — Damages—Nenous shock — Fright.</p> <p>1. The rule that there can be no recovery of damages for bodily or mental suffering resulting from fright unconnected with physical injury, applies where the relation of carrier and passenger exists. .</p> <p>2. The rule is applicable to a miscarriage resulting from a nervous shock to a woman occasioned by an electric car in which she was riding bumping over the track at an open switch.</p>

<p>Boroughs — Chief burgess — Public officers — Act of May 23,1893, P. L. 113.</p> <p>Under the Act of May 23, 1893, P. L. 113, entitled “An. Act to authorize the election of a chief burgess for three years in the several boroughs of this commonwealth, who shall not be eligible to the office for the next succeeding term,” a person is disqualified to act as chief burgess for a term beginning in 1909, where it appears that he had been elected to the office in 1903, and served a full term for three years, that he was again elected in 1906, serving a term of two years and eleven months when he resigned, and was again elected to the office in 1909 for another term of three years.</p>

<p>Contract — Sales — Parol contemporaneous agreement ■ — Evidence — Charge.</p> <p>1. In an action to recover the price of an electric light plant it appeared that there was a written contract which specifically stated what the defendant was to get for the price which he was to pay. The contract contained this clause: “And it is further agreed that this instrument evidences the whole contract under which the said engine is received by the undersigned.” The contract also provided that the plaintiff was to lay a necessary concrete foundation for the plant. It was admitted that such a foundation should extend sixty inches below the floor level. It was shown that it extended only twenty-two inches. When the plant was put in operation it was found that the noise, vibration and shock were so great as to render the building uninhabitable. Nothing was said in the contract about noise and vibration, but defendant alleged that there was a contemporaneous parol agreement that there should be no noise or vibration. The court charged that if the noise and vibration were undue and more than a reasonable man should have anticipated a defense was made out. It also permitted the jury to take into consideration the alleged parol representations. Held, that such instructions were erroneous.</p> <p>2. In such a case the appellate court has no means of determining whether a verdict for the defendant was based upon the failure of the plaintiff to build a proper foundation according to the contract, or upon the erroneous portions of the charge.</p>

Appeal, No. 392, Jan. T., 1909, by plaintiffs, from judgment of C. P. Berks Co., Nov. T., 1908, No. 37, for defendant non obstante veredicto in case of C. G. Brandenburg et al., trading as Brandenburg & Company, v. John L. Coxe, Receiver of Keystone Wagon Works.- Assumpsit for commissions on sales.

<p>Appeal, No. 173, Jan. T., 1909, by defendant, from judgment of C. P. Northampton Co., April T., 1906, No. 40, on verdict for plaintiffs in case of Mary Ellis, Elizabeth Jones and Emily Griffith, by her next friend, J. Ruskin Jones, v. Metropolitan Life Insurance Company.</p> <p>Assumpsit on a policy of life insurance. Before Scott, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $1,839.25. Defendant appealed. ■</p> <p>Error assigned was iii admitting the policy in evidence.</p>

<p>Appeal, No. 190, Jan. T., 1909, by Laura M. Clause, from decree of O. C. Northampton Co., refusing issue devisavit vel non in Estate of Robert T. Schweitzer, deceased.</p> <p>Petition for issue devisavit vel non. Before Stewart, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was refusing issue devisavit vel non.</p>

<p>Appeal, No. 372, Jan. T., 1909, by defendants, from judgment of C. P. Franklin Co., Dec. T., 1908, No. 116, on verdict for plaintiff in case of Aaron Hostetter v. Minnie M. Cleaver and Edgar E. Lee.</p> <p>Sheriff’s interpleader under the Act of May 26, 1897, P. L. 95. Before Gillan, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff. Defendants appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Appeal, No. 380, Jan. T., 1909, by defendant, from decree of C. P. Monroe Co., Sept. T., 1909, No. 12, continuing preliminary injunction in case of Ross Common Water Company v. Blue Mountain Consolidated Water Company.</p> <p>Bill in equity for an injunction.</p> <p>On a motion to continue a preliminary ‘injunction, Staples, P. J., found the facts to be as follows:</p> <p>In the year 1883, Charles Brodhead became the owner of a tract of land in the township of Ross, county of Monroe and state of Pennsylvania. At the foot of the main range of the Blue Mountains, on the north side, a few feet above the Aquashicola creek, there has been for many years a spring of pure water. In the year 1889, the said Charles Brodhead commenced to take the water of this spring and sell it in the towns south of the Blue Mountains, and afterwards to carbonate it and make mineral waters, which sale and use have been continued without a break from that time to the present, the business having been taken over by lessees until it finally came into the hands of the Ross Common Water Company, incorporated under the laws of Pennsylvania, with a capital of originally $3,000, increased afterwards to $50,000,</p> <p>of which amount between $22,000 and $23,000 have been paid in; the said company having, in connection with the operation of its business, a large frame building, two and a half stories high, about forty by sixty feet in dimensions, fitted with the machinery necessary for the purposes of the manufacture of said waters as aforesaid; the said waters being shipped to New York, Philadelphia, Pittsburg and the leading towns within the county of Northampton. In connection with its manufacture, the persons interested did considerable advertising, both by circular and leaflets, photographs having been taken of the spring, transferred to the leaflets and these largely disseminated, until it has established a business of about 8,000 gallons per annum of pure water, and about 8,000 gallons of aerated and other mineral waters.</p> <p>The water of the said spring is confined by a stone wall built around it (with an overflow), between four and five feet wide and. about twenty-three inches in depth. No diminution was ever observed in the flow of the said spring until about November 5 or 6, when it was noticed to have gone down a couple of inches.</p> <p>In the year of 1903, the Blue Mountain Consolidated Water Company was incorporated under the laws of the state of Pennsylvania, in which were merged the following water companies, viz.: Nazareth Water Company, incorporated for the purpose of supplying water to the borough of Nazareth, county of Northampton, state of Pennsylvania; the Wind Gap Water Company, incorporated for the purpose of supplying water to the borough of Wind Gap, and the Pen Argyl Water Company, incorporated for the purpose of supplying water to the borough of Pen Argyl.</p> <p>Previous to the incorporation of this defendant company, and the merger of the said last three mentioned water companies, the Pen Argyl or the Wind Gap Water Company acquired the right to take from one of the streams of Ross township, on land within a short distance of the said Ross Common spring, water thereof to the amount of about 400,000 gallons per day, which was carried over the Blue Mountain to the said boroughs of Wind Gap and Pen Argyl; but, evidently being insufficient for the needs of the said boroughs before mentioned, which all lie on the south side of the said Blue Mountain, the said defendant company acquired a tract of land containing nine acres and eighty-four perches, and adjoining the land upon which is situate the said Ross Common spring.</p> <p>Upon this tract of land were erected a pumping station, a reservoir, etc., and there were sunk three artesian wells, known as No. I, No. 2 and No. 3; No. 1 being 240 feet from said Ross Common spring, No. 2 being 520 feet therefrom, and No. 3 being 380 feet therefrom; No. 1 being 187 feet in depth, No. 2, 227 feet in depth, and No. 3, 262 feet in depth; the diameter of the casing and pipe in No. 1 being, respectively, six and four inches, and in Nos. 2 and 3 being, respectively, ten inches and six inches. No. 1 was sunk in the fall of 1907 and winter of 1908, and commenced to be operated in the summer of 1908; No. 2 was sunk in the fall and winter of 1908 and 1909 and commenced to be operated in the spring of 1909; and No. 3 was sunk in the winter of 1909, and commenced to be operated in the summer of 1909.</p> <p>The water from these wells was pumped or forced out by compressed air, run into a reservoir and pumped over the Blue Mountain and then distributed by main pipes to the inhabitants of the boroughs of Wind Gap, Pen Argyl and Nazareth, and also to the inhabitants of three outlying townships, quarries and cement mills, for drinking and domestic purposes and also for manufacturing purposes, the amounts distributed to the persons, cement mills, etc., in the territory in proximity to Nazareth, but outside of its borough limits, being about equal to the amount used in the borough proper, it being stated by one of the officers of the company that about 400,000 gallons were needed for the borough and about 400,000 gallons for the territory in proximity thereto. There was also a large quantity of the water used in the territory in proximity to the borough of Wind Gap and Pen Argyl, but outside of the borough limits. If the water supply were shut off from the cement mills, slate quarries and the various customers outside the three boroughs, there would be sufficient surface water derived from the stream dammed in Ross township to supply the inhabitants of the said three towns, and the sinking of the wells and pumping the water from beneath the surface was due to the distributing water beyond the territory provided for by its articles of incorporation.</p> <p>After these wells were sunk and placed in operation, they were used continuously from that time until the hearing had in this case on an application for a preliminary injunction November 12, 1909, — -not all at the same time, but, as we remember the testimony, always at least two of them. The said Ross Common spring after November 5 or 6, continued to decrease in volume until it was completely dry, which was the condition of the same at the time of said preliminary hearing above stated; and in the immediate neighborhood of this spring where the ground was wet and where there were evidences of other springs, the ground was dry and these springs also.</p> <p>Upon one of the officers of the defendant company being notified of the condition of the Ross Common spring, that is to say, its decreasing in volume, pumping which had been going on at No. 1 and No. 2 was stopped at No. 1 and the waters in the spring came up almost at once, but the pumping continuing on No. 2, the spring shortly thereafter went entirely dry.</p> <p>At the suggestion of the court, the defendant company agreed to cease pumping from its said three wells, Nos. 1, 2 and 3, from six o’clock p. m., November 13, 1909, to six o’clock a. m., November 15, 1909, for the purpose of making a test as to whether or not the pumping from said wells did divert the water from the spring of the plaintiff company. Two persons were appointed by the court to make the tests every hour and also to see that no pumping was done. The result of this test was that the pumping of the said three wells ceased at six o’clock p. m. November 13:</p> <p>At 6.45 p. M. there was 1 inch of water m the spring</p> <p>“ 7.00 “ ££ were 1% inches c1 cc a</p> <p>££ 8.00 “ “ “ 6M “ cc cc cc</p> <p>“ 9.00 “ “ “ HM “ u u ÍÍ</p> <p>“ 10.00 ££ ££ “ 15M “ u u a</p> <p>“ 11.00 “ “ ££ 18M “ u u u</p> <p>“ 12.00 “ “ ££ 20 u cc cc</p> <p>“ 1.00 a.m. “ ££ 21M “ cc cc cc</p> <p>“ 2.00 “ “ ££ 21 cc cc cc</p> <p>“ 3.00 ££ “ “ 22 cc cc cc</p> <p>“ 4.00 ££ ££ ££ 22)^ ££ cc cc cc</p> <p>££ 5.00 ££ ££ ££ 23% ££ cc cc" cc</p> <p>££ 6.00 ££ ££ ££ 23 cc cc cc</p> <p>at which time the water commenced to flow over the outlet of the spring and continued to do so, the spring keeping up in its volume.</p> <p>At 9.10 a. m. November 14 the pumping was started in well No. 3 and continued until six o’clock Monday morning, when it stood one-eighth of an inch higher than when the pumping was started at nine o’clock of the day previous, overflowing from said spring; and the ground in the immediate neighborhood was wet, showing that water was also issuing out of the ground in other places than in the spring. The water also commenced to flow voluntarily from well No. 2 about two or three o’clock a. m. on Sunday and continued to flow until the two men appointed for the purpose, left.</p> <p>On the afternoon of Monday, November 15, some time after two o’clock, the court permitted the defendant company, under voluntary arrangements made, to commence pumping No. 2, and by evening the spring had gone down until it was about dry. And it clearly appeared that the pumping from well No. 3 up to the present, has not in any way affected the flow of this spring, but that pumping from Nos. 1 and 2 together or separately, does affect it, and, if continued, dries it up. Under ordinary conditions, from the experience relative to the pumping of these wells, there would be no perceptible diminution of the flow of the water in the spring in question, but this fall has been extraordinarily dry and the effect of said pumping has at least drawn so heavily upon this body of water beneath the earth that it has affected the flow of water to this spring.</p> <p>The geological formation of the earth in this vicinity is a dipping of the rocks from the south and from the north, coming together about where the Aquashicola creek is and forming at this point a basin or valley. The Ross Common spring is on the side of the rock formation dipping north and the wells of the defendant company are on the side of the rock formation dipping south, and from the appearances there is a well-defined fracture in the rocks, whereby the waters below have found an easy outlet, and the source of the supply of the Ross Common spring is a water course under the surface of the earth along the fracture zone, and so plain, that taken in connection with the tests made and the chemical analysis of the water, it may be concluded as a fact, and not as a guess, that the supply of the water of said, spring does not come from the ordinary percolations through the earth, the water seeping its way through, but comes from a well-marked and easily discernible water course, and wells Nos. 1 and 2 are driven into the same water course and, when operated, pump the water in such quantities as to divert it in a dry time from the said Ross Common spring and deprive its lessees of the use thereof, materially injuring the business of the plaintiff company.</p> <p>Error assigned was decree continuing preliminary injunction.</p>

<p>Appeal, No. 2, Jan. T., 1910, by plaintiff, from judgment of C. P. Monroe Co., Sept. T., 1908, No. 24, for defendant non obstante veredicto in case of William Henry Everett v. The Citizens’ Gas & Electric Company. Before Fell, C. J., Brown, Elkin, Stewart and Moschzisker, JJ. Affirmed.</p> <p>Trespass to recover damages for death of plaintiff’s wife. Before Heydt, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $4,750. Subsequently, the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

Appeal, No. 121, Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 3,022, on verdict for plaintiffs in case of Sarah Cohen by her husband and next friend, Abraham Cohen, and Abraham Cohen v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Magill, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for Sarah Cohen for $3,000, and for Abraham Cohen for $1,500.

Appeal, No. 402, Jan. T., 1909, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1909, No. 2,133, for defendant on case stated in suit of Lizzie M. Watson v. William J. Martin. Case stated to determine marketable title to real estate. The facts are stated in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant on the case stated.

<p>Auditor — Findings of fact — Appeals—Review.</p> <p>1. Because of Ms better opportumty to judge of the intelligence and credibility of witnesses and then knowledge of the subject under investigation, an auditor’s finding of fact from disputed testimony is entitled to great weight and should not be set aside except for very substantial reasons, but it is never binding upon the court. Where the finding is an inference from established facts the court can reach a correct conclusion quite as readily as the auditor and less hesitation is felt in reversing his finding.</p> <p>2. A court’s finding of the value of services in an amount different from that found by an auditor will not be reversed where the court’s finding is based on inferences from facts proved or admitted which showed the relation of the parties, the interests involved, the character of services, and the circumstances under which they were rendered.</p>

Appeal, No. 29, Jan. T., 1910, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1900, No. 1,029, on verdict for plaintiff in case of J. B. Gilboy, Administrator of the Estate of M. F. Corcoran, deceased, v. Duryea Borough. Issue to determine the validity of a judgment.

Appeal, No. 7, Jan. T., 1910, by-Jacob S. Wain, Executor of S. Morris Wain, deceased, from decree of O. C. Montgomery Co., Oct. T., 1909, No. 33, dismissing exceptions to adjudication in Estate of Edward Wain, deceased. Exceptions to adjudication. Before Solly, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was in affirming the adjudication.

<p>Appeal, No. 84, Jan. T., 1910, by plaintiffs, from judgment of C. P. No. 2, Phila. Co., March T., 1907, No. 3,288, on verdict for defendant in case of Abraham Levin and Esther, his wife, v. Philadelphia & Reading Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Sulzbeegee, P. J.</p> <p>At the trial it appeared that the plaintiff was injured on March 9, 1907, at Woodmont station on defendant’s railroad. The plaintiff testified that she was seated in the third seat from the door when the conductor “called Woodmont station and me sitting in the same place, and I was sitting on the same place when the train stopped and the conductor called Woodmont station, and my husband arose to go out and 1 tried to put one foot — one foot, and one train struck the other train and I fell.” The plaintiff’s husband described the accident as follows:</p> <p>“A. I went to Ninth and Spring Garden to go to Woodmont station with my brother, on a farm. When it came to Woodmont station, the conductor called out, ‘Woodmont station here,’ and the train stops. I have a graphophone in my hand and I took the graphophone and I called my wife, ‘Come down. Here is Woodmont station,’ and I stand up and wants to go and the train starts to go and stops again, and pulls one car another car. Q. What? A. One car pulls another car when she stops again, and I fall to the chair, and when I looked in the back side for my wife — she was three chairs in the back, I see she was on the floor in the back side and crying. I go to the conductor and we put her off and take her outside.”</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 242, Jan. T., 1909, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1905, No. 12, dismissing bill in equity in case of Agib Ricketts v. R. U. Capwell and Benton Coleman, Executors of Isaac B. Felts, deceased.</p> <p>Bill in equity for specific performance. Before Evans, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Judgment — Opening judgment — Findings of fact.</p> <p>Where on a rule to open a judgment, the court finds from competent testimony that the ground alleged by the defendants for opening the judgment is not sustained, the Supreme Court will not reverse the order discharging the rule, in the absence of clear error.</p>

Appeal, No. 79, Jan. T., 1910, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1906, No. 929, refusing to take off nonsuit in case of Michael Condry v. The Wilkes-Barre & Wyoming Valley Traction Company. Trespass to recover damages for personal injuries. Before Evans, P. J., specially presiding. The court entered a compulsory nonsuit which it subsequently refused to take off. Error assigned was order refusing to take off nonsuit.

<p> Practice, C. P. —Pleading—Corporation—Change of name. </p> <p>Where a corporation issues a bond of indemnity and subsequently changes its corporate name by proceedings under the Act of April 22, 1903, P. L. 251, and thereafter a'suit is brought upon the bond, in which suit the former name of the corporation is used in the body of the statement without reference to a change of name, the court will, after the expiration of the time limit for bringing the suit, permit the statement to be amended so as to set forth the new name of the company with a proper averment as to the change of name.</p>

<p>Appeal, No. 108, Jan. T., 1910, by defendants, from order of C. P. Luzerne Co., March T., 1909, No. 117, discharging rule to strike off judgment in case of Commonwealth to use of- Fritz Holznagel v. W. J. Keenan et al.</p> <p>Rule to strike off judgment.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order discharging rule to strike off judgment.</p>

<p>Appeal, No. 155, Jan. T., 1909, by plaintiffs, from judgment of C. P. Huntingdon Co., May T.,,1907, No. 11, on verdict for defendant in case of J. B. Floyd et al. v. Kulp Lumber Company.</p> <p>Ejectment for lands in Jackson township. Before Shull, P. J., specially presiding.</p> <p>The facts appear by the former report of the case in 222 Pa. 257, and in the opinion of the Supreme Court, infra.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned were various rulings on evidence and instructions.</p>

<p>Criminal law — Newspapers—Failure to publish owner’s name — Act of May 2, 1907, P. L. 157.</p> <p>1. The Act of May 2,1907, P. L. 157, is a valid exercise of the police power of the state, and is applicable to a weekly newspaper.</p> <p>2. Printing at the top of the reading matter of a newspaper the words: “Clearfield Republican, John F. Short, Editor. Clearfield Republican Publishing Company, Publishers,” is not a sufficient compliance with the act of 1907. In such case if the company is a partnership, the names of the partners should be given, if a limited partnership, the names of the partners, officers and managers, and if a corporation, the names of the president, treasurer and secretary.</p>

<p>Appeals — Interlocutory decree — Decree on citation — Order of inquest in partition— Quashing appeal.</p> <p>Neither a citation to an executor to file an inventory nor an order of inquest in partition is a final decree from which an appeal lies.</p>

Appeal, No. 294, Jan. T., 1909, by John Leahey, Executor of Michael Morricy, deceased, from order of O. C. Blair Co., 1909, No. 261, dismissing exceptions to auditor’s report in Estate of James Gardner, deceased. Exceptions to report of A. W. Porter, Esq., auditor. The facts are stated in the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to auditor’s report.

Appeal, No. 366, Jan. T., 1909, by plaintiff, from decree of C. P. Clearfield Co., Dec. T., 1908, No. 3, dismissing bill in equity in case of John II. Bierly v. W. Z. Sener. Bill in equity to declare a trust in real estate. Before A. O. Smith, P. J. Errors assigned were in dismissing exceptions to adjudication, and in dismissing the bill.

Appeal, No. 400, Jan. T., 1910, by defendant, from judgment of C. P. Blair Co., June T., 1907, No. 59, on verdict for plaintiff in case of Forrest W. Benson v. Altoona & Logan Valley Electric Railway Company. Trespass to recover damages for personal injuries. • The facts are stated in the opinion of the Supreme . Court. Verdict and judgment for plaintiff for $3,200. Defendant appealed.

Appeal, No. 11, Jan. T., 1910, by plaintiffs, from judgment of O. P. Clearfield Co., Sept. T., 1907, No. 374, for defendants on case stated in suit of C. G. Alexander to use of L. E. Boyer and Jos. F. Sprankle v. Michael Shalala and' Abraham Shalala. Case stated in ejectment for land in DuBois borough.

Miscellaneous Docket No. 2, No. 350, in case of Commonwealth of Pennsylvania ex rel. M. Hampton Todd, Attorney General, v. John I. Sheatz. Quo warranto to the defendant requiring him to show by what authority he holds possession of the office of state treasurer.

<p>Appeals, Nos. 216 and 217, Jan. T., 1909, by David C. Leech and James S. Swartz, Executors of the will of Henry S. Leech, deceased, and of David C. Leech and S. Josephine Loftus, from decree of O. C. Phila. Co., Jan. T., 1879, No. 448, sustaining exceptions to adjudication in Estate of William F. Leech, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that the testator after authorizing his executors and trustees to advance certain sums to his sons and daughters directed by his will as follows:</p> <p>“In any event, the sum or sums which may be so advanced for either of my sons, or expended for my daughter, shall be deducted by my executors in such a way from their respective shares of my estate which I am about to set apart for their benefit so that no inequality shall occur and no injustice done to any of my children for I have the same affection for each of them and desire only to do the best that can be done for their welfare.</p> <p>“I give, devise and bequeath all the rest and residue of my estate, whatsoever and wheresoever unto my executors and the survivor of them, in trust to receive the income and profits thereof, to pay the taxes thereon, to keep the real estate in repair, and to pay over one third of the net income thereof, in at least quarterly payments to my wife, for and during the term of her natural life, subject however to the limitation or condition mentioned in the third clause of this Will, and I declare the bequests contained herein, to be in lieu or bar of dower or. thirds at law in my estate. The remainder of the net income and profits thereof, is to be paid in like manner to my three children, share and share alike, during their respective lives, and to the issue of such of them as may die leaving issue (during the respective minorities of such issue) the said issue taking their deceased parents share. This property is thus to be held in trust, and these payments are to be made to and for the sole and separate use of my wife and of my children in the manner aforesaid, free from all liability for their debts, contracts or engagements, by attachment or execution or assignment or anticipation, or in any other manner whatever. After these trusts have been fully executed, then the said property shall descend and go as my estate according to the then existing laws of Pennsylvania. Provided however that if either of my sons should die leaving a widow, I direct the said Trustees to pay to such widow during life, if she shall so long remain my son's widow, such part of the income of my estate which would have been coming to such son, as he may by any last Will and Testament in writing direct and appoint.”</p> <p>Henry S. Leech, one of the testator’s sons, died leaving a will by which he appointed the sum of $5,000 a year to his widow. The balance of his share of the income was paid to his only child, Marie, during her lifetime. Marie subsequently died without issue, but leaving her husband Jameson Cotting, surviving, he being her sole legatee and administrator of her estate. Lamorelle, J., being of the opinion that the testator died intestate as to the balance of the income awarded it to his next of kin.</p> <p>Exceptions were filed to the adjudication.</p> <p>The exceptions were heard before Dallett, Lamorelle and Anderson, JJ., — the opinion of the court being handed down by Anderson, J., sustaining the exceptions filed on behalf of Jameson Cotting, awarding to him all the accumulated income and all income hereafter accruing (excepting the sum of $5,000 per year appointed to the widow of the said Henry S. Leech) and dismissing all other exceptions. The opinion of the court was concurred in by an opinion filed by Lamorelle, J., who receded from his former view that the income in question passed by intestacy. Dallett, J., filed a dissenting opinion holding the appellants, David C. Leech and S. Josephine Loftus, to be entitled to all of the said income as surviving children of the original testator William F. Leech.</p> <p>Errors assigned were in sustaining exceptions to the adjudication.</p>

<p>Negligence — Master and servant — Minor employee — Duty to instruct— Contributory negligence.</p> <p>A boy sixteen years old is not entitled to recover damages for personal injuries from his employer because of the failure of the latter to instruct him as to the dangerous character of a machine, where the evidence shows that the boy was told to gather up and carry away a pile of waste lying on the floor at the side of a carding machine with which the boy was perfectly familiar, and that in doing so he was injured by coming in contact with the cogwheels of the machine.</p>

<p>Street railways — Rates of fare — Contract with municipality — Free transfers — Change of rate — Strip tickets.</p> <p>1. Where a contract between a city and a street railway company provided “that the present rates of fare may be changed from time to time, but only with the consent of both parties hereto,” and it appears that at the date of the contract the company charged five cents for a continuous ride, sold tickets in strips at the rate of six for twenty-five cents, and gave free transfers at certain intersections issued both on cash fares and tickets, the company does not violate the terms of the contract by discontinuing the sale of the strip tickets without the consent of the city.</p> <p>2. In ordinary signification a rate of fare is the unit or basic price upon which the total charge is based. In the carrying of passengers by street railway companies the rate is fixed at a flat price per ride, without reference to the distance traveled, and this basic price for a single ride in the ordinary and legal signification of the term is the rate of fare. A total charge of twenty-five cents for six rides is not a rate of fare either in the etymological or legal sense.</p> <p>Mestrezat, J., dissents.</p>

<p>Appeal, No. 334, Jan. T., 1909, by plaintiff, from decree of C. P. No. 2, Phila. Co,, June T., 1909, No. 609, dismissing bill in equity in case of Rudolph Blankenburg v. Philadelphia Rapid Transit Company.</p> <p>Bill in equity for the specific performance of a contract and for an injunction.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 315, Jan. T., 1909, by plaintiff, from judgment of C. P. Bucks Co., Sept. T., 1906, No. 55, on verdict for defendant in case of Mary J. McCoy v. Samuel C. Niblick and William M. McCormick.</p> <p>Ejectment for land in Falls township. Before Stout, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court and also in the previous report of the case in 221 Pa. 123.</p> <p>The plaintiff presented among others these points:</p> <p>2. If the jury find that the defendant entered into the possession of plaintiff’s lands, described in the writ, without any legal conveyance thereof to him and without the consent and authority of the owner thereof, his act is tortious. He is a mere trespasser and the verdict must be a general verdict for the plaintiff without condition. Answer: Refused. [7]</p> <p>No compensation can be allowed the defendant for moneys expended by him in the management or alleged improvements made by defendant upon the plaintiff’s farm after he received notice that plaintiff, a married woman, would refuse to convey to him title of the farm. Answer: Affirmed, providing her refusal was predicated upon the refusal of her husband to join in the conveyance. [8]</p> <p>Defendant presented this point:</p> <p>4. If the jury find for the plaintiff under the evidence, they must also find what compensation, if any, the defendant is entitled to for expenditures made by him for annuity, taxes and improvements, and the amount to which defendant may be entitled constitutes an equitable lien and a right to hold possession of the land until the lien is satisfied. The jury will then find a conditional verdict. Answer: This point is affirmed, with this qualification: That she is entitled to such expenditures made by defendant before he had notice that the plaintiff would not perform her contract, because the husband would not join in the conveyance. The defendant is not entitled to a verdict for expenditures by him after he had such notice. [11]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (7, 8, 11) above instructions, quoting them.</p>

<p>Equity — Injunction—Waters—Estoppel—Mines and mining — Findings of fact.</p> <p>1. Equity will not enjoin the discharge of water from one coal basin through a tunnel into another coal basin, where it appears that the complainant gave its consent to the defendant to construct the tunnel; that the complainant’s inspector frequently went upon the ground while the work was being done; that the defendant was permitted to make heavy expenditures on the work without objection, and that the complainants had suggested a change in the direction of a channel which suggestion was adopted by the defendant.</p> <p>2. Injunctions do not always issue as a matter of right, but in many cases it is the duty of courts to take into consideration the conduct and situation of the parties in determining whether this equitable relief should be granted.</p> <p>3. Findings of fact in an equity ease by the trial judge, if based upon sufficient evidence, will not be reversed in the absence of manifest error.</p>

<p>Railroads — Agreements as to crossing — License—Basement.</p> <p>1. A grant by one railroad company to another of the right to construct a crossing over the grantor’s tracks, without containing any words indicating a grant in perpetuity or an interest in land, is a mere license, and is revocable at any time before the crossing is actually constructed.</p> <p>2. A license in respect to real estate is an authority to do a particular act or series of acts on the land of another without possessing an estate or interest therein, while an easement always implies an interest in the land in or over which it is to be enjoyed. In the grant of an easement two distinct elements are involved, a dominant tenement to which the right is appurtenant, and a servient tenement upon which the servitude is imposed. A license is in the nature of a personal privilege and may be revoked before any rights have been asserted under it, or money expended on the faith of the privilege granted.</p> <p>3. If an easement be granted in terms, or by language from which such an interest under settled rules of construction is implied, the covenants will be accordingly enforced. Where the language used is of doubtful import it is for the court to construe the instrument and determine whether the grant is of a permanent interest running with the land, or only a personal privilege affecting the rights of the parties.</p> <p>4. While licenses are usually given by parol, they may be conferred by instruments in writing. The nature and character of the grant do not depend upon the maimer of making it, nor is the rule of revocability affected thereby.</p>

<p>Appeal, No. 382, Jan. T.,1909, by Samuel Wagner, Executor of the Will of Sophia M. Ash, deceased, from decree of O. C. Phila. Co., April T., 1879, No. 248, dismissing exceptions to adjudication in Estate of James S. Duval, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that James Duval died in 1842, leaving a will dated March 22,1842. In the first nine of the ten items thereof he made specific devises of sundry parts of his real estate among his children and grandchildren, the ninth item being of a store on Market street and a house on Tenth street, Philadelphia, to his daughter Sophia M. Ash, “to be held in trust for her or her children by Samuel Wagner, but should the said Sophia die without children, then the said properties shall revert to my estate to be divided among my children or their survivors.” Four days later he executed a codicil to his will in which after making a couple of pecuniary bequests, a specific devise in favor of a grandson and a provision in relation to his son William’s share of his remaining estate, he declared it to be his will “in the event of the death of my wife Catharine that the portion of my remaining estate that may come to my daughter Sophia shall be held in trust for her by her already designated trustee.”</p> <p>The testator then proceeded, “for the prevention of-uncertainties as to the meaning and intention of the several provisions of [his] last will,” to explain each one of the nine specific devises of his will in detail. In relation to item nine he declared, “it is rny intention and I do so declare it, to give to the children of my daughter Sophia M. Ash the fee simple of the real estate therein devised to her, subject to the contingency, limitations and trusts therein mentioned, and if she should die without leaving any children then living, that the estate devised by the said clause, or by my will otherwise bequeathed to her, shall go to my surviving children, and to the issue of any of my children who may have died and to their heirs, share and share alike, .... giving however, to the husband of my said daughter Sophia, if he be living, the use and benefit of such real estate and the income of her personal estate during his natural life and no longer.” Then followed a provision in relation to item ten of the will, as follows: “Also it is my will, and I do hereby devise all the rest and residue of my estate, wheresoever situated, subject to the life estate therein of my wife Catharine Duval, to my son Lewis Duval, and to my sons-in-law, Samuel Wagner and George B. Rodney .... in trust to sell and dispose of all the said residue of my said real estate either at public or private sale .... and the net proceeds to be first applied in payment of my debts .... and the surplus of such purchase money to be distributed by the said trustees to and among my several children who may be living and to the issue of such as may have died, in shares according to the number of those living and those who have died leaving issue equally.”</p> <p>The real estate was afterwards sold, and the share of Sophia M. Ash in the proceeds is the fund for distribution in this case.</p> <p>In 1858, the trustees filed their account in the orphans’ court, and it was referred to John M. Collins, Esq., as auditor. The auditor awarded the share of Sophia M. Ash to Samuel Wagner in trust for her; and on confirmation of the report of the auditor by the orphans’ court, the share was paid to Samuel Wagner, in trust for her. Samuel Wagner died in 1879, and on June 6, 1896, the Real Estate Trust Company was appointed trustee in his place by the orphans’ court. Sophia M. Ash died May 2, 1909, having survived her husband, leaving a will whereof she appointed Samuel Wagner (son of the Samuel Wagner above named), sole executor. The Real Estate Trust Company duly filed its account as trustee in the orphans’ court. At the audit the fund was claimed by the executor of Sophia M. Ash, but the claim was disallowed by the auditing judge, and the fund awarded to the several children of the testatrix.</p> <p>The court in an opinion by Dallett, J., with a dissenting opinion by Penrose, J., sustained the adjudication by Anderson, J., awarding the fund for distribution to all the children of Sophia M. Ash in equal shares.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 65, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., June T., 1905, No. 3,206, on verdict for plaintiff in case of Jennie Amos v. Delaware River Ferry Company of New Jersey.</p> <p>Trespass to recover damages for personal injuries. Before Martin, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>At the trial the court admitted under objection and exception evidence as to the costs of electrical treatment. [1, 2]</p> <p>The court charged in part as follows:</p> <p>[Dr. Franklin, the visiting surgeon at St. Joseph’s Hospital, testified that he had seen her three or four times during the last three or four years; for three years she had continued to get worse; he did not look for any improvement, and, in his opinion, the injury was the cause of her condition. The best means of treatment, in his opinion, would be massage, four or five times a week, which would cost an average of $1.00 a treatment. He said that sometimes electric treatment had been beneficial, but he had not found much benefit from it in these cases, and could not say whether or not it would be desirable in this case, but that if such treatment was employed he would recommend the application once or twice a week, which would cost $1.00.] [3]</p> <p>[If the evidence satisfies you that the injury permanently disables her you may regard her age and her probable duration of life and working capacity with a view of forming your judgment as to what amount she would have been able to earn if she had not suffered this injury, and that sum and no more should be awarded to her. She would not be entitled to an amount which invested would yield at interest the loss in earnings, but only such sum as will equal the money she would have earned if the injury had not occurred.] [4]</p> <p>[The plaintiff testified that she saw there was no gang plank. The negligence charged by the plaintiff is that the persons in charge of the boat should have secured it-in such a manner as to prevent it from surging back.] [5] Defendant presented these points:</p> <p>1. The plaintiff in this case having alleged that it was negligence on the part of the defendant to fail to supply a gang plank for the purpose of permitting her to disembark from the ferryboat when it. was tied up in the dock at Kaighn’s Point, must first prove that the proper and careful means for the disembarking of passengers from a ferryboat by other companies operating ferryboats is to place a gang plank at the exits for that purpose. The mere absence of a gang plank at the time of this accident raises no presumption of negligence. Answer: Refused. [6]</p> <p>2. The presence or absence of a gang plank from the ferryboat to the dock has no bearing upon the negligence of the defendant until the plaintiff has first proved by competent evidence the necessity for a gang plank in the exercise of the duty owed by the defendant company to her as a passenger, and you must, therefore, disregard any evidence in this case concerning its absence in finding whether or not there was negligence on the part of the defendant. Answer: Refused. [7j</p> <p>5. If you believe from the evidence in this case that the plaintiff saw or could have seen the motion of the ferryboat, in the manner described by the witnesses, she was guilty of contributory negligence in not stepping from the boat to the dock carefully, because she had knowledge of the danger at that point, and her own negligence is an element which contributed to her injury, so that you must find a verdict for the defendant. Answer: Refused. [8]</p> <p>6. Under all the evidence in this case your verdict must be for the defendant. Answer: Refused. [9]</p> <p>Verdict and judgment for plaintiff for $8,000. Defendant appealed.</p> <p>Errors assigned were (1, 2) ruling on evidence and (3-9) above instructions, quoting them.</p>

<p>Principal and surely — Bond to secure contract — Variance from contract — Release of surety.</p> <p>1. Where a bond issued by a surety company refers to an agreement between the principal in the bond and the obligee, and recites so much of the agreement as relates to what the principal had engaged to do, and for the performance of which the surety had become liable, a variance in the performance of the contract from that portion recited in the bond will discharge the surety, if it appears that the ability of the principal to perform his part of the contract had been thereby materially lessened, and the risk of the surety correspondingly increased.</p> <p>2. The interest of a surety in an earlier contract between the principal and the obligee to which the surety is not a party can arise only at the point where the liability of the surety is touched, and where such liability is touched, it must be in connection with something material before the variance from the contract can be made available as a defense to the bond.</p> <p>3. The doctrine that a surety is a favorite of the law, and that a claim against him is strictissimi juris does not apply where the bond or undertaking is executed upon a consideration by a corporation organized to make such bonds or undertakings for profit. While such corporations may call themselves “surety companies” their business is in all essential particulars that of insurance. Their contracts are usually in the terms prescribed by themselves, and should be construed most strictly in favor of the obligee.</p> <p>4. In an action on a bond given to secure the performance of a contract where the principal claims that the obligee, the other party to the contract, had released him from all obligation to complete the work contemplated by the contract, and this claim is disputed and denied, the contention raised by the conflict of evidence must be passed upon as a question of fact by the jury.</p>

<p>Appeal, No. 394, Jan. T., 1909, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1908, No. 372, on verdict for plaintiffs in case of Howard R. Reimard and Cora A. Reimard v. Blooms-burg & Sullivan Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, P. J.</p> <p>Plaintiff had her knee injured by tripping and falling while walking on a railroad track. The circumstances preceding the accident appear in the opinion of the Supreme Court.</p> <p>Verdict and judgment for Cora A. Reimard for $2,000 and for Howard R. Reimard for $500. Defendant appealed.</p> <p>Errors assigned among others were refusal of binding instructions for defendant, the refusal to charge that the act of the railroad company was not the proximate cause of the accident, and that the charge was inadequate on the subject of the plaintiff’s poor physical condition or state of health prior to the accident.</p>

<p>Wills — Construction—Vested and contingent estates — Grandchildren.</p> <p>1. Where a testator creates a trust for the benefit of his children for life, and directs his trustees, upon the death of the last child “to pay over and distribute,” the estate to all his grandchildren and the issue of such as may be dead “such issue to take the share the parent would have taken if living ” at the time of distribution, the interest of a grandchild who dies before the time for distribution, is contingent and not vested. .</p> <p>2. Where a direction in a will to pay or divide constitutes the bequest, the vesting of the interest itself is postponed, and not merely the possession or enjoyment of it. .</p>

<p>Negligence — Damages—Husband and wife--Services of wife.</p> <p>Recovery by a husband for the loss of the services of his wife includes not only services in the ordinary sense of the word but the assistance and comfort which under the circumstances he would receive from her; and the recovery for his loss is not limited to the period before suit was commenced.</p>

<p>Negligence — Independent contractor —■ Evidence — Contract—Question for fury.</p> <p>A contractor to place machinery and erect a smokestack sublet the building of the smokestack to another person. The contract between them was partly in writing and partly oral, and there was a dispute in relation to the oral part of it. A man in the employ of the owner of the property was injured by the fall of material in the building of the stack. In a suit brought by the injured man against the contractor there was evidence tending to show that while the subcontractor furnished men and machinery, the whole control and management of the work was under the charge of the contractor. Held, that the case was the jury, and that a verdict and judgment for the plaintiff should be sustained.</p>

<p>Wills — Construction—Income—Support and maintenance — Annuitant.</p> <p>Where a testatrix directs her executors to pay an annuitant $25.00 per month for life “and to keep sufficient funds invested therefor, and in case of sickness, if the said sum is not sufficient for his maintenance” to pay such additional sum as in their judgment may be necessary, and the executors file an account some years after the death of the testatrix, showing a balance on hand of over $41,000, of which over $10,000 was accumulated income, and the orphans’ court directs $15,000 to be invested for the annuitant, and distributes the balance to the residuary legatee, such action of the court will not be reversed on appeal, where there is nothing in the will to indicate that the whole fund was to be retained for the protection of the annuitant.</p>

<p>Appeal, No. 335, Jan. T., 1909, by Walter J. Skeels, from decree of O. C. Erie Co., Nov. Term, 1907, No. 31, dismissing exceptions to auditor’s report in Estate of Esther A. Skeels.</p> <p>Exceptions to report of Alfred B. Osborne, Esq., auditor. Before Prather, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was "in determining that the statute of limitations is a bar to the right of the claimant to recover in this case.”</p>

<p>Appeal, No. 98, Jan. T., 1910, by H. O. Gibson, from decrees of O. C. Erie Co., Feb. T., 1908, No. 21, and May T., 1909, No. 15, dismissing exceptions to auditor’s report in Estate of Perry A. Gibson, deceased.</p> <p>Exceptions to report of J. M. Force, Esq., auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

Appeals, No. 10, Jan. T., 1910, by plaintiffs and No. 83, Jan. T., 1910, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 2,058, dismissing bill in equity in case of John McLure Hamilton, Ethel H. Lucas and the Provident Life & Trust Company, trustees under the will of Lydia I. Biddle, deceased, v. The John C. Mercer Home for Disabled (’¡ergymcn of the Presbyterian Faith. Bill in equity to declare failure of a charitable trust.

<p>Appeal, No. 191, Jan. T., 1909, by defendant, from judgment of C. P. McKean Co., Dec. T., 1906, No. 140, on verdict for plaintiff in case of James Taylor v. Welthia A. Taylor.</p> <p>Ejectment for land in Annin township. Before Lindsey, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>The question which we have here, as we understand it, is which obtained the better title? And we are of opinion that if the treasurer’s sale for the 238 acres to the commissioners of McKean county was first in time on that date, namely, September 23, 1890, no matter how short the time it preceded the title to the commissioners to the 112 acres, and your verdict must be for the plaintiff for the premises described in the writ.</p> <p>If you find that the sale of the 238 acres was made first before the sale of the 112 acres, no matter how short a time, the plaintiff would get the better title. When the sale of the 238 acres was made on September 23, 1890, based on the taxes of 1888, as soon as it was made the purchaser would take what is termed an inchoate title, which ripened into a perfect title at the end of the time allowed by law for redemption. And I call your attention here to the fact that the deed from S. S. Bullis to the defendant described the defendant’s 126 acres fully, and has been identified here on the map, and thus this sale that was made of the 238 acres did not vest any title in the 126 acres, but did carry the title — passed the title to the balance of the land or the 112 acres of land.</p> <p>The taxes were paid on the 126 acres of land and that was defined by the deed, easily defined, so that the balance on which the taxes were not paid could be easily ascertained, and has been identified as the 112 acres in the north part or north of that diagonal line pointed out on the map.</p> <p>Now, if you believe that the sale of this piece of land preceded in time the sale of the 112 acres to the commissioners, which was conveyed by the commissioners, and by sundry deeds, vested in the defendant, no matter how short that time might be, if it was sold first, the plaintiff in our opinion, and we so instruct you, would obtain the better title, and would be entitled to recover.</p> <p>Now, as to that there is no dispute as to the evidence. The deputy treasurer who attended to the sales at that time, testified that it was first on the list, and they commenced at the head of the list and followed the order; that the pieces were put on the sales list, and that the 238 acres were sold first before the 112 acres. And if you believe this evidence your verdict should be for the plain- , tiff in this case. There is no dispute as to that testimony, and unless there is some reason why you should not believe the deputy treasurer in this case, why then, your verdict should be for the plaintiff, and after we have answered the points in the case we will leave this question to you, the only question which you have to decide.</p> <p>Verdict and judgment for plaintiff. Defendant appealed.</p> <p>Error assigned among others was portion of charge as above, quoting it.</p>

<p>Appeal, No. 316, Jan. T., 1909, by plaintiffs, from judgment of Superior Court, April T., 1909, No. 31, reversing decree of C. P. Warren Co., March T., 1908, No. 41, granting injunction in case of F. H. Rockwell & Company v. Warren County and C. S. Keefer, Treasurer.</p> <p>Appeal from Superior Court. See 39 Pa. Superior Ct. 468.</p> <p>Error assigned was judgment of the Superior Court.</p>

<p>Negligence — Master and servant — Contributory negligence.</p> <p>In an action by an employee against Ms employer to recover damages for personal injuries, the question of the plaintiff’s contributory negligence is for the jury where the evidence tends to show that the plaintiff was ordered to work in the near vicinity of moving macMnery without a guard around it, and that he had not been warned of the danger or given any instructions as to the macMnery.</p>

<p>Will — Family agreement — Decedent’s estate — Fee simple estate — Life estate.</p> <p>A widow who has been given a fee simple estate under one will of her husband, is not deprived of such estate by entering into an agreement with her husband's heirs, by which a later will is set aside, and by which she agrees that if any estate or property of the decedent, “which becomes hers by virtue of said last will and testament hereby authorized and directed to be proven, shall remain after her death, the same shall become the property of and pass to” the heirs of the decedent.</p>

<p>Appeal, No. 1, Jan. T., 1910, by plaintiff, from judgment of C. P. Mifflin Co., May T., 1908, No. 105, on verdict for defendant in case of William G. Smith v. Peter Dreyer.</p> <p>Assumpsit to recover a balance alleged to be due on.a contract. Before Wools, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was the refusal to' admit a memorandum and note.</p>

<p>Appeal, No. 140, Jan. T., 1910, by plaintiff, from decree of C. P. Fayette Co., No. 568, in equity, dismissing bill in equity in case of Anna Clara Humbert v. West Penn Railways Company.</p> <p>Bill in equity for an injunction and for specific performance. Before Umbel, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Equity — Findings of facts — Review—Appeals.</p> <p>The appellate court will not interfere with a chancellor’s findings of facts made on sufficient evidence unless he is convicted of clear and manifest error.</p>

<p>Appeal, No. 83, Oct. T., 1910, by W. A. McAdoo, from order of C. P. Armstrong Co., March T., 1910, No. 157, dismissing petition in election contest In re Election of Willis D. Patton, President Judge of the Thirty-Third Judicial District.</p> <p>Petition in election contest. Before Galbraith, P. J., Wilson, P. J., and Telford, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing the petition.</p>

<p>Wills — Charitable bequests — Variation of terms — Equity—Church law.</p> <p>1. Under the general jurisdiction of a court of equity to administer a charity, it has power to vary the precise terms of the charitable bequest so far as is necessary to carry out the general charitable intent.</p> <p>2. The requirements of a will providing for the establishment of a University of the New Jerusalem, to be founded in the consolidated city of Philadelphia, to teach, and to train New Church ministers in, the doctrine of the New Jerusalem, as laid down in the writings of Swedenborg, are fulfilled by the establishment of an institution with buildings located in the immediate vicinity although not within the corporate limits of Philadelphia, the teachings of which are based on the writings of Swedenborg; and it is immaterial that such institution was founded by a sect of Swedenborgians not in existence at the time of testator’s death, inasmuch as the gift was not to a denominational church, or to any subordinate body of such church.</p> <p>Wills — Charitable■ bequests — Religious institutions — Doctrine—Public policy.</p> <p>■ 3. Although the writings upon which the doctrines of a religious institution are based may be susceptible of a construction which would make them obnoxious to certain common standards of morality, a bequest to such an institution will not be defeated as against public policy where it does not appear that such writings constitute any part of the religious doctrines of the church, at least not with that interpretation put on them which would make them offend.</p>

<p>Negligence — Master and servant — Fellow servant — Steam vessels— Engineer and oiler — Admiralty.</p> <p>1. In the absence of direct authority to represent the owner, the chief engineer of a vesselis the fellow servant of an oiler.</p> <p>2. An oiler on a steam yacht who is injured by slipping on an alleged defectively guarded platform and who admits that he voluntarily continued to work on the platform after he knew from experience that it was dangerous is not entitled to recover against the owner of the vessel by reason of a promise to “fix” the platform given to him by the engineer.</p>

<p>Appeal, No. 221, Jan. T., 1909, by plaintiffs, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 1,324, on verdict for defendant in the case of Isabella Fane, by her father and next friend, James H. Fane, and James H. Fane, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover for personal injuries. Before Brégy, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendant.</p> <p>Errors assigned were in sustaining defendant’s objections to the admission of evidence as to the ordinances and rules of the company mentioned in the opinion of the Supreme Court.</p>

<p>Wills — Signature, “at the end thereof” — -Act of April 8, 1883, P. L. 849 — Probate. 1. The end of a will under the statute requiring wills to be signed “at the end thereof” is the logical end of the testator’s disposition of his property, wherever that end manifestly appears on the paper, and not the point which is spatially farthest removed from the beginning.</p> <p>2. Where an inspection of a will shows that the testatrix, after having written the first page, skipped the second, proceeded to the third, and, having reached the bottom of it, returned to the second, and, when she had completed the disposition of her estate at about the middle of the second page, signed her name there in the presence of two witnesses, the will is signed “at the end thereof” within the meaning of the statute.</p>

<p>Appeal, No. 46, Jan. T., 1909, by plaintiffs, from judgment of C. P. Lebanon County, March T., 1907, No. 93, on verdict for defendant in case of George Gress and Mary, his wife, v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for death of two children. Before Ehrgood, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Adverse possession — Statute of limitation — Lands owned by railroad not part of right of way.</p> <p>1. Land purchased by a railroad company outside of its rights of way, for railroad purposes generally, not present but prospective, is subject to the statute of limitations, and title to it may be acquired as against the company by adverse possession.</p> <p>2. In an action of ejectment by a railroad company to recover possession of a strip of land lying along its right of way acquired by purchase and never appropriated for railroad purposes, evidence by defendant of twenty-four years’ adverse possession is competent and material.</p> <p>Evidence — Title to unseated lands — Tax deeds — Claimant by adverse possession.</p> <p>3. Where in an action of ejectment a link in plaintiff’s title is a treasurer’s deed which recites the sale for taxes of a large tract of unseated land embracing the lot in dispute, and there is no evidence offered of a valid assessment of the lands, the defendant claiming title only through adverse possession, is not in position to demand higher proof of an assessment than the deed itself.</p>

<p>Sales — Principal and agent — Limitations on authority — Shares of stock.</p> <p>1. Where a pledgee or purchaser takes stock with notice of the capacity in which an agent holds, he cannot deny the right of the principal therein.</p> <p>2. A purchaser of shares of stock from a known special agent is bound to ascertain the nature and extent of the agent’s authority, and is not entitled to rely upon the agent’s possession of a certificate, with an assignment and power of attorney to transfer, and a telegram from the principal containing the expression “if you can’t sell, borrow.” Wood’s App., 92 Pa. 379, distinguished.</p> <p>3. If in such a case the purchaser, with full knowledge of the ownership of the stock, pays ten cents a share for it, when inquiry would have shown him that the agent had been instructed to sell it to another party for fifty cents a share, equity will compel him to reassign the stock to the owner upon repayment of the amount paid to the agent with interest.</p>

<p>Appeal, No. 336, Jail. T., 1909, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1909, No. 3,053, refusing a writ of mandamus in case of Joseph Madden v. Robert J. Moore, Harry D. Beaston and Frank J. Gorman, city commissioners.</p> <p>Petition for writ of mandamus. Before Staake, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree of court.</p>

<p>Railroads — Rates—Passenger traffic — Act of April 5,1907, P. L. 59— Constitutional law — Corporations—Alteration of charter.</p> <p>Where a railroad company is prosecuting its passenger traffic at a loss, and it is within the power of the company to reduce this loss by charging rates to passengers in excess of the requirements of the Act of April 5, 1907, P. L. 59, but within the limit which the law would otherwise permit, and in this manner the company can more nearly approach a reasonable and proper return upon its capital, the company will be relieved from the duty of compliance with the act of 1907, under the protection afforded by the constitutional provision to the effect that the legislature can alter or annul an existing charter only in such manner that no injustice shall be done to the incorporators.</p>

<p>Appeal, No. 20, Jan. T., 1910, by Fidelity Trust Company and Walton Pennewill, surviving executors, from decree of O. C. Phila. Co., July T., 1898, No. 56, dismissing exceptions to adjudication of fifth account in Estate of Andrew M. Moore, deceased.</p> <p>Exceptions to adjudication of Lamorelle, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>2. Courts are not disposed to look with favor upon attempts to question a private settlement between partners which are not made promptly. Hence, if a partner, or one claiming through him, permits a settlement to stand for a long time unquestioned, his laches will bar an action to open it or set it aside, unless the delay is satisfactorily explained.</p> <p>Appeals, Nos. 12 and 13, March T., 1910, and No. 101, Jan. T., 1911, by Henry G. Moore et al., from decree of O. C. Phila. Co., July T., 1898, No. 56, dismissing exceptions to adjudication in Estate of Andrew M. Moore, deceased.</p> <p>Exceptions to adjudication of fifth account of executors.</p> <p>The facts appear in the opinion of the Supreme Court and in Moore’s Estate, ante, p. 516.</p>

Appeal, No. 91, Jan. T., 1910, by defendant, from order of C. P. Luzerne Co., Oct. T., 1908, No. 1,180, making absolute rule for judgment for want of a sufficient affidavit of defense in case of George Lazarus et al. v. Lehigh & Wilkes-Barre Coal Company. Assumpsit for value of coal mined. Before Garman, J. The facts appear in the opinion of the Supreme Court. Error assigned among others was in making absolute rule for judgment for want of sufficient affidavits of defense.

<p>Will — Charitable devise — Act of April 26, 1855, P. L. 828 — Attesting witnesses — Disqualifying interest — Officers of charity.</p> <p>Where a will includes a number of legacies and a general residuary-devise for charitable purposes, and two of the three attesting witnesses are connected with one of the charities benefited, in the capacity of trustees, while the third witness is an officer in several of the religious and charitable organizations benefited, the witnesses are disqualified under the act of 1855 and the charitable gifts fail.</p>

<p>Wills — Charitable bequests — Attesting witness — Disqualifying interest —Act of April 86,1856, P. L. 388.</p> <p>1. Interest which under the act of 1855 disqualifies a witness from attesting a will containing religious or charitable bequests must be a present, certain and vested one. It must not be uncertain, remote or contingent.</p> <p>2. An attesting witness to a will is not so interested as to be disqualified under the act of 1855 because the testatrix directs a company, of which the witness is a stockholder and vice president, to pay the dividends on certain shares of its stock to a charity, upon the latter’s fulfilling certain conditions.</p>

<p>Negligence — Fire—Jumping from burning building — Proximate cause.</p> <p>In a suit to recover damages for personal injuries received in an attempt to escape from a burning hall a recovery will be set aside where the evidence of plaintiff shows conclusively that the proximate cause of the accident was not the alleged negligence of defendant in failing to provide a proper egress from the hall but a blow from a chair, thrown by an unknown person, which stunned plaintiff and prevented her from using the main stairs in front, by which everybody else in peril escaped.</p>

<p>Appeal, No. 168, Jan. T., 1909, by Jane Miller, defendant, from decree of C. P. Hunting-don Co., May T., 1908, No. 148, confirming return of sale in case of J. G. Lincoln and C. H. Glazier v. Lena Africa, J. Stewart Africa, Jane Miller and W. M. Miller.</p> <p>Bill in equity for partition. Before Woods, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree confirming return of sale by the master.</p>

<p>Appeals, No. 371, Jan. T., 1909, by plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1907, No. 4,210, in case of Chester E. Albright v. Chester E. Albright, Jr., and William L. Albright.</p> <p>Bill in equity for an accounting and to obtain possession of a factory and business. Before Sulzberger, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court directing an accounting of profits between the plaintiff and the defendants.</p>

<p>Equity — Ownership of business — Profits—Accounting.</p> <p>Where a bill in equity is filed by a father against two of his sons to regain possession of a business, and for an accounting of profits, and the lower court enters a decree in favor of the father as to the ownership of the business, and in favor of the sons as to a share in the profits thereof, the appellate court in reversing the decree in favor of the sons will direct that it shall be without prejudice to them to assert any legal claim they may have for services or otherwise arising out of their relations with the business.</p>

<p>Real estate — Practice, O. C. — Partition—Inquest-—Confirmation of return — Act of March 29,1832, P. L. 190.</p> <p>1. A failure to confirm the return of an inquest in partition is fatal to any subsequent proceedings in the case.</p> <p>2. Where an inquest in partition, as returned by the sheriff’s jury, is never confirmed, as provided by the Act of March 29, 1832, sec. 36, P. L. 190, a rule upon the heirs to accept or refuse the real estate is irregularly awarded.</p>

<p>Appeal, No. 397, Jan. T., 1909, by defendant, from judgment of C. P. Clearfield Co., Sept. T., 1906, No. 74, on verdict .for plaintiff in case of Robert A. Jackson v. The Pennsylvania Railroad Company.</p> <p>Trespass for damages under the act of 1883. Before A. O. Smith, P. J.</p> <p>The facts are set out in the opinion of the Supreme Court.</p> <p>Plaintiff presented, inter alia, the following points:</p> <p>5. That the measure of plaintiff’s damages is the difference between the cost of mining and delivering the coal in railroad cars, adding thereto the royalty paid, and the fair average selling price prevailing in the region where his mine was situated, during the period extending from March 26, 1902, and August 4, 1905, both inclusive, for all coal which the jury find from the evidence the plaintiff could have been reasonably able to mine and sell, except for the refusal of the defendant company to furnish his due proportion of all the cars available. Answer: Affirmed. [1]</p> <p>6. That if the jury find from the evidence that the refusal of the defendant company to furnish cars to the plaintiff was undue and unreasonable, and also find from the evidence that the plaintiff suffered loss or damage, then the jury must ascertain how nmch loss or damage the plaintiff sustained, and having ascertained the amount of single damages they may multiply the same by three or treble the amount and return a verdict for the treble or threefold amount. Answer: Affirmed. [2]</p> <p>Defendant presented these points:</p> <p>1. That under the pleadings and evidence the plaintiff is not entitled to recover and the verdict must be for the defendant. Answer: Refused. [3]</p> <p>3. It appears by the uncontradicted evidence in the case that plaintiff received from June 1, 1902, to June 1, 1903, covering the whole period of high prices, cars greatly in excess of his pro rata share, and as his claim is based upon a deficiency during the whole period and not during a specified part thereof only, the high prices received by him during the period named must be taken into account in attempting to discover if he sustained any loss, and there is no such evidence of loss during the remaining period as to justify a finding of any amount in his favor and the verdict must be for the defendant. Answer: This point is also refused. It would be asking the court to give binding instructions to the effect that the verdict must be for the defendant, because during a period of high prices it would appear by pretty plain evidence, at least, that he got more than his pro rata share would entitle him to. We leave that whole question for the jury, as to whether or not if orders were given for cars during the entire period and he would therefore be entitled, say to 760 cars, according to my calculation, and did not get that many, you should find that he was discriminated against. That is entirely, as we look at it, for the jury, governed, however, by one of the facts, if you find it to be a fact, that during that high priced period he did get a large proportion of cars more than he was entitled to, as affecting whether or not he was in fact damaged at all. [4]</p> <p>4. There was no duty upon the defendant company to place cars at plaintiff’s mine except upon orders made by him and then only for his pro rata share, and there is no sufficient evidence to so impeach the daily record of the orders made by the plaintiff, which record was made at the time, as to warrant the jury in finding a verdict that orders were made by plaintiff which appear by the record supplemented by the testimony of the train master not to have been made, and as there is no claim here except as based upon such allegation, there can be no recovery and the verdict must be for the defendant. Answer: Refused. [5]</p> <p>Verdict for plaintiff for 1705.87, single damages, on which judgment was entered for $2,117.51, treble damages. Defendant appealed.</p> <p>Errors assigned were (1-5) above instructions, quoting them.</p>

<p>Appeal, No. 398, Jan. T., 1909, by defendant, from judgment of C. P. Clearfield Co., Dec. T., 1906, No. 296, on verdict for plaintiffs in case of John H. Minds anfi William R. Minds, copartners, trading as the Chestnut Hill Coal Mining Company v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for discrimination in furnishing transportation facilities. Before Smith, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Errors assigned were charge of the court and answers to points.</p>

Appeals, Nos. 104 and 105, Jan. T., 1910, by plaintiffs, from decrees of C. P. Clear-field Co., Dec. T., 1907, Nos. 1 and 2, dismissing bills in equity in cases of Samuel Swift, next friend of Verda Clark et al., v. Harbison-Walker Refractories Company et al. and Ida Mary Swift and Lulu DeLeon v. HarbisonWalker Refractories Company et al. Bill in equity for appointment of a receiver and an accounting, and that plaintiffs be declared owners of an undivided interest in certain…

<p>Appeal, No. 381, Jan. T., 1909, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1909, No. 600, for want of a sufficient affidavit of defense in case of the National Aniline & Chemical Company v. American Credit Indemnity Company of New York.</p> <p>Assumpsit on an indemnity bond. Before Brjégy, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for want of a sufficient affidavit of defense.</p>

<p>Wills — Vested and contingent estates — Construction—Children.</p> <p>1. In cases of doubtful construction the law leans in favor of an absolute, rather than a defeasible estate; of a vested, rather than a contingent one; of the primary, rather than the secondary intent; of the first, rather than the second taker, as the principal object of the testator’s bounty; and of a distribution as nearly conformed to the general rules of inheritance as possible.</p> <p>2. The question of vested or contingent is not to be tested by the certainty or uncertainty of obtaining the actual enjoyment; for that would make the character of the estate depend, not upon the terms of its creation, but on the form of the result. Neither does it depend upon the defeasibility or indefeasibility of the right of possession; for many estates are vested without possession, as well as with, which are yet defeasible. If there is a present right to a future possession, though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested, if it is certain to take effect in possession, by enduring longer than the precedent estate.</p> <p>3. In Pennsylvania a person sui juris owning a contingent interest in land or in personal property, may sell the same to one who does not stand towards him in a trust relation and who does not impose upon him for any sum agreed upon between them.</p> <p>4. It is the well established rule of construction in this state, as well as elsewhere, that the word “children” in a will does not include grandchildren, unless it appears from the context to have been so intended by the testator, or such meaning is necessary to carry out his manifest intent.</p> <p>5. Testator gave all the residue of his estate, real and personal, to a trustee in trust for the period of twenty years with large and ample powers in the trustee to manage, invest and reinvest the same. He also directed as follows: “I further provide and direct that when there is a greater accumulation than he deems necessary for the purposes of this trust he shall divide the same into six equal shares, paying one share to each of my five children and one share to be divided amongst the children of my deceased son. And if any of my children should die without leaving lineal descendants before the expiration of twenty years after my decease, then such share shall go to the other legatees share and share alike — parties taking per stirpes and not per capita. At the termination of twenty years the said trustee shall sell said real and personal property and divide the same in six shares to be distributed as is provided with reference to income of same.” Held, (1) that the residuary estate went to the person interested, as personalty; (2) that all the legacies were vested; (3) that the legacies to the “children” of the testator were subject to be divested by death within twenty years without leaving lineal descendants, and (4) that the legacies to the children of the deceased son were vested absolutely and unconditionally and that the administrator of a deceased daughter of the deceased son was entitled to share in a distribution of income.</p>

<p>Appeal, No. 284, Jan. T., 1910, by defendant, from judgment of C. P. Crawford Co., Feb. T., 1908, No. 79, for plaintiff on case stated in case of Crawford County Street Railway Company v. City of Meadville.</p> <p>Case stated in assumpsit. Before Bouton, P. J., specially presiding.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was judgment of the court on case stated.</p>

<p>Appeal, No. 370, Jan. T., 1909, by plaintiff, from judgment of C. P. Cumberland Co., Nov. T., 1909, No. 50, on verdict for defendants in case of H. A. Surface v. John M. Bentz, A. W. Bentz et al., heirs of William Bentz.</p> <p>Issue devisavit vel non. Before Sadler, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Plaintiff requested the court to charge, inter alia, as follows:</p> <p>6. If at the time of making the alleged will or republishing the same, the testator was sound in mind and knew the business in which he was engaged, then it is immaterial whether he was mentally unsound or delirious or unconscious before or after the time of the making of said will. Answer: We cannot instruct you, under all the evidence, that it is immaterial in this controversy whether William Bentz was mentally unsound or delirious or unconscious before or after the making of the will in controversy; the crucial question is, what was his condition and what occurred on March 3, 1910, when the will was executed by William Bentz. That is what you must consider.</p> <p>Verdict and judgment for defendants.</p> <p>Errors assigned among others were refusal to withdraw juror, and (3) in refusing plaintiff’s sixth point, as above.</p>

<p>Appeals, Nos. 81 and 82, Jan. T., 1910, by plaintiffs, from decree of C. P. No. 4, Phila. Co., March T., 1905, No. 1,981, dismissing bill in equity in case of Catharine A. Connor, individually and as administratrix, etc., and Cecilia C. Callahan et al. v. John J. Gibbons, Sarah J. Gibbons being substituted as defendant.</p> <p>Bill in equity for conveyance of title and an account.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of court dismissing the bill.</p>

<p>Appeal, No. 38, Jan. T., 1910, by defendant, from judgment of C. P. Lycoming Co., Dec. T., 1908, No. 130, on verdict for plaintiff in case of William H. Berryman v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $4,750. Defendant appealed.</p> <p>Error assigned among others was in the refusal of binding instructions for defendant.</p>

<p>Appeal, No. 268, Jan. T., 1909, by plaintiff, from judgment of C. P. Tioga Co., Nov. T., 1907, No. 132, for defendant on case stated in suit of Edward B. Dorsett v. Tioga County.</p> <p>Action for mileage on a case stated. Before Ormerod, P. J., specially presiding.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was the judgment of the court for de- . fendant on case stated.</p>

Appeal, No. 106, Oct. T., 1910, by defendant, from judgment of O. & T. Cambria Co., June T., 1909, No. 14, on verdict of guilty of murder of first degree in case of Commonwealth v. Joseph Chapler. Indictment for murder. Before O’Connor, P. J. The opinion of the Supreme Court states the case. The defendant presented these points: 1.

Appeal, No. 314, Jan. T., 1909, by plaintiff, from judgment of nonsuit of C. P. McKean Co., June T., 1908, No. 157, in case of Mrs. David Sloppy v. The Pennsylvania Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Before Ormerod, P. J., specially presiding. The facts appear in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

Appeal, No. 43, Jan. T., 1910, by defendant, from judgment of C. P. Elk Co., Jan. T., 1908, No. 130, on verdict for plaintiffs in case of Charles O. Salberg and Herbert T. Morey, doing business as Ridgway Grain Company, v. The Pennsylvania Railroad Company. Assumpsit against a carrier for misdelivery of goods. Before Hall, P. J. The facts appear in the opinion of the Supreme Court.

Appeal, No. 49, Jan. T., 1910, by plaintiffs, from decree of C. P. Elk Co., April T., 1909, No. 1, dismissing bill in equity in case of Fred Koehler; Fred Koehler, guardian of Anna Belle Blass; Fred Koehler and E. W. King, trustees for Ida B. Clover, Florence M. Magenau, Ida S. King, and Anna Belle Blass; C. M. Conrad, F. A. Brevillier and Adolph L. Curtze v. St. Mary’s Brewing Company, William Kaul, John Kaul, J. K. P. Hall and George C. Simons.