Volume 229 — Pennsylvania State Reports

<p>Municipalities — Boroughs — Annexation — Building lots — Sewers—■ Contracts — Voidable contracts — Ratification.</p> <p>1. A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers, which are within the scope of corporate powers.</p> <p>2. Where as an incident of the annexation oí a tract of building lots, including a private sewerage system, to a borough a written agreement is entered into between the owner of the lots and the borough authorities whereby the sewer is to pass under the control and ownership of the borough subject to the exemption of certain of the lots from any sewerage connecting charge, the borough cannot, after decree of annexation and acceptance of the sewer, refuse to allow the use of the sewer to the exempted lots except on payment of a connecting charge, on the ground that the resolution authorizing the agreement never received the approval of the burgess, and was therefore void, being legislative in character.</p> <p>3. In such a case, the right of the owner to protection against the threatened action of the borough does not depend upon the contract between the plaintiff owner and the borough; but rests upon the fact that the exclusive ownership of the sewer before the annexation was in the plaintiff and that the rights reserved by the grant remained in the plaintiff the same as before the annexation. It is the borough that must assert the contract, not the plaintiff, for independent of the contract the borough has no right in the sewer whatever.</p>

Appeal, No. 67, Jan. T., 1910, by plaintiff, from judgment of C. P. Elk Co., Jan. T., 1909, No. 116, on verdict for defendant in case of Hyde-Murphy Company v. C. W. Boyer. Petition to obtain possession of real estate under act of April 20, 1905. Before Hall, P. J. The facts appear in the opinion of the Supreme Court. Verdict and judgment for claimant, C. W. Boyer. The plaintiff and assured appealed.

<p>Appeal, No. 92, Jan. T., 1910, by defendant, from judgment of C. P. McKean Co., Feb. T., 1908, No. 126, on verdict for plaintiff in case of Clara Lockwood v. City of Bradford.</p> <p>Trespass to recover damages for personal injuries. Before Bouton, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $5,081.25. Defendant appealed.</p> <p>Error assigned was, inter alia, in refusing to enter judgment for defendant n. o. v.</p>

<p>Negligence — Contributory negligence — -Head-on collision — Engineer-Single track — Rules of company.</p> <p>No recovery can be had for the death of a locomotive engineer killed in a head-on collision on a single track railroad when the evidence shows that the collision was caused by the contributory negligence of the deceased in disregarding a clearly defined and well-understood duty imposed by the railroad regulations and running his train at a high speed two or three minutes ahead of schedule time when he knew that an extra train must be met and passed.</p>

Appeals, Nos. 39 and 40, Jan. T., 1910, by defendant, from judgments of C. P. Northampton Co., Sept. T., 1903, No. 88, and April T., 1904, No. 35, on verdicts for plaintiff in cases of The First National Bank of Bangor v. The American Bangor Slate Company. Assumpsit on two promissory notes. Before Stewabt, J., without a jury. The notes in suit were as follows: “2,850.00 August 21st, 1899.

Bill for Injunction, Miscellaneous Docket, Supreme Court, No. 143, 1910, between Adam Hoffman for himself and other taxpayers v. The City of Pittsburg, William A. Magee, Jr., Mayor, and Eustace S. Morrow, Controller. Bill for an injunction to prevent increase of the indebtedness of the city of Pittsburg and that all proceedings and ordinances, etc., under the ordinance of September 24, 1909, be declared null and void. The facts appear in the opinion of the Supreme Court.

Appeal, No. 100, Oct. T., 1910, by Renwick S. Martin, Administrator of the Estate of Johanna M. Nieman, deceased, from decree of O. C. Allegheny Co., March T., 1909, No. 306, in Estate of Gerhardt E. Nieman. Petition for the conveyance of real estate and personalty. Before Miller, J. The facts of the case were stated by Miller, J., to be as follows: Gerhardt. E. Nieman died December 9, 1888, testate. The provisions of his will were many and intricate.

<p>Appeal, No. 8, Jan. T., 1910, by defendants, from decree of C. P. Lackawanna Co., Nov. T., 1908, No. 1, in case of Alex. Mazaika et al. v. Andrew Krauczunas et al., Trustees.</p> <p>Bill in equity to compel conveyance of church, property. The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence — Electric light company — Defectively insulated wire — Infant — Climbing tree.</p> <p>1. A boy of tender years who while at play climbs a chestnut tree standing on the sidewalk of a street, and is injured by coming in contact with a defectively insulated electric wire, is entitled to recover damages for his injuries from the electric light company maintaining the wire, where it appears that the tree stood on premises not belonging to the company; that the defective insulation of the wire in the branches of the tree had continued for a period of from four to six months before the accident; that during this period sparks had been emitted by the contact of wire and branches; and that in pleasant weather the children of the neighborhood were accustomed to assemble about the tree to play, to climb into it in the progress of their sports and games, and, in proper season, to .secure the nuts it bore.</p> <p>2. A company which uses such a dangerous agent, as a wire charged with an electric current, is bound not only to know the extent of the danger, but to use the very highest degree of care practicable, to avoid injury to every one who may be lawfully in' proximity to its wires, and liable to come accidentally or otherwise in contact with them.</p>

Appeal, No. 396, Jan. T., 1909, from judgment of C. P. Clearfield Co., May T., 1908, No. 223, on verdict for plaintiff in case of Hillsdale Coal & Coke Company v. Pennsylvania Railroad Company. Action to recover damages resulting from discrimination in furnishing transportation facilities. The facts appear in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $17,500.

<p>Wilis — Probate—Issue devisavit vel non — Testamentary capacity— Evidence — Scrivener.</p> <p>1. An issue devisavit vel non is properly refused when the evidence to establish testamentary incapacity is not of a very positive character as to testator’s physical and mental weakness while the evidence to sustain the will is by the scrivener and the two subscribing witnesses who testify positively to the fact that the testator knew what he was doing at the time he signed the paper, that he had knowledge of his personal and real estate, that he possessed sufficient understanding and reason, and expressed his desire as to where he wished his property to go.</p> <p>Wills — Probate—Issue devisavit vel non — Undue influence — Evidence.</p> <p>2. An issue devisavit vel non on the ground of undue influence will be refused where the most that can be found from the testimony is that there was an opportunity for the exercise of influence.</p>

<p>Appeal, No. 376, Jan. T., 1909, by plaintiff, from judgment of C. P. Union Co., Jan. T., 1907, No. 49, on verdict for defendant in case of S. E. Benner v. Fire Association of Philadelphia.</p> <p>Assumpsit on a parol agreement to insure. Before McClure, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>At the trial the court rejected under objection and exception offers to show that insurance agents were accustomed, to agree to renewals in advance of the expiration of current policies [4, 6].</p> <p>The court charged the jury as follows:</p> <p>[So the law says a parol executory contract, or a contract to insure in the future, is not binding upon the company. That is, it is not a contract of insurance.] [2]</p> <p>[Viewing the case as we do, that there was no contract of insurance made at the time, we think the plaintiff is not entitled to recover, and you will render a verdict for the defendant.] [3]</p> <p>Plaintiff presented the following points:</p> <p>1. Under the certificate issued by defendant company, to A. S. Hoch, he was empowered to write insurance, issue policies, etc., and had authority to renew policies by parol or oral agreements. Answer: Refused. [7]</p> <p>2. If the jury believe that the defendant company, through its agent, A. S. Hoch, agreed to renew the policy of insurance upon plaintiff’s barn and contents in the sum of $1,500, in consideration of plaintiff’s agreement to pay the premiums therefor, whenever said agent demanded it, such an agreement would and did constitute a valid contract binding upon both parties. Answer: Refused. [8]</p> <p>3. If the jury find such an agreement to have been made, then the policy was, by such agreement, in effect renewed for a like term, sum, property, risk and premium as the old policy, and the property so insured having been destroyed by fire on November 6, 1905, and within the time covered by said renewal, plaintiff is entitled to recover the value of the property destroyed up to the face of the policy — less the amount of the premium, $30.00 — with interest from the date when the company denied liability, to wit, November 11, 1905. Answer: Refused. [9]</p> <p>4. That A. S. Hoch, the agent of the defendant company, had full power to receive proposals for insurance against loss or damage by fire, and to issue and countersign policies and renewal receipts furnished him by the said defendant, to assent to assignments and transfers, to collect and pay the premiums to the defendant, and transact such other business as might be intrusted to his care, by the defendant, and was the general agent of the company for the purposes aforesaid, in New Berlin and vicinity, and his acts, statements and agreements relating to the renewal of this insurance, the notice of loss, or the denial of liability, were the acts, statements and agreement of the defendant. Answer: In answer to the last point we say: Hoch’s statements and agreements relating to a renewal of insurance were the acts of the company, but under its charter provisions not binding upon it. [10]</p> <p>Defendant presented these points:</p> <p>1. That plaintiff having testified that prior to the expiration of the policy on the dwelling, which expired on August 19, 1905, he entered into an agreement with Albright S. Hoch, the defendant’s agent, to renew a policy of insurance on November 2, 1905, and there being no evidence that any premium was- paid or that any policy was delivered, if the property to be insured should have been destroyed by flood, hurricane or fire before November 2, 1905, when the time arrived at which the contract was to become operative the subject of the insurance not being in existence, thei'e would be nothing to which the policy could attach. During the interim between August and November 2, 1905, the tenure of Mr. Hoch’s agency was uncertain, his authority to make contracts might have been terminated at the will of the defendant. He might have died or his power might have been withdrawn by defendant, and, when the time arrived for him to perform his agreement, he might have been wholly without authority to act. The plaintiff might voluntarily have disposed of the property to be insured by sale or it might have been sold under legal process and the relations of the parties so changed that the plaintiff might not have had an insurable interest in the property on the date when the contract was to become operative. In any one of the above events there would be no obligation to pay a premium, and where there is no obligation to pay a premium, there is no liability to pay a loss. Even if such an agreement existed it was to take effect in the future, and therefore the defendant would in no manner be liable thereunder and your verdict must be for the defendant. Answer: The defendant’s first point is affirmed. [11]</p> <p>2. That an agent duly authorized to bind his company by contract for insurance may make contracts-by parol,, which will be binding upon the company before the issuing of the policy, unless there be specific charter requirements that such or all insurance contracts shall be in writing. But in such case the contract and the authority of the agent must be satisfactorily proved. There being no evidence in this case to show any such authority in Albright S. Hoch, to bind the defendant in the manner claimed by the plaintiff, your verdict must be for the defendant. Answer: The second point is affirmed. [12]</p> <p>Errors assigned were (4, 5) rulings on evidence, quoting the bill of exceptions; (2, 3, 7-12) above instructions, quoting them.</p>

Appeal, No. 54, Jan. T., 1910, by defendant, from judgment of C. P. Juniata Co., Feb. T., 1909, No. 67, on verdict for plaintiffs in case of Annie M. Brenisholtz and John W. Brenisholtz, her husband, v. The Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Shull, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court.

Appeal, No. 55, Jan. T., 1910, by defendant, from judgment of C. P. Juniata Co., Sept. T., 1904, No. 78, on verdict for plaintiff in case of R. B. Allen v. Tuscarora Valley Railroad Company. Trespass to recover damages for personal injuries. Before Shull, P. J. The facts appear in the opinion of the Supreme Court. Error assigned was the allowance of amendment to statement of claim.

Appeal, No. 10, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., June T., 1903, No. 453, on verdict for plaintiffs in case of Henry B. Rea et al., Executors of Henry Rea, Jr., deceased, v. Pittsburg & Connellsville Railroad Company. Appeal from the award of viewers. Before McFarLANE, J. The facts appear in the opinion of the Supreme Court.

Appeal, No. 170, Jan. T., 1909, by defendant, from judgment of C. P. Lancaster Co., Jan. T., 1908, No. 54, on verdict for plaintiff in case of W. G. Mellinger v. The Pennsylvania Railroad Company. Trespass to recover damages for burning of a lumber yard. Before Hassler, J. The facts appear in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $4,360. Defendant appealed.

Appeal, No. 229, Jan. T., 1909, by defendant, from judgment of C. P. Lancaster Co., Dec. T., 1907, No. 48, on verdict for plaintiff in case of Daniel L. Hauenstein v. The Conestoga Traction Company. Trespass to recover damages for personal injuries. Before Landis, P. J. The facts appear in thé opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,537.50. Defendant appealed. Error assigned was refusal of binding instructions for defendant.

<p>Appeal, No. 277, Jan. T., 1909, by defendants, from judgment of the Superior Court, Oct. T., 1908, No. 188, reversing judgment of Q. S. Lancaster Co., April Sessions, 1908, No. 21, and remitting the record with a procedendo in case of Commonwealth v. Amos R. Herr et al., the Board of School Directors of the School District of Mount Joy Township.</p> <p>Indictment against school directors for failure to enforce the Act of June 27, 1895, P. L. 395, relating to the garb of school teachers. Before Landis, P. J., in the court of common pleas.</p> <p>Appeal from Superior Court.</p> <p>The facts appear in the opinion of the Superior Court, by Rice, P. J., as follows:</p> <p>Taking up the objections urged against the validity of the Act of June 27, 1895, P. L. 395, in the order in which they are set forth in the brief of the appellees’ counsel, the first question to be considered is whether the act violates sec. 3, art. Ill, of the constitution which declares that no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title. The title reads: “An act to prevent the wearing in the public schools of this commonwealth, by any of the teachers thereof, of any dress, insignia, marks or emblems indicating the fact that such teacher is an adherent or member of any religious order, sect or denomination, and imposing a fine upon the board of directors of any public school permitting the same.” As the subject clearly expressed in the title is the prevention of certain acts by common school teachers, anyone interested in the subject would, upon reading the title, naturally be led to presume that the bill contained provisions germane to the subject and calculated to effect the object to be attained. He also would naturally be led to presume that included in them were provisions calculated not only to deter school directors from permitting teachers to transgress the law but also to deter teachers themselves from transgressing it. The title need not embody all the distinct provisions of the bill in detail, nor, as has been said repeatedly, serve as an index or digest of its contents; it is sufficient if the title fairly gives notice of the subject of the act, so as reasonably to lead to an inquiry into what is contained in the body of the bill. “A recent admonition from the Supreme Court in Com. v. Rapid Transit St. Ry. Co., 219 Pa. 11, indicates the true spirit of the constitutional requirement and suggests that brevity which does not mislead should be aimed at in the construction of the titles of statutes. Such a title, though general, will cover all details and collateral matters naturally and properly incident to the subject: Stegmaier v. Jones, 203 Pa. 47;” Com. v. Darmska, 35 Pa. Superior Ct. 580; Weiss v. Swift & Co., 36 Pa. Superior Ct. 376. Viewing this title in the light of these well-settled principles, it cannot be declared insufficient upon the ground that it does not expressly mention the provisions relating to the suspension and disqualifying of teachers who violate the act.</p> <p>The objection that the title is misleading, and therefore defective, because no mention is made therein of the purpose to fine individual directors, or to deprive them of their offices or to render them ineligible to appointment or election if they violate the law, is next to be considered. It is to be noticed that the provisions of the act relating to the deprivation of a school director of his office, and to his ineligibility to appointment or election do not come into operation until after a second conviction. They are not necessarily involved in the present case, and their validity need not be discussed. Even if they be invalid — a point we do not decide — the invalidity of the provision subjecting the offending directors to indictment and fine would by no means follow. The other punitive provisions are separable therefrom and may be rejected — we do not intimate that they must be — without drawing with them the provision upon which this prosecution depends: Com. v. Caulfield, 27 Pa. Superior Ct. 279; Com. v. Martin, 35 Pa. Superior Ct. 241, at p. 248, and cases there cited; Com. v. Dougherty, 39 Pa. Superior Ct. 338.</p> <p>But, it is claimed that the title, even as to the imposition of a fine, is misleading, because, as argued by appellees’ counsel, it indicates that the fine is to be imposed on “the board of directors,” whereas the penal provision contained in the body of the act is directed against the director or directors who offend. If in framing the title the intention had been to indicate that the fine was to be imposed upon a corporate or quasi corporate body, as distinguished from the individuals who compose it or the officers who direct its affairs, it is reasonable to suppose that some other form of expression would have been used than “board of school directors.” Under our common school system a “board” of school directors is not such a legal entity as can be made to respond to civil or criminal process. As used in this connection, it must be regarded as a mere name or form of expression to indicate a number of persons appointed or elected to sit in council for the management or direction of the affairs of a school district, the latter and not the board being the corporate entity. It is impossible to conceive of the imposition of a fine upon a board of school directors apart from the directors personally. And, surely, no one reading this title could reasonably infer therefrom that the intention was to do the vain thing of imposing a fine which could not be enforced against any person, natural or artificial. On the contrary, the plain and natural inference to be drawn from the words of the title would be that the body of the bill contained a penal provision calculated to deter the members of the governing body from permitting the forbidden act. This seems to be an appropriate occasion for quoting again the apt language of Allegheny County Home’s App., 77 Pa. 77: “It will not do, therefore, to impale the legislation of the state upon the sharp points of criticism, but we must give each title as it comes before us, a reasonable interpretation, ut res magis valeat quam pereat.” Without further elaboration, we conclude, that the title is sufficiently comprehensive as well as sufficiently precise and clear to sustain the provisions of the act involved in this case.</p> <p>The next objection urged against the act is that it violates the fifth and fourteenth amendments of the constitution of the United States, in that it subjects the individual school director to punishment for the acts of his associates as a body when he may not be in any way responsible for them. It is obvious, we think, upon a mere reading of this objection in connection with the clause of the statute to which it relates that the objection is based on an erroneous interpretation of the clause. It is “the public school director failing to comply with the provisions of this act,” who is made subject to indictment and fine. It would require a very strained and indeed wholly unwarranted interpretation of these words in a penal statute to hold that a director, who in good faith has done what he could officially to comply with the provisions of the act, but has been outvoted by his associates, has failed to comply with them. One of the elementary rules in the construction of statutes is to adopt such construction, if it be fairly possible, as will avoid a conclusion that would make it unconstitutional. The presumption always is that the legislature does not intend to violate the constitution, and this controls in doubtful cases. Besides this, the act furnishes very satisfactory evidence that the legislature did not intend to punish such a director as we have spoken of. It first declares that, “it shall be the duty of said school board to permanently suspend such teacher,” etc., and then that, “any public school director failing to comply with the provisions of this act shall be guilty of a misdemeanor,” etc. The law does not confer the power, nor impose the duty, on a single director, to suspend a teacher. He must, however, do his duty as a member of the board and when he has done that, he has complied with the provisions of the law. This is evidently what the legislature meant, not that he must do that which he cannot do himself. If the legislature had intended the absurdity and injustice of punishing a director who has done his duty and exhausted the power the legislature gave him, it would not have used language which reasonably imports that each direector is punishable by fine for his own dereliction only.</p> <p>The remaining objections urged against the act are that it violates secs. 3 and 4 of art. I of our constitution which so far as material here read as follows:</p> <p>Sec. 3. “All men have a natural and indefeasible right to worship Almighty God according to the dictates of their own consciences; .... no human authority can, in any case whatever, control or interfere with the rights of conscience, and no preferences shall ever be given by law to any religious establishments or modes of worship.”</p> <p>Sec. 4. “No person who acknowledges the being of a God and a future state of rewards and punishments shall, on account of his religious sentiments, be disqualified to hold any office or place of trust or profit under this commonwealth. ’ ’</p> <p>The inhibition of the act is thus expressed: “That no teacher in any public school of this commonwealth shall wear in said school or whilst engaged in the performance of his or her duty as such teacher any dress, mark, emblem or insignia indicating the fact that such teacher is a member or adherent of any religious order, sect or denomination.” A violation of the foregoing provision subjects the teacher to suspension from employment in the district for one year, and a second offense to permanent disqualification to teach in the district. If the question for our decision were whether the act prohibited by this legislation is contrary to the letter or the true intent and meaning of the sections of the constitution above quoted, or of the constitutional prohibition against the appropriation or use of public school money for the support of any sectarian school, it would be sufficient for us to say that it has been authoritatively and conclusively answered in the negative by the Supreme Court in Hysong v. Gallitzin Borough School Dist. et al., 164 Pa. 629. So also if the question for our decision were whether the legislation was necessary in order to carry into effect, in the administration of the public schools, these constitutional provisions, the answer would have to be in the negative. The question is not, what do these sections empower the legislature to do, but what limitations do they impose upon the general legislative power vested in the general assembly by sec. 1, art. II of the constitution. This question did not arise in the case cited, and it is an obvious mistake to suppose that the legislation must fail because the effort to accomplish the same result through the courts was ineffectual. The legislature may exercise all the powers of a legislative character that are not prohibited to it by the state or federal constitutions: Com. v. McCloskey, 2 Rawle, 369. Nothing but a clear violation of the constitution, “a clear usurpation of powers prohibited” will justify the judicial department in pronouncing an act of the legislative department unconstitutional and void: Sharswood, J., in Penna. R. R. Co. v. Riblet, 66 Pa. 164. The right of the judiciary to declare a statute void and to arrest its execution is one which, in the opinion of all courts, is coupled with responsibility so grave that it is never to be exercised except in very clear cases. “The party who wishes to pronounce a law unconstitutional takes upon himself the burden of proving beyond all doubt that it is so. ” Black, J., in Erie & Northeast R. R. Co. v. Casey, 26 Pa. 287; quoted with approval by Sterrett, J., in Powell v. Com., 114 Pa. 265. “Nor are the motives of the legislature, real or supposed, in passing an act open to judicial inquiry or consideration. The legislature is the lawmaking department of the government, and its acts in that capacity are entitled to respect and obedience until clearly shown to be in violation of the only superior power, the constitution.” Mitchell, J., in Com. v. Moir, 199 Pa. 534. “Where the power which is exercised is legislative in its character, the courts can enforce only those limitations which the constitution imposes; not those implied restrictions which, resting in theory only, the people have been satisfied to leave to the judgment, patriotism and sense of justice of their representatives:” Cooley’s Const. Lim. (7th ed., 1903) 184. Again the learned author says, and this is quoted with approval in Com. v. Moir, 199 Pa. 534: “The rule of law upon this subject appears to be, that except where the constitution has imposed limits upon the legislative power, it must be considered as practically absolute, whether it operate according to natural justice or not in any particular case. The courts are not the guardians of the rights of the people of the state, except as those rights are secured by some constitutional provision which comes within the judicial cognizance. The protection against unwise or oppressive legislation, within constitutional bounds, is by an appeal to the justice and patriotism of the representatives of the people. If this fail, the people in their sovereign capacity can correct the evil; but courts cannot assume their rights. The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason and expediency with the lawmaking power. Any legislative act which does not encroach upon the powers apportioned to the other departments of the government, being prima facie valid, must be enforced, unless restrictions upon the legislative authority can be pointed out in the constitution, and the case shown to come within them:” Cooley’s Const. Lim. (7th ed.) 236. We have been led to bring prominently into view these generally accepted principles that govern the courts in the determination of such a question as we have before us, because we deem it the most appropriate mode of answering some of the arguments, which, it seems to us, are pertinent only to the question of the necessity for, and the expediency and wisdom of, the legislation. These are legislative, not judicial, questions, and they will not be discussed here.</p> <p>We cannot assent to the proposition that the intent or the effect of the legislation is to disqualify any person from employment as a teacher “on account of his religious sentiments.” It is directed against acts, not beliefs, and only against acts of the teacher whilst engaged in the performance of his or her duties as such teacher. It is true the acts prohibited are those which may indicate, and indeed may be dictated by, the religious sentiments of the teacher. Therefore we are led to the broader inquiry whether this constitutes an infringement of the “natural and indefeasible right of all men to worship Almighty God according to the dictates of their own consciences,” or contravenes the accompanying declaration that “no human authority can, in any case whatever, control or interfere with the rights of conscience.” No man’s religious belief may be interfered with by law. As was said by Justice Williams in Hysong v. Gallitzin Boro. School Disk, 164 Pa. 629, the rights of conscience are no less sacred than the rights of property; test oaths and religious disqualifications belong to a period further back than the memory of the present generation can reach, and it is to be hoped they may never be restored. But broad as are these declarations of our constitution, and sacred as are the religious freedom and the rights of conscience they secure, yet it must be apparent to any person upon reflection, and has been repeatedly declared by the highest judicial authority, that they do not mean, unqualifiedly, that it is beyond the power of the legislature to enact any law which will restrain individuals from doing that which, if it were not for the law, their consciences would teach them to be their moral or religious duty. Indeed it is impossible to see how civil government could exist, if the dictates of the individual conscience were in every instance where they come in conflict with the law of the land the paramount rule of action. Speaking of the act of congress which forbids plural marriages in territories and places under the exclusive dominion of the United States, Chief Justice Waite said: “Congress cannot pass a law for the government of the territories which shall prohibit the free exercise of religion. The first amendment to the constitution expressly forbids such legislation. Religious freedom is guaranteed everywhere throughout the United States so far as congressional interference is concerned. The question to be determined is whether the law now under consideration comes within this prohibition.” Then, for the purpose of ascertaining the meaning of the term religious freedom, he reviewed the history of the times in which the constitutional provision relating thereto was adopted and in the course of his reasoning in support of the conclusion that it was not intended to prohibit legislation forbidding polygamy,, even by those adherents of a sect who believed it to be their religious duty to practice it, he used the following language which is pertinent to the discussion of the question before us: “Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. ... So here, as a law of the organization of society under the exclusive dominion of the United States, it is provided that plural marriages shall not be allowed. Can a man excuse his practice to the contrary because of his religious belief? To permit this would be to make the professed doctrines of religious belief superior to the law of the land," and in effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” Many other illustrations may be found in decided cases of the general principles that the religious freedom and the rights of conscience guaranteed by the constitution do not necessarily and always stand in the way of the enforcement of laws commanding or prohibiting the commission of acts even by those who conscientiously believe it to be their religious or moral duty to do or refrain from doing them. For example, not to go outside of Pennsylvania, a Jew who refused to be sworn in the trial of a case on Saturday because it was his Sabbath was fined: Stansbury v. Marks, 2 Dali. 213. The conscientious scruples of a Jew to appear in court and attend to the trial of his case on the same day were held to be no ground for the continuance of his cause: Philips v. Gratz, 2 P. & W. 412. The act prohibiting all worldly employment upon the first day of the week has been held not to be in contravention of the constitutional rights under consideration, even where. ■ applied to persons whose religious belief leads them to observe another day of the week as their Sabbath: Com. v. Wolf, 3 S. & It. 48; Specht v. Com., 8 Pa. 312. The same was held to be true as to persons who conscientiously believe it .to be .their religious duty to labor the. first six days of the week and .to keep the., seventh day as-the-Sabbath: Waldo v. Com., 9 W. N. C. 200. Adherents of a religious organization who deem it their duty by divine command to go into the streets and there preach the gospel and who as a regular part of their service use the drum, are not exempted by the constitution from the operation of a city ordinance which prohibits the use of a drum or other musical instrument on the street without permit from the mayor: Wilkes-Barre v. Garabed, 11 Pa. Superior Ct. 355. The case of Com. v. Lesher, 17 S. & It. 155, is not directly pertinent to the question before us, but the remarks of Chief Justice Gibson which though made in a dissenting opinion were approved in Specht v. Com., 8 Pa. 312, and have not been questioned or qualified in any later case that has come to our notice, seem to be very pertinent. He said: “It is declared in the constitution that no human authority can, in any case, control or interfere with the rights of conscience. But what are those rights? Simply a right to worship the Supreme Being according to the dictates of the heart, to adopt any creed or hold any opinion whatever on the subject of religion; and to do, or forbear to do, any act, for conscience’ sake, the doing or forbearing of which is not prejudicial to the common weal.” Then after speaking of the views of Mr. Jefferson upon the subject he proceeded: “He denies the right of society to interfere only where society is not a party in interest, the question, with its consequences, being between the man and his Creator; but as far as the interests of society are involved, its right to interfere on principles of self-preservation is not disputed. And this right is insolvable into the most absolute necessity; for, were the laws dispensed with, wherever they happened to be in collision with some supposed religious obligation, government would be perpetually falling short of the exigence. There are few things, however simple, that stand indifferent in the view of all the sects into which the Christian world is divided.” The right of the individual to clothe himself in whatever garb his taste, his inclination, the. tenets of his sect, or even his religious sentiments may dictate is no more absolute than his right to give utterance to his sentiments religious or otherwise. In neither case can it be said that a statute cannot restrain him from exercising these rights whenever, wherever and in whatever manner he conscientiously believes it to be his moral or religious duty to do so. That the right to wear a particular garb is not as absolute and as free from legislative control as that was expressly conceded by the Supreme Court in Hysong v. Gallitzin Boro. School Dist., 164 Pa. 629, in the following terms: “The legislature may, by statute, enact that all teachers shall wear in the schoolroom a particular style of dress and that none other shall be worn, and thereby secure the same uniformity of outward appearance as we now see in city police, railroad trainmen, and nurses of some of our large hospitals.” It is urged that this part of the opinion is obiter dictum. It is true the precise question whether the legislature could enact such a law was not before the court, and it may be conceded that for that reason the utterance is not a binding authority. Nevertheless it was pertinent in the discussion of the question then before the court, and was evidently made upon due deliberation. Besides that, the obiter, if so it may be regarded, comes from so high a source that it is entitled to great respect from us. Moreover, the proposition is so well supported by sound principle, that we believe it to be unassailable. But any public school teacher who is restrained by the act of 1896, from doing that in the scho'olroom which his conscience or his religious sentiments dictate, would just as plainly and to the same extent be restrained by such a statute as is described in the case cited. Another case that may be appropriately referred to in this connection is O’Connor v. Hendrick, 184 N. Y. 421. It was there held in a well-considered opinion that a regulation established by the state superintendent of public instruction, who had implied authority under the statute to establish regulations as to the management of the public schools, prohibiting teachers in public schools from wearing a distinctively religious garb while engaged in the work of teaching therein was a reasonable and valid exercise of the power vested in him. This is the only other decision that has been brought to our notice which deals with the precise question of the validity of a rule or statute of that nature.</p> <p>The system of common school education in this commonwealth is the creature of the state, and its perpetuity and freedom from sectarian control are guaranteed by express constitutional provisions. Subject to these, the power to support and maintain an efficient system of public schools, wherein all the children of the commonwealth above the age of six years may be educated, is vested in the legislature. This carries with it the authority to determine what shall be the qualifications of the teachers, but in prescribing them the legislature may not make religious belief or church affiliation a test. Nevertheless, the power of the legislature to make reasonable regulations for the government of their conduct whilst engaged in the performance of their duties must be conceded. Primarily it is the province of the legislature to determine what regulations will promote the efficiency of the system and tend to the accomplishment of the object for which it was established. It is only where such regulations are clearly shown to be in violation of the fundamental law that the courts, even though entertaining a different opinion from that of the legislature as to the necessity for or the wisdom or expediency of adopting them, may annul them. As shown by the preamble of the act under consideration, the legislature deemed it “important that all appearances of sectarianism should be avoided in the administration of the public schools of this commonwealth.” This was the ostensible object of the legislation, and we can discover no substantial ground for concluding that it was not the sole object which the legislature had in contemplation. Nor are we able to conclude either that the object was beyond the scope of legislative power, or that the regulation adopted has no just and proper relation to that object.</p> <p>The judgment is reversed, the demurrer overruled with leave to the defendant to plead the general issue and the record is remitted with a procedendo.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Negligence — Dangerous machinery — Cloth picking machine — Contributory negligence — Boy over fourteen — Instructions.</p> <p>In an action to recover damages for personal injuries received while working at a cloth picking machine a nonsuit is proper where it appears that plaintiff, a bright and intelligent looking lad of over fourteen, passed around to the side of the carrier feeding the machine and, getting into close proximity to it, carelessly allowed his hand to get caught, although the danger was obvious and plaintiff admittedly knew, from having worked in the same room with the machine for a year and having operated it himself for ten days, that the proper place to stand in feeding the machine was in front.</p>

Appeal, No. 112, Jan. T., 1910, by plaintiffs, from judgment of the Superior Court, Oct. T., 1909, No. 167, affirming a judgment and decree of C. P. Lancaster Co., entered in Mechanic’s Lien Docket, No. 7, page 85, striking off a lien in case of B. Frank Hiestand et ah, partners, trading as B. F. Hiestand & Sons, v. Willis Keath. Petition to strike off a mechanic’s lien in the common pleas. Before Landis, P. J. Appeal from Superior Court.

<p>Negligence — Municipal corporations — Sidewalks—Loose grate — Curb —Contributory negligence — Burden of proof.</p> <p>1. Negligence of plaintiff, contributing to an injury complained of, is a matter of defense and ordinarily the burden of proving it is on the defendant.</p> <p>2. The rule that a plaintiff must present a case clear of contributory negligence does not mean that after proving affirmatively that the defendant’s negligence caused the injury, he must prove negatively that he himself was not guilty of negligence that contributed to the result.</p> <p>3. In an action against a city to recover damages for personal injuries received from stepping upon a loose grate over a gutter, an admission by plaintiff that she was not looking down as she walked along, but was looking straight ahead is not sufficient to convict her of con-tributary negligence unless it also conclusively appears from the testimony that if she had looked she could not have helped seeing the danger. , ' .</p> <p>4. In such a case where two witnesses for the plaintiff apparently contradict each other as to whether the grate was visibly loose and out of place, and it is not clear whether the plaintiff could have seen it, it is for the jury to reconcile the conflicting statements of the witnesses, and a nonsuit should not be entered.</p>

<p>Appeal, No. 82, Jan. T., 1909, by plaintiff, from order of C. P. Lancaster Co., Nov. T., 1907, No. 13, refusing to take off nonsuit in case of C. Eugene Montgomery v. James D. Landis, B. S. Shindle et al., trading as the New Era Printing Company. Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.</p> <p>Trespass to recover damages for the publication of an alleged libelous article. Before Hassler, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was the refusal to take off nonsuit.</p>

<p>Railroads — Common carriers — Discrimination—Act of June 4, 1888, P. L. 78 — Assignments—Actions—Damages—Torts—Statutory penalties.</p> <p>1. A suit brought against a railroad to recover damages for discrimination wherein the plaintiff declares under the act of June 4, 1883, making the common carrier “hable to the party injured for damages treble the amount of injury suffered,” and by his statement of claim, and several amendments thereto, claims treble damages, is not assignable before verdict as a claim for either single or treble damages, and this is the ease whether it be regarded as an action for a statutory penalty or as an action sounding in tort for the recovery of unliquidated damages.</p> <p>2. A right of action strictly personal is not assignable, and the general doctrine is, both in law and equity, that a right of action for a pure tort is not the subject of assignment.</p>

<p>Negligence — Sidewalk—Defective covering — Finding of referee.</p> <p>In. an action of trespass for personal injuries against a city, charging negligence in suffering a pavement to become unsafe and in not properly guarding a hole in the sidewalk, tried before a referee without a jury, a finding for the plaintiff by the referee will be sustained where the evidence strongly tends to show that the hole, an old coal chute, occupied nearly half the width of the sidewalk and was in the direct line of travel at a point where the street was not well lighted, that it was covered by an ordinary house door, loosely thrown over it a year or two before the accident, which had become so rotten that when the plaintiff stepped thereon it broke with her weight and injured her,' that a policeman had marked the spot with a red light and that its condition was known to policemen and neighbors a long time prior to the accident.</p>

<p>Appeal, No. 153, Jan. T., 1910, by plaintiff, from decree of C. P. Lancaster Co., entered in Trust Book No. 21, p. 401, dismissing petition of plaintiff in case of the Borough of Manheim v. The Manheim Water Company.</p> <p>Petition for the appointment of appraisers under the Act of May 31, 1907, P. L. 355. Before Hassler, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court dismissing the petition.</p>

<p>Appeal, No. 6, Jan. T., 1910, by defendant, from judgment of C. P. York Co., Aug. T., 1908, No. 73, on verdict for plaintiffs in case of Horace Brillinger and Robert F. S.wartz, trading as Brillinger & Swartz, for their own use and the use of the Spring Garden Mutual Fire Insurance Company et al., v. Northern Central Railway Company.</p> <p>Trespass for damages resulting from a fire. Before Wanner, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned among others was refusal to give binding instructions for defendant.</p>

<p>Appeal, No. 125, Jan. T., 1910, by Frederick C. Grothe, from decree of O. C. York Co., refusing petition for order on the Security Title & Trust Company, in Estate of Frederick Grothe.</p> <p>Petition for an order upon trustee to pay over the whole of the income of a residuary bequest under a will. Before Wanner, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree refusing petition.</p>

<p>Negligence — Railroads—Contributory negligence — Crossings—“¡Stop, look and listen.”</p> <p>The duty of care which the law imposes on a driver at a railroad crossing is not fulfilled by stopping at a point 100 feet from the track, where he cannot see on account of an embankment and a building, when at a point thirty feet from the track there is a clear view of 500 feet and ten feet from it a clear view of 1,000 feet.</p>

<p>Appeals — Assignments of error — Equity practice.</p> <p>1. On appeal to the Supreme or Superior Court in an equity suit such matters only as have been excepted to and finally passed on by the court are assignable in error.</p> <p>Appraisement — Interested appraiser — Waiver.</p> <p>2. Where one of the parties to an agreement for the appointment of appraisers to value lands knew at the time of the appointment of an appraiser that he was the agent of the other parties and understood fully his relation to them and acquiesced in his appointment, he must be held to have waived any objection to the appointment.</p>

<p>Appeal, No. 154, Jan. T., 1910, by Benjamin D. Shreve, from decree of C. P. Chester Co., in Equity, No. 513, sustaining bill against Benjamin D. Shreve in case of John S. Newman, Executor and Trustee of William Keinath, deceased, v. Benjamin D. Shreve, Isaac A. Braddock, Joseph Taylor, St. Albans Realty Company, and the Sea Haven Company.</p> <p>Bill for an accounting, etc. Before Butler, J.</p> <p>The findings of fact of the lower court were as follows:</p> <p>On August 2, 1881, Edward P. Carpenter executed and delivered to Henry W. Town a bond and mortgage to secure the payment of $3,000 with interest, within two years, which mortgage covered a tract of land on the ocean, situate in Little Egg Harbor township, Burlington county (now the township of Long Beach, county of Ocean), in the state of New Jersey. This mortgage was duly recorded. Default having been made in payment, foreclosure proceedings were instituted, a decree was made and an execution was directed to issue, when on June 17, 1889, the bond, mortgage, decree and execution process were assigned to Wm. Keinath, the plaintiff decedent. This mortgage was a first lien on the premises it described, and in a subsequent foreclosure proceeding on a second mortgage covering the same, and additional premises, it was duly determined that $5,188.58, with interest from September 12, 1894, were owing on this first mortgage.</p> <p>Subsequent to the execution of the first mortgage, before recited, title to the land bound by it, and other contiguous territory, became vested in the Sea Haven Improvement Company, a New Jersey corporation, and this company executed to Benj. D. Shreve, one of the defendants, and Cyrus Borgner, as trustee, a mortgage upon said lands to secure an issue of bonds of $100 each, aggregating $20,000. Of these bonds Wm. Keinath was the owner and holder of fourteen, and Isaac A. Braddock, another defendant, was the owner and holder of twenty-six which on January 3, 1891, he assigned and delivered to J. E. Roberts as collateral security for money loaned. We find that the legal title to those bonds has remained in Braddock, that he owns them subject only to their pledge to Roberts as collateral for his claim against Braddock. Braddock intimates that on a settlement it might be found that he is no longer indebted to Roberts, and might by suit obtain the bonds.</p> <p>In so far as we can discover from the evidence, the second mortgage covered the southern portion of Long Beach, a tract about four miles in length, containing, roughly speaking, from 800 to 900 acres, and the first mortgage was confined to about one-half of this tract.</p> <p>Default having been made in payments due on bonds secured by the second mortgage, foreclosure proceedings were instituted on behalf of bondholders, a decree of sale was entered and David J. Pancoast, special master in chancery, was authorized to make sale of the mortgaged premises.</p> <p>Subsequent to the execution of the mortgage referred to, the second mortgage, two judgments aggregating about $3,700, were recovered against the Sea Haven Improvement Company and by their owner, Levis, were later on assigned to Isaac Á. Braddock.</p> <p>On May 16,1895, Wm. Keinath, the holder and owner of the first mortgage hen, together with holders of eighty-five bonds secured by the second mortgage lien, entered into an agreement with Benj. D. Shreve, authorizing him to purchase the lands at the foreclosure sale.</p> <p>This agreement was executed by Keinath as the owner of the first mortgage lien and of fourteen bonds secured by the second mortgage, and was executed by Isaac A. Braddock as the owner of twenty-six bonds.</p> <p>The agreement provided that in the event of Shreve acquiring title as contemplated, he should sell the same for such sum as he might deem it for the best interest of the parties, deduct from the purchase money the costs and expenses of the trust, including commissions, the costs and expenses of the foreclosure, pay the Wm. Keinath first mortgage, with interest to date of settlement, and the balance, if any, to the holders of the bonds, pro rata.</p> <p>In due course, in the manner contemplated, and subject to the agreement just recited, Shreve on August 1, 1895, was invested with title to all the lands in which Keinath was interested as holder of the first mortgage, and in which Shreve and Borgner, as trustees, were interested under the second mortgage. Whether the Levis judgments covered some accretions at the southern end of Long Branch, not included in the land described in the second mortgage as is claimed by the defendants to be a fact, and denied by the plaintiff, we cannot with certainty decide.</p> <p>The description in the second mortgage is by courses and distances, and no call for the water appears. If, however, the property as described, in fact reached the water, left no intervening land, the accretions belonged to the title covered by the mortgage, though there is no express call for the water. Whether where the accretions in question are located, the mortgage title as a fact reached the water, was not shown.</p> <p>However this may be, we have no hesitation in stating that to us the evidence is very convincing that no one had a thought that these judgments were a lien on anything outside of the mortgaged property, had any substantial value. Apparently. Levis owned them when the agreement was made under which Shreve was to take title and protect all interests. No claim for consideration on account of these judgments was then made. Whether Braddock gave anything substantial for them does not appear, but certain it is, in so far as the evidence discloses, he never made any claim to anyone that the judgments were substantially valuable, that they covered land outside of the mortgage, and were desirable as a means of securing title thereto, until at the hearing of this case he ascribed such virtue to these judgments as a justification for having diverted to himself more than half of the consideration named in a contract of sale of the title held by Shreve. Shreve certainly never understood that there was any pretense on Braddock’s part that through his judgments he controlled valuable, independent territory, shutting Shreve’s title off from the water. Shreve was constantly in communication with Braddock relative to the seashore property, had full opportunity to know what his interests were there, and according to his testimony, the only property or interests .that Braddock had, or spoke of having, were so-called hotel property and lots, wholly apart of any of the real estate here involved. After Shreve acquired title pursuant to the agreement referred to, he made earnest and continuous efforts to sell the property, urging Braddock and others to assist him. He incurred expenses in endeavoring to make sale, paid taxes, etc., and no revenues arose from the property. Braddock viewed himself as an agent of Shreve to make sale of the property, he so testified: “I considered myself his agent to sell his interests in the property. I have a number of letters to that effect.” “Q. Had Mr. Shreve authorized you at any time to sell his property as his agent? A. Oh, a number of times, yes; over ten years he had authorized me to sell it. Q. Did you tell him you sold it as his agent? A. No, I think not. Q. And for 133,000? A. I was buying the property then, the moment he signed that agreement he sold it to me, I was no longer his agent. I was acting for myself.” Having recently received a letter from Shreve; under date April 24, 1906, authorizing him to make a sale upon specified terms, and to secure the execution of an agreement, late in April of 1906, Braddock. came in contact with Joseph Taylor, one of the defendants, and representing himself as Shreve’s agent sought to have him purchase. Braddock, Taylor, and his counsel, Darnell, visited the property, looked it over, and on April 30, 1906, met at Darnell’s office, the contract of sale was written, was executed by Braddock as agent from Shreve, by Taylor as purchaser and was also signed by Braddock individually, he having stipulated in the contract, that he would remove or assign any judgment or incumbrance he might have against the property. As already stated, ■ we are unable to determine positively whether Braddock’s judgments had any value, but we are clear that his conduct was wholly inconsistent with their possessing substantial value, with their being liens on property outside of that held by Shreve; and we are satisfied that there was no thought on anyone’s part that through these judgments Taylor was to acquire any land. Braddock does not claim that either when viewing the property or later when the agreement was made, he suggested anything of this kind; he, as agent for Shreve, is the only party vendor named, Shreve’s title as derived from the special master in chancery, is the only thing sold, and the $33,000 purchase money is an entire, indivisible consideration for that title. Even if the judgments had value, they figured in the agreement simply because Darnell viewed them as a cloud on the property Shreve was selling, and Braddock was willing to give them up in order to effectuate the sale of the Shreve title. Braddock was vitally interested in the sale being consummated, not only on account of commissions which he could well have demanded, but also as the owner of bonds secured by the second mortgage, and of certain lots, etc., that might become marketable through the sale of the Shreve land. In no aspect of the case could Braddock be viewed as entitled to any part of the $33,000 consideration on account of his judgments; if possible, his claim to part of the $33,000 is made more preposterous by the magnitude of the share claimed. Though according to his own contention his judgments covered only about 150 acres and Shreve’s title covered some 800, part of which, at least, extended to the water, he sought to justify the diversion to himself of more than half of the $33,000.</p> <p>The agreement of sale provided for the payment of $1.00 down, $993 on May 5, following, $5,000 cash and a mortgage for $27,000 upon the execution and delivery of the deed, conveyance to be made within ninety days from the date of the agreement.</p> <p>Shreve had no knowledge of Taylor as a purchaser, before or at the time of the execution of the contract of April 30, 1906.</p> <p>On May 5, 1906, Taylor, through his counsel Darnell, paid the $1,000 provided for in the contract, by two checks, one to the order of Shreve for $750, and the other to the order of Isaac A. Braddock for $250. The Shreve check was certified by the bank on which it‘ was drawn, on May 7,1906, and was delivered by Braddock to Shreve, on that day, on account of a contract then entered into between them, whereby Shreve agreed to convey the lands held by him to Braddock, on or before July 30, 1906, for $15,000, of which sum $750 was to be paid in cash on the execution of the agreement, $4,250 in cash on July 30, 1906, together with a purchase money bond and mortgage for the balance. This was the first and only contract of sale between Shreve and Braddock, disclosed by the evidence. While Braddock does in answering to leading questions of his counsel, say that he contracted to buy the property before he made, as Shreve’s agent, the sale to Taylor, such is clearly not the fact. He testifies positively that his alleged prior contract of purchase is to be found in certain letters of Shreve written to him, two in January and one on April 24, 1906. On inspection it is seen that none of these letters exhibit a contract, and the last one, April 24, 1906, written only five days before he as agent for Shreve, contracted to sell to Taylor, wholly negatives the existence of a contract of sale to Braddock or to anyone else, for it urges Braddock to find a purchaser and to have him sign a contract. Indeed, Braddock testifies that pursuant to this letter of April 24, 1906, he became active and consummated the sale to Taylor a few days later. Moreover, Braddock’s testimony relative to what he told Shreve, concerning the Taylor contract, on May 7, 1906, when he secured an agreement of sale to himself at $15,000, contains an admission that then for the first time he became a purchaser, that until then he had been Shreve’s agent to make a sale. “Q. Did you tell him you sold it as his agent? A. No, I think not. Q. And for $33,000? A. I was buying the property then, the moment he signed that agreement, he sold it to me, and I was no longer his agent. I was acting for myself. Q. Before he signed it, you were representing yourself as his agent? A. I was his agent to sell his property. Q. Before you got home to execute an agreement in your favor did you tell him you had already sold it for him as his agent, and received down money, for $33,000? A. I do not remember telling him anything of the kind, I do not think I did.”</p> <p>We are not prepared to find that at this time Braddock told Shreve of the existing contract of sale with Taylor. He says he did, but in this Shreve contradicts him, and it is improbable that Braddock would so inform him at a time when he was seeking a contract of sale to himself at less than half the price secured by the Taylor contract.</p> <p>After the execution of the Taylor contract, of April 30, 1906, Darnell with a view to its performance, prepared the deed for execution by Shreve to Taylor, and the $27,000 mortgage, provided for in the contract, to be given by Taylor to Shreve, and on July 30, 1906, Taylor, Darnell, Shreve and Braddock met by appointment at Shreve’s office in Camden, N. J. At this meeting we are constrained to find from the strong preponderance of the evidence, that it was clearly and distinctly announced to Shreve that Taylor had contracted with him through Braddock, acting as his agent, to buy the property held by him, Shreve, and had agreed to pay therefor $33,000, that a mortgage in Shreve’s favor for $27,000 as provided by the contract, would forthwith be executed by Taylor, and that Taylor was prepared to pay the full consideration of $33,000. Darnell testifies to all of this and Taylor to part of it, and starting out with the uncontroverted facts that Taylor had a contract for the purchase of the property which he was very anxious to have carried out, that he and Darnell knew no one as the vendor but Shreve, and in going to his office to meet him, could have been actuated by no other thought than that they must there deal with him, how can it be doubted that, as they say, the $27,000 mortgage, and the deed, were presented to Shreve, and that he did not receive $33,000 for the property simply because he inexcusably failed for some reason to appreciate his opportunity, turned it off without any consideration, and insisted on putting through his $15,000 contract with Braddock.</p> <p>Darnell and Taylor testify that when it became apparent that Shreve would not accept the $27,000 mortgage, said it was drawn for too large a sum, and refused to carry out the $33,000 contract, Taylor in the presence and hearing of Shreve, said that he had contracted to pay $33,000 for the property and owed it to some one. The fact that Taylor did substantially pay this sum, leaves little room for doubting that he was fully determined to pay it, and made the fact known as he and Darnell testify. Braddock testifies that he took no part in the discussion, heard nothing of what transpired, that he left all to Shreve and Darnell, that Shreve told him to execute an assignment to Taylor, of his, Braddock’s, $15,0.00 contract. Darnell testifies that when the $27,000 mortgage and the deed were handed to Shreve, and he refused to accept the mortgage and execute the deed because, as he stated, the amount of the mortgage was too large, he, Darnell, was much surprised, and produced the $33,000 contract to Shreve who, thereupon, refused to consider it and insisted on consummating his $15,000 contract with Braddock.</p> <p>Apparently Braddock made no move toward preventing the Taylor contract being carried out; certainly Taylor was ready and anxious for its consummation; clearly on arriving at Shreve’s office, Taylor and Darnell looked to him alone as the other party to their contract, and the conclusion is irresistible that they vigorously sought to carry it out with him, and that he for some wholly inexcusable reason prevented its consummation. Shrevedenies that the $33,000 contract with Taylor, was brought to his attention, and in view of his reputation as a man' of intelligence and integrity his denial is entitled to earnest consideration.</p> <p>On the other hand, however, the testimony of Taylor. and Darnell is convincing, not only because they stand before us as entirely reputable people, with no apparent motive to pervert the truth, but also because the situation as it existed, made notice to Shreve of the $33,000 contract, substantially in the manner they say he received notice, inevitable. As weakening the force of Shreve’s denial and indicating that his mind was so wholly engrossed by his $15,000 contract with Braddock that he was unable to contemplate or consider any other contract or any other figure than $15,000 is his testimony on page 33 of the transcript of his testimony: “Q. Give the date? A. Thirtieth of July, 1906. Q. Was the first you met Mr. Taylor? A. That was the first time I met Mr. Taylor. Prior to that the deed which was to be drawn up, had been submitted to me. I think I had it out here. I sent that back again. I went there fully prepared to carry out the whole transaction. When I got there, I looked over the deed, and it was all right. The deed was for the consideration of $15,000, and it was all perfectly right in every respect as far as I observe.” Clearly he must be mistaken in his statement that on July 30 at his office in Camden, he looked over the deed and saw that it was for the consideration of $15,000. Darnell, who drew this deed, prepared it with a view to consummating the $33,000 contract of sale to Taylor. There is no reason to believe that he had any knowledge of a $15,000 sale, and, therefore, obviously the deed did not state a consideration of $15,000 as Shreve testifies. All of the proof is to the effect that the deed presented to Shreve on July 30, 1906, is the one that was used by him in making title to Taylor, and the consideration therein stated is not $15,000, but is “one dollar and other valuable considerations.” Shreve is positive that he executed the deed on July 30, and not on August 2, as indicated by the deed, because he is sure that he was not in Camden on the latter date. It is quite clear, however, that the deed was not executed in Camden, but out where Shreve was living in Pennsylvania.</p> <p>On August 2, 1906, the date to which adjournment was had on July 30, 1906, the deed executed by Shreve and naming the consideration stated, was delivered to Taylor, he executing and delivering to Shreve, a purchase money mortgage for $11,000 and paying him $3,000 in cash. Certain cash payments were made to Braddock in addition to money he had already received, and on August 12, 1906, a mortgage was executed and delivered to him by Taylor for $12,052.78 and Taylor fully met and satisfied his obligation to pay $33,000 consideration, in cash paid, and the two mortgages given to Shreve and Braddock respectively. Subsequently Taylor conveyed the property to the Sea Haven Improvement Company, which company made conveyance to the St. Albans Realty Company, the latter executing to the Sea Haven Improvement Company a mortgage for $95,000 to secure a part of the purchase money. To make this mortgage a first lien, Braddock satisfied his mortgage given by Taylor, upon which $2,500 were still due, and to secure the payment thereof, took an assignment of the $95,000 mortgage as collateral.</p> <p>Wm. Keinath died May 14, 1898, in the city of Philadelphia, testate, and letters testamentary were duly granted to John S. Newman, the plaintiff, on May 20, 1898. On March 18, 1908, the plaintiff met Shreve at his home at Devon in this county, for the purpose of effecting a settlement respecting the proceeds of the sale of the property. At that time the plaintiff did not know the price paid by Taylor, but understood that the land had been properly disposed of for $15,000. He had no knowledge of the sale to Taylor for $33,000 until early in 1909, when the information was incidentally given him by Darnell. After deducting costs, expenses, fees, taxes, etc., from the $15,000 received, a balance of $3,029.69 remained, which Shreve paid to the plaintiff, there being due at the time, March 18, 1908, to the Keinath estate, $5,188.58, with interest from September 12, 1896, on the first mortgage and principal and interest on fourteen $100 bonds secured by the second mortgage.</p> <p>The decree of the court was as follows:</p> <p>“The bill is dismissed as to all of the defendants excepting Benjamin D. Shreve. He having received and accounted for the sum of $15,000, purchase money, is directed to account to the parties in interest for the further sum of $18,000, as if he had received $33,000 for the trust estate confided to him.”</p> <p>The court, on exceptions, subsequently modified its decree which reads as follows: “The bill is dismissed as to all of the defendants excepting Benjamin D. Shreve. He having received and accounted for the sum of $15,000 purchase money, is directed to account to the plaintiff for the further sum of $18,000, as if he had received $33,000 for the trust estate confided to his care, but in the event that the balance in his hands on a proper accounting is in excess of the amount due plaintiff on his mortgage and bonds, he shall be required to pay over only an amount sufficient to cover the sum due the plaintiff.”</p> <p>Error assigned was the decree of the court.</p>

<p>Municipal corporations — Cities of first class — Increase of indebtedness —Taxable 'property — Last assessed valuation — Acts of April 20, 1874, P. L. 65, and May IS, 1856, P. L. 567 — Constitution, art. IX, sec. 8— Taxes — Personal securities.</p> <p>1. The last preceding assessed valuation of taxable property to be taken under the Act of April 20, 1874, P. L. 65, as the basis for computing the two per centum borrowing limit of the city of Philadelphia for the year 1910, under art. IX, sec, 8, of the constitution providing that “The debt of any county, city, borough, township, school district or other municipality, or incorporated district, except as herein provided, shall never exceed seven per centum upon the assessed value of the taxable property therein, nor shall any such municipality or district incur any new debt, or increase its indebtedness to an amount exceeding two per centum upon such assessed valuation of property, without the assent of the electors thereof at a public election in such manner as shall be provided by law,” is the assessment made by the assessors in 1909, as revised by the board of revision and certified to the receiver of taxes on or before February 1, 1910, in accordance with the provisions of the Act of May 13, 1856, P. L. 567. The practice giving the board of revision equitable supervision over the assessments after the duplicates are in the hands of the receiver of taxes for collection is of doubtful authority and should not be encouraged.</p> <p>2. The law requires all the preliminary steps in the valuation of property to be taken so that the assessment shall be completed when the duplicates are certified to the receiver of taxes on or before February 1, and all of these things are presumed to have been done, and in contemplation of law have been done when the board of revision certifies the duplicates to the receiver of taxes for collection.</p> <p>3. The character of a tax is determined by the act which authorizes its imposition, and not by the use made of the revenue thus derived.</p> <p>4. The tax laid on personal securities as “money at interest” by the act of 1879 and its supplements, is a state tax, although the commonwealth returns a large part of it to the counties, and the personal securities upon which the tax is levied cannot be considered as property taxable for purposes of a city or county within the meaning of the constitution.</p> <p>Municipalities — Cities of first class — Appropriation for schools— Estimates — City controller — Act of April 22, 1905, P. L. 267.</p> <p>5. Under the Act of April 22, 1905, P. L. 267, requiring the councils of a city of the first class to annually appropriate for school purposes a sum not less than five mills “on each dollar of the total assessment of real property of the school district,” an appropriation made upon estimates furnished by the controller acting on requisitions by the board of education is the nearest approach possible to the exact amount which upon a completed valuation may be shown to be required with the information at hand when the appropriation is made and it is the method recognized by law for the purpose stated. If the board of education accepts the amount appropriated, maintains the school system out of this appropriation and settles its accounts with the city for the school year upon this basis, it has no further claim for an alleged deficiency.</p> <p>Cities — Net indebtedness — Deductions—Solvent debts — Act of April 20, 1874, P. L. 65.</p> <p>6. The Act of April 20, 1874, P. L. 65, providing for the ascertaining of the net indebtedness of a city by deducting from the gross indebtedness “the moneys in the treasury, all outstanding solvent debts and all revenues applicable within one year to the payment of the debt,” is constitutional.</p> <p>7. Municipal authorities cannot arbitrarily say that every claim of the city is an outstanding solvent debt, or that revenue necessary to pay current expenses can be set apart for the liquidation of outstanding obligations, but where there are bona fide outstanding debts due the city and revenues not necessary to meet current expenses are available for the payment of indebtedness within the year, such assets can be used for deductions under the provisions of the act of 1874, in ascertaining the net indebtedness.</p> <p>8. The statutes relating to municipal loans do not provide that there shall be a definite statement of purpose in an ordinance for a loan for temporary or other purposes such as is required to give notice to the public by the act authorizing a loan only upon direct vote of the people. The practice, however, is, as it ought to be, to set out in the ordinance the purpose or purposes for which the indebtedness is to be incurred, even when the loan is for temporary purposes and authorized by ordinance without a vote of the people.</p>

<p>Corporations — Manufacturing companies — Exemption for capital stock tax — Act of June 8, 1898, P. L. 898.</p> <p>1. The holding of a foreign charter does not take a manufacturing corporation out of the class exempted from the payment of capital stock taxes.</p> <p>2. A paving and construction company, incorporated to do a manufacturing business, and engaged in the business of manufacturing cement floors, asphalt floors, pavements, roadways and structural concrete, is primarily engaged in a manufacturing business within the purview of the act of June 8, 1893, and is entitled to exemption from payment of capital stock taxes. If any part of its capital is not so employed the burden is on the commonwealth to show what part and how much of its capital is not so employed in order to fix a valuation for the purposes of taxation.</p> <p>3. While the purpose stated in the charter of a corporation is not conclusive of the nature and character of the business to be transacted, it does primarily indicate the purpose for which the corporation is created, and the burden rests upon those who challenge the primary purpose stated in the certificate of incorporation to show that it is something different.</p>

<p>Street railways — Bond—Municipal corporations — Liquidated damages — Penalty—Noncompletion of road — Delay—Burden of proof— Estoppel.</p> <p>1. The question whether the amount stated in a conditional bond or contract is to be taken as a penalty or a liquidation of damages ■ arising from breach of the condition, is to be determined by the intention of the parties, drawn from the words of the whole contract, examined in the light of its subject-matter and its surroundings, and in this examination it is necessary to consider the relation which the sum bears to the extent of the injury which may be caused by the several breaches provided against, the ease or difficulty of measuring a breach in damages and such other matters as are legally or necessarily inherent in the transaction.</p> <p>2. The whole sum named to stand as security generally may by express contractual stipulation be made collectible as liquidated damages for a particular designated breach provided the damages flowing from such breach would obviously be impossible or most difficult to ascertain by reference to any exact pecuniary standard of measurement.</p> <p>3. Where a street railroad company agrees, in accordance with the terms of a city ordinance, to commence the construction of a street railway by a certain date and to complete and operate same as an entirety upon all the streets named in the ordinance within a stipulated time, and furnishes a bond for $25,000, conditioned to comply with the ordinance and to indemnify the city from loss or damage arising from breach, and agreeing “that the said bond shall become forfeited to and collectible by the city as assessed and liquidated damages due and owing said city in event of failure of the company to complete and operate its line of railway within the time stated; for which bond, after the company shall have completed and begun to operate its railway line shall be substituted the bond of the company in the sum of $5,000,” the city is entitled to collect $25,000 on the bond, as liquidated damages in case of failure to complete and operate the railway within the stipulated time.</p> <p>4. In such case, if the railway company desires to plead an excuse for its failure to complete and operate its line within the time limit, the burden is upon it to show that the matter relied upon actually caused or contributed to its failure. A temporary delay, from no matter what source, would not serve to relieve the company from its contractual obligations, if, as a matter of fact, it did not cause or contribute to the ultimate failure to comply with the ordinance.</p> <p>5. In such case, the fact that the city stood by and saw work done on the line after the expiration of the time limit, required the company to expend money in paving a street, and accepted a percentage of the gross earnings on the tracks laid as stipulated in the ordinance, does not estop the city from collecting the amount stipulated as liquidated damages for default in not completing and operating the line on time, there being nothing upon the record to show that the city claimed a forfeiture of the franchise or raised any question as to the right of the company to use the part of the line that it had completed and was paying the percentage upon.</p>

<p>Pleading — Practice, C. P. — Amendment—Cause of action — Ejectment ■ — Adverse possession.</p> <p>1. A plaintiff may amend bis declaration at any time during the trial as lie pleases, provided only that he does not introduce a new cause of action.</p> <p>2. A cause of action is the particular matter for which suit is brought.</p> <p>3. In ejectment the cause of action is the possession of land by one to the exclusion of another entitled to the possession of it.</p> <p>4. In an action of ejectment where a borough seeks to recover a small piece of land, which is averred to be a part of an established highway, and the defendants set up a title in fee simple under certain acts of assembly, the borough will not be permitted in rebuttal under the original pleadings to show title by adverse possession for the statutory period; but it will be permitted to amend its statement and abstract of title by adding thereto an averment of adverse possession, so as to introduce evidence of title acquired by such possession. Such an amendment does not introduce a new cause of action.</p> <p>Canals — Roads and highways — Title—Exclusive occupancy by state.</p> <p>5. Where the commonwealth enters upon land and occupies it for purposes necessarily incident to the permanent operation of a canal, a title absolute and in perpetuity is vested in the commonwealth and is exclusive in character, so that there can be no joint occupancy of the land by another with the commonwealth, so as to vest in such other any title whatever. If the land so appropriated is the bed of a highway, it is freed from the incumbrance of the highway, and the borough in which it lies has no standing to maintain an ejectment for it against the successors to the absolute title of the commonwealth.</p>

<p>Appeal, No. 339, Jan. T., 1909, by defendant, from judgment of C. P. Northampton Co., Dec. T., 1907, No. 7, on verdict for plaintiff in case of W. J. Kuebler, Receiver of Sterlingworth Railway-Supply Company, v. Harry B. Haines, defendant, and Pennsylvania Brake-Beam Company, garnishee.</p> <p>Foreign attachment on assumpsit for goods sold and delivered. Before Scott, P. J.</p> <p>At the trial the court refused under objection and exception to permit the defendant to offer proof of damage sustained by him by reason of the failure of the Sterling-worth Railway Supply Company to deliver to him (balance of) goods for which he had contracted. [1, 2]</p> <p>The court gave binding instructions to find for the plaintiff for the full amount of the claim.</p> <p>Verdict and judgment for plaintiff for $2,920.48. Defendant appealed.</p> <p>Errors assigned were (1, 2) rulings on evidence, quoting the bill of exceptions, and (3) above instructions.</p>

<p>Appeal, No. 90, Jan. T., 1910, ■by defendant, from judgment of C. P. Luzerne Co., June T., 1904, No. 127, on verdict for plaintiffs in case of Frederick Brandmeier and Mary Mills v. Pond Creek Coal Company.</p> <p>. Assumpsit for use and occupation of coal land. Before Fuller, J.</p> <p>At the trial plaintiffs offered in evidence the record of the ejectment suit of the plaintiffs against the defendant, with the verdict and judgment thereon, followed by the habere facias for the possession of the land for the use and occupancy of which and the use thereof, suit in this case is now pending, for the purpose of showing that the judgment was in favor of the plaintiffs.</p> <p>Defendant objected to the evidence as being immaterial and irrelevant to this issue.</p> <p>Objection was overruled, the evidence admitted, exception noted and bill sealed for defendant. [6]</p> <p>Defendant presented this point:</p> <p>1. The plaintiffs have -declared in assumpsit for the use and occupation of land by the lessee of two of the four tenants in common, and for mining coal thereon, and having failed to show a contractual relation between plaintiffs and defendant, either by an express promise or such facts as would imply a promise by defendant to pay plaintiffs for such use and occupation, and for such coal mined, are not entitled to recover. Answer: I refuse all of the points presented by defendant. [1]</p> <p>Verdict and judgment for plaintiffs for $13,471.64. Defendant appealed.</p> <p>Fullee, J., filed the following opinion:</p> <p>On motion for a new trial and for judgment non obstante veredicto the defendant now urges:</p> <p>1. That the action cannot be maintained in its present form of assumpsit.</p> <p>The prsecipe, the writ, and the statement, all designate the action as one of assumpsit, although the claim set forth in the statement and urged upon the trial was one for damages suffered by ouster of plaintiffs from the common property, and not arising from contract express or implied.</p> <p>We cannot pronounce a panegyric upon the skill displayed in the pleadings, nor are we asked to do so, but that is a lost art and if a fair trial has been had upon the merits, we should dislike to upset the whole proceeding on the technical distinction between trespass and assumpsit.</p> <p>The logic of defendant’s contention is that if the cause of action be regarded as assumpsit for use and occupation, it fails for want of a contract, and if it be regarded as trespass for mesne profits, it fails for disregard of the form. But in National Oil Refining Co. v. Bush, 88 Pa. 335, it was said that an action for use and occupation “is not necessarily founded upon a specific contract, written or oral, but upon the use of the premises. The occupant may be in fact a trespasser, but the owner of the tenement may waive the trespass and recover in assumpsit and it does not lie with the tort feasor to defeat him by interposing his own wrong.”</p> <p>This case was not mentioned in Reilly v. Crown Petroleum Co., 213 Pa. 595, where the plaintiff after recovery in ejectment brought an action of assumpsit in which the statement showed a liability in trespass for mesne profits, and a demurrer to the statement was upon that ground sustained; but the last-cited case in turn was not mentioned in Sipe v. Penna. Railroad. Co., 219 Pa. 210, in which it was held that a demurrer on that ground should not be sustained.</p> <p>No doubt the apparent inconsistency may be reconciled, but without undertaking the task we will simply hold that after plea in bar, without demurrer, the defect is cured against attack on objection to evidence, motion for nonsuit, or request for binding instructions.</p> <p>In either form of action the essence of the claim when defendant is in actual occupancy, is the use of the property measured by rental value, and the whole sum and substance of' the situation as here presented on pleadings and proof is that the plaintiffs have brought an action of assumpsit to recover their proportionate share of the rental value during the period of exclusive occupancy by the defendant.</p> <p>The defendant also invokes the Act of April 25, 1850, P. L. 573, as affording an exclusive remedy between tenants in common, barring both trespass and assumpsit, but that act in terms applies to an accounting for coal, iron ore, or other minerals taken by said tenants respectively, while the plaintiffs in this case do not seek any such accounting.</p> <p>We hold, therefore, that the action of trespass would have been proper, but that no advantage can be taken of the technical error committed in designating the action assumpsit, and that the defendant’s contention on this point must be denied.</p> <p>Errors assigned amongst others were (1) above instruction, quoting it, and (6) rulings on evidence, quoting the bill of exceptions.</p>

<p>Appeal, No. 64, Jan. T., 1910, by defendant, from judgment of C. P. Clearfield Co., May T., 1909, No. 42, on verdict for plaintiffs in case of H. B. Mahaffey and 11. F. Mahaffey v. New York Central & Hudson River Railroad Company.</p> <p>Trespass to recover damages for the negligent burning over of woodland. Before A. O. Smith, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were (1-12) various rulings on evidence and instructions sufficiently appearing by the opinion of the Supreme Court.</p>

<p>Appeal, No. 326, Jan. T., 1909, by plaintiff, from judgment of C. P. Cumberland Co., Feb. T., 1909, No. 129, on verdict for defendant in case of George D. Kelley et al. v. Cumberland County.</p> <p>Trespass to recover damages for personal injuries alleged to have been caused by negligence in repairing a public road. Before Sadler, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgmentfor defendant. Plaintiff appealed.</p> <p>Error assigned was the instruction of the court.</p>

<p>Appeal, No. 184, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 62, on verdict for plaintiffs in case of Safe Deposit & Trust Company of Pittsburg, Trustee under the will of William A. Nimick, deceased, Arthur O. Fording, Guardian of Eleanor H. Nimjek, a minor, Ella H. Nimick et al. v. Bovaird & Seyfang Manufactoring Company.</p> <p>Ejectment for land fronting on Ross street in the city of Pittsburg. Before Evans, J.</p> <p>At the trial it appeared that Alexander Nimick by deed dated March 1, 1890, conveyed a lot of land abutting on ' First avenue to the defendant, “and also all the estate, right, title and claim of the party of the first part of in and to the ground formerly occupied by First Avenue, now vacated.” Subsequently the same grantor by a quitclaim deed granted another lot to W. A. Nimick, abutting on Ross street, and including within the description in the deed a portion of the vacated part of First avenue.</p> <p>When Walter Bovaird was on the stand the following offer was made:</p> <p>Counsel for defendant proposes to prove by the witness on the stand that he met, in February of 1890, Alexander Nimick, the grantor named in his deed dated March 1, 1890, to David Bovaird and John L. Seyfang, as a purchaser of this property described in this deed, the witness then representing his father, David Bovaird, and John L. Seyfang, as their agent and that the grantor, Alexander Nimick, went upon the property in question and described in this deed, showed it to the witness, walked with him over the portion of First avenue between Ross street and Try street, and pointed out the advantages that went with the property; that he proposed to sell his rights in the vacated portion of First avenue, being then the northerly half of First avenue, making this particular piece of property accessible to the railroad switch at Try street and to Ross street; that he • represented himself to be the owner of the property between Second avenue and the vacated portion of First avenue, and that he had an interest or some title in the vacated portion of First avenue between Ross street and Try street; that he would not guarantee what it was, but that whatever it was he would sell it with the property; and that the grantor knew at that time that the purchase of the property was being considered for a manufacturing site in which the use of First avenue was an absolute requisite and that later on the deed offered in this case was delivered to the witness and the purchase money therein paid as a conveyance of the property so offered and purchased, with the rights of Mr. Nimick, the grantor in this deed, as he represented.</p> <p>Objected to as incompetent and irrelevant to any issue in this case. Objection sustained.</p> <p>To which ruling counsel for defendant requests an exception. Exception. [7]</p> <p>I further propose to prove by the witness that immediately after the purchase of this property and in the lifetime of Alexander Nimick, his father, the purchaser, with John L. Seyfang, the other purchaser, began the erection of the buildings now upon the property purchased by them, situate between Second avenue and the portion of First avenue vacated, with a blacksmith shop fronting on First avenue and a driveway fronting on the vacated portion of First avenue and a crane erected on the vacated portion of First avenue, and that the grantees, David Bovaird and John L. Seyfang, and the Bovaird & Seyfang Manufacturing Company have since the conveyance on March 1, 1890, by deed, continuously used the vacated portions of First avenue as a passageway or driveway for their teams and wagons, down to 1896, the period during which time this witness was a constant employee at the defendant’s plant, to be followed by other testimony showing its use down to the present time.</p> <p>The Court: That is, its use for a driveway?</p> <p>Mr. Ritchey: Yes, its use as a driveway down to the present time; that is, the property in dispute.</p> <p>The Court: There was no erection of any structure by the Bovaird-Seyfang Company on the property in dispute?</p> <p>Mr. Ritchey: No.</p> <p>Mr. Patterson: The offer is objected to as incompetent and not relevant to any issue raised in this case.</p> <p>Objection sustained. .To which ruling counsel for defendant requests an exception. Exception allowed. [8]</p> <p>Verdict and. judgment for plaintiffs. Defendant appealed.</p> <p>Errors assigned were (1) giving binding instructions for plaintiff; (5, 6) overruling certain questions addressed to Walter Bovaird, quoting the bill of exceptions, and (7, 8) overruling offers of evidence, quoting the bill of exceptions.</p>

<p>Criminal law — Murder—Defenses—Intoxication—Use of drug.</p> <p>1. The mere intoxication of a person charged with murder will not excuse or palliate his offense unless he was in such a state of intoxication as to be incapable of conceiving any intent. If he was, his offense is reduced to murder in the second degree.</p> <p>2. Intoxication from the voluntary excessive use of opium or any other drug taken to gratify the appetite is considered in the law the same as intoxication from the voluntary use of liquors.</p> <p>Criminal law — Murder—Evidence—Accusation—Standing silerit.</p> <p>3. In a murder trial a witness for the commonwealth may be permitted to testify that he said in the presence of the defendant, who was standing within four feet of him, with the deceased’s body lying before them, “that is something you ain’t going to get away with.” In such a case it is for the jury to say whether the defendant heard the remark, and also whether or not the remark was in the nature of an accusation, and what effect they would give to the standing silent of the defendant under the circumstances.</p> <p>4. Where the trial judge in a colloquy between counsel and the court over a remark of the district attorney in his argument, suggests that anger or revenge over the loss of money might have been the motive for the killing, and there is evidence upon which the judge might have made such a suggestion in his charge, a verdict of guilty will not be set aside because of the suggestion made by the trial judge.</p> <p>5. A verdict of guilty in a murder case will not be set aside where the district attorney permitted a woman to sit by his side during the trial whom he supposed to be the wife of the deceased and addressed as such, where it appears that the woman had lived with the deceased as his wife, had seen the killing, and was in court as a witness for the commonwealth.</p>

<p>Appeal, No. 226, Jan. T., 1910, by defendant, from judgment of O. & T. Northumberland Co., Dec. T., 1909, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Joe Polichinus.</p> <p>Indictment for murder. Before Savidge, P. J.</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were (4) portion of charge quoted in the opinion of the Supreme Court.</p> <p>2. "When the assistant district attorney said to Peter Shelsky, defendant’s witness, “Didn’t I say to you up in Mt. Carmel, after I was through talking to you, that you were a little liar?” and to which defendant objected, the court erred, because it did not immediately reprimand the assistant district attorney, and request him to withdraw the remark and instantly caution the jury to entirely disregard the same.</p> <p>3. The court erred in admitting the testimony of E. J. Kaufman, a witness for the commonwealth, who testified that while he was on the mountain side, chopping wood, one mile west of the place of the shooting, and four hours before the shooting, the defendant came to him and in a general conversation, idly asked of Kaufman at what part of the body he would aim to shoot a man if he desired to kill. Whereupon the witness said, that he would, shoot him in the heart, to which the defendant replied that he would shoot him “across the back, or somewhere;” which conversation was not a part of the res gestae, and not in the nature of a threat made against the decedent or anyone else, and after which the defendant came down from the mountain side, into the borough of Mt. Carmel, and was seen there for several hours before the shooting of the decedent took place, as shown by the commonwealth’s own testimony.</p>

<p>Appeal, No. 3, May T., 1911, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket No. 455, dismissing bill in equity in case of George E. Etter v. Robert McAfee, Secretary of the Commonwealth of Pennsylvania, Isaac S. Hoffman, Samuel S. Miller and W. W. Wallower, County Commissioners, and D. Frank Lebo, Commissioners’ Clerk of the County of Dauphin, and J. Rowe Fletcher, Sheriff of the County of Dauphin.</p> <p>Bill in equity to restrain the secretary of the commonwealth from certifying the names of the candidates for state treasurer to the county commissioners, and that the county commissioners of Dauphin county be restrained from printing the names of the candidates for state treasurer on the ballot or sending the names to the sheriff, and that the sheriff be restrained from advertising or making proclamation of an election for state treasurer.</p> <p>The defendants demurred to the bill.</p> <p>The court sustained the demurrer and dismissed the bill.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Criminal law — Murder—Point for charge — Self-defense.</p> <p>Where in a murder trial the prisoner presents a point involving self-defense, but not correctly stating the law, and not founded on the testimony, the prisoner cannot complain if the court refuses unqualifiedly to affirm the point. In such a case, if the court affirms the point with a full explanation of the law governing the right of self-defense, the prisoner has the advantage of an instruction to which he is not in fact entitled.</p>

<p>Appeal, No. 207, Jan. T., 1910, by defendant, from judgment of O. & T. Montgomery Co., on verdict of guilty of murder of the first degree in case of Commonwealth v. John Ballon.</p> <p>Indictment for murder. Before Swartz, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned were in the following form:</p> <p>1. The court below erred in allowing the jury to consider evidence of attempts to break and enter the murdered man’s house several weeks in advance of the date of the actual commission of the crime charged.</p> <p>2. The court below erred in allowing the confession of Felix Fare to be read to the jury, and in not instructing the jury that the circumstances attending the reading of the confession made it at least a quasi judicial proceeding, and therefore the prisoner’s silence or other actions were not competent evidence.</p>

<p>Criminal law — Murder — Evidence —■ Malice — Premeditation — Insanity.</p> <p>1. A conviction of murder of the first degree will be sustained where the evidence, apart from any proof of the prisoner’s insanity, shows that the prisoner went in the evening to the house in which the murdered man was eating his supper, called him to the front door, drew a revolver, fired three shots all of which took effect, resulting in almost instant death, and that he then ran off, and while attempting to make his escape, threw his revolver into a graveyard.</p> <p>2. Where on the trial of an indictment for murder the trial judge in his charge first calls the attention of the jury to the contentions of the commonwealth, and immediately explains that the case of the commonwealth must be considered in connection with the defense of insanity set up by the prisoner, and then takes up the contentions of the prisoner, what is said in the charge relating to the commonwealth’s case must be considered in connection with the instructions as to insanity and the instructions as to the prisoner’s contentions.</p> <p>3. Where, upon the trial of an indictment for murder, the charge covers the general rules of law applicable to the defense of insanity, an omission to charge specifically on the subject of.delusions, with which the prisoner is alleged to have been afflicted, is not ground for reversing a conviction, where the record shows that no request was made at the trial for more definite instructions as to such delusions.</p> <p>Criminal law — Murder—Degree of murder.</p> <p>4. On the trial of an indictment for murder the trial judge cannot be charged with insufficiently instructing the jury as to the degrees, where he points out the distinction between the two degrees and specifically states that the burden is upon the commonwealth to show a deliberate intent to take life before the crime could be raised from murder of the second to the first degree.</p> <p>5. Under such circumstances the failure of the trial judge, when no request is made to so charge, to instruct the jury that the killing having been proved, the law presumes a murder no higher than of the second degree, is not reversible error. The facts and not the presumptions control.</p>

<p>Appeal, No. 74, Oct. T., 1910, by plaintiffs, from order of C. P. Cambria Co., Sept. T., 1908, No. 447, refusing to take off nonsuit in case of Sarah A. Rager et al. v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband.</p> <p>The opinion of Reed, P. J., specially presiding, stated the circumstances of the accident to be as follows:</p> <p>The deceased with a number of others attended a celebration of some kind at Johnstown, Pa., the evening of October 31, 1907. They resided at South Fork, a short distance from Johnstown, and returned home on the train leaving Johnstown shortly after eleven o’clock that night. It was a vestibule train and the coaches were more or less crowded. The evidence, however, failed to show the number of cars composing the train, or whether all were crowded or not. The deceased entered the train between the first and second coaches, and with several others remained in the vestibule between these two coaches. He made no effort to enter either coach, but remained in the vestibule until the time of the accident which resulted in his death. He with the others standing in the vestibule, shortly after the train left Johnstown, was requested by the brakeman in charge of the first and second coaches to go inside, but the request was not complied with. When the train was nearing the South Fork station the brakeman. asked the deceased and others who were standing on the trapdoor in the vestibule next the second coach to get off the trap so that he could open the door. They moved off and the brakeman opened the floor and outside doors preparatory for the discharge of passengers at the station which the train was .approaching. The doors on the station side were opened both at the rear end of the first coach and at the front end of the second coach, and when opened the train was within about one-half mile of the station. At the rate it was running, it would take about one minute to reach the station. After opening these doors the brakeman was required to pass through the second coach and make similar preparations for the discharge of passengers by opening the doors between the rear end of the second and the front end of the third coaches. The accident occurred immediately after the brakeman opened the floor and outside doors at the front end of the second coach. None of the witnesses explained just how it happened.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 152, Oct. T., 1910, by plaintiff, from judgment of C. P. Cambria Co., Dec. T., 1907, No. 186, on verdict for defendant in case of Use of T. J. Pearce v. Emma Walters.</p> <p>Issue to determine the validity of a judgment entered on warrant of attorney for $7,350. Before O’Connor, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff in the sum of $4,195.74. Plaintiff appealed.</p> <p>Errors assigned were various rulings and instructions.</p>

Appeal, No. 153, Oct. T., 1910, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1909, No. 24, on verdict for defendant in case of Charles Reesé v. Pennsylvania Railroad Company, a corporation, lessee or owner and operating the Allegheny Valley Railway Company. Trespass to recover damages for personal injuries. Before Patton, P. J. The facts are stated in the opinion of the Supreme Court. The court ga've binding instructions for defendant.

Appeal, No. 80, Oct. T., 1910, by defendant, from judgment of C. P. No. 4, Allegheny Co., No. 1 of Second T., 1908, Sur No. 983, Third T., 1907, for plaintiff non obstante veredicto in case of R. A. Saxton v. John T. Morris. Assumpsit for commissions for selling real estate. The facts are stated in the opinion of the Supreme Court. At the trial the jury returned a verdict for defendant.

Appeal, No. 85, Oct. T., 1910, by defendant, from judgment of C. P. Westmoreland Co., Nov. T., 1904, No. 270, on verdict for plaintiff in case of Mary A. Hunter v. William A. Hunter. Ejectment for land in Mt. Pleasant township. Before Doty, P. J. At the trial it appeared that John Galloway died on October 27, 1883, seized of the land in question, and leaving a will by which he devised it to his two nephews James Hunter and William Hunter.

Appeal, No. 118, Oct. T., 1910, by defendants, from decree of C. P. Westmoreland Co., No. 633 Equity, on bill in equity in case of Shenango Furnace Company v. The Township of Fairfield and C. A.… Held: as aforesaid, and therefore adjusted valuations could not be made as yet; and the commissioners did not furnish to said road supervisors any adjusted valuation for county purposes for the year 1907.

Appeal, No. 149, Oct. T., 1910, by Margaret Rorabaugh, from decree of O. C. Westmoreland Co., Feb. T., 1910, No. 59, disallowing claim against estate of David Rorabaugh. Exceptions to adjudication. Before Steel, P. J. The opinion of the Supreme Court states the case. Error assigned was decree disallowing claim and dismissing exceptions to adjudication.

Appeal, No. 157, Oct. T., 1910, by plaintiff, from judgment of C. P. Westmoreland Co., Feb. T., 1898, No. 864, on verdict for plaintiff in case of Denna C. Ogden v. The Pennsylvania Railroad Company. Appeal from award of viewers.

Appeal, No. 28, Oct. T., 1910, by defendant, from judgment of C. P. Forest Co., Feb. T., 1908, No. 7, on verdict for plaintiff in case of L. S. Clough v. James C. Welsh. Ejectment for land in Howe township, Before Bouton, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff. Defendant appealed. Errors assigned were (1-32) various rulings on evidence and instructions.

Appeal, No. 91, Oct. T., 1910, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1908, No. 257, on verdict for plaintiffs in case of Barbara Pifer et al. v. Josiab L. Berkey. Issue under the Act of June 10, 1893, P. L. 415, to determine title to land. The petition for an issue was as follows: The petition of Josiah L. Berkey, respectfully represents: That he is a resident of the township of Lincoln, in said county of Somerset.

<p>Appeal, No. 93, Oct. T., 1910, by defendants, from judgment of C. P. Somerset Co., Sept. T., 1906, No. 225, on verdict for plaintiffs in case of Wickes Brothers v. Island Park Association and Joseph K. Love, intervening defendant.</p> <p>Replevin for machinery. Before Kooser, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court gave binding instructions for plaintiffs.</p> <p>Verdict and judgment for plaintiffs for $3,720. Defendant appealed.</p> <p>Error assigned was in giving binding instructions for plaintiffs.</p>

<p>Sale — Personal property — Contract—Delivery f. o. b. — Carriers.</p> <p>1. When a contract for the sale of personal property calls for delivery f. o. b. at some particular place, and the seller there delivers the article in accordance with the stipulations, the title to the property at once passes to the buyer, unless otherwise provided. This rule yields, however, where the contract reserves to the seller the right of property, notwithstanding his delivery to the carrier.</p> <p>2. Where machinery is sold f. o. b. cars at the place of manufacture, and the complete machinery is so delivered, and there is nothing whatever to indicate that the seller either in the bill of lading, or by any agreement with the carrier or with the purchaser reserved a right of property in the machinery, notwithstanding the delivery f. o. b., the title to the machinery passes immediately on the delivery on the cars and this is the case although a portion of the purchase money was unpaid, and the seller was to send a man to the purchaser’s establishment to install the machinery.</p>

<p>Bond — Nonnegotiable instrument — Confession of judgment — Assignment of bond — Mo'rtgage—Act of May 16,1901, sec. 5, P. L. 194.</p> <p>1. Under the Act of May 16, 1901, sec. 5, P. L. 194, the effect of a provision in a bond authorizing a confession of judgment before maturity is to make the instrument nonnegotiable.</p> <p>2. The assignee of a bond who fails to make inquiry, takes it subject to any defense to which it was subject in the hands of the obligor; the same rule applies to the assignee of a mortgage.</p> <p>3. Where a person executes a judgment bond and mortgage to another who has no interest in the transaction, and gives no consideration, and whose name is only used to facilitate a loan, and such mortgagee assigns the bond and mortgage to a third person who pays the obligor’s agent a sum much less than the face of the bond and mortgage, and it appears that the obligor never authorized cither the mortgagee or the agent to dispose of the bond and mortgage for anything less than its face value, the assignee is not entitled to the face value of the bond, and if he has entered judgment on the bond, the obligor will be entitled to have the judgment opened so that he may defend against any sum over and above what the assignee actually paid.</p>

<p>Negligence — Railroads—Passenger—Crossing tracks at station — “Stop, look and listen.”</p> <p>One who is struck by a moving train, which was plainly visible from the place where it was his duty to stop, look and listen, will be conclusively presumed to have gone into an obvious danger. This rule applies to a passenger who attempts to cross a double-track railroad at a station when he had, before crossing, an unobstructed view in the direction from which the train came for 800 feet and the engine was then within 200 feet of the plank crossing over which he attempted to go.</p>

<p>Appeal, No. 72, Oct. T., 1910, by plaintiff, from order of C. P. Westmoreland Co., May T., 1907, No. 297, refusing to take off nonsuit in case of Martha Cannon v. C. C. Hileman.</p> <p>Ejectment for a lot in Greensburg. Before Doty, P. J»</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Mines and mining — Coal mining — Surface support — Lateral support— Measure of damages.</p> <p>1. Where there is no waiver of surface support, the owner of the surface is entitled to absolute support of his land, not as an easement or right depending on a supposed grant, but as a proprietary right at common law, and this right which the servient estate owes to the dominant estate does not depend on whether the mining operations are conducted skillfully or negligently and carelessly.</p> <p>2. If an injury caused by failure to support the surface is reparable or curable with reasonable effort and expense less than the value of the property, the measure of damages is what it will cost to make the repairs. If the injury is permanent the measure of damages is the difference in market value of the land before and after the injury inflicted by the mining operations.</p> <p>3. The principle that the owner of land has the right to mine and remove his coal without liability for injuries done subterranean streams of water flowing to neighboring land has no application to the right of the owner of the surface against the owner of the coal thereunder to recover damages for injuries to the surface by mine operations.</p> <p>Evidence — Cross-examination—Examination in chief.</p> <p>4. A party will not be permitted in cross-examination to introduce matters which should have been introduced in the examination in chief, if competent at all.</p> <p>5. In an action to recover damages for injuries to surface of land where a witness testifies that he had seen depressions in the surface caused by the removal of coal below, he cannot on cross-examination be asked whether he had not in another case, concerning different land, testified that he had seen depressions due to the removal of coal, and that subsequently it had been ascertained that no coal had been removed from the land in question.</p>

<p>Promissory notes — Indorser—Fraud—Act of May 16, 1901, P. L. 194 — Banks and banking — Cashier—Interested icitness — Qwstion for fury.</p> <p>1. In an action by a bank against the indorser of a promissory note where the defendant shows that the note was procured from him by fraudulent act of the maker, the burden is upon the bank to show affirmatively that it was an innocent purchaser for value without knowledge of the fraud. If in assuming such burden the bank presents as its only witness its own cashier, the case must go to the jury so as to permit that body to pass upon the credibility of the cashier, although his testimony may not in any way have been contradicted.</p> <p>2. When the establishment of a question of fact depends upon oral testimony, the credibility of the witness or witnesses is for the jury alone, and it is their exclusive province to determine whether from such testimony the fact in dispute has been established.</p>

<p>Appeal, No. 14, Jan. T., 1910, by plaintiff, from decree of C. P. Northumberland Co., Dec. T., 1907, No. 337, fixing valuation of coal lands in case of Mineral Railroad & Mining Company v. Northumberland County Commissioners.</p> <p>Appeal from valuation of coal lands by the board of revision.</p> <p>Savidge, P. J., and Auten, J., filed the following opinion:</p> <p>This investigation involves thirty-four so-called coal tax appeals, covering 116 separate properties, running into several million dollars in value.</p> <p>Valuation for the purpose of taxation being largely a question of comparison it was found necessary to cover the entire anthracite coal field of Northumberland county, the .unappealed properties as well as those covered by the appeals.</p> <p>These appeals are from the commissioners’ valuations on assessments of 1907. They first came to the court on February 24, 1908.</p> <p>Upon consultation with counsel concerned for the various coal property owners, counsel for the commissioners, and the commissioners, it was deemed advisable to appoint what has now become known as the coal tax commission, to take evidence, make personal investigation upon the ground and report values. This commission was composed of two experienced expert mining engineers, the one being from Luzerne county and the other from Lackawanna county, and an intelligent business man from Watsontown, Northumberland county, none of whom is in any wise connected with coal interests in Northumberland county. The personnel of this commission-was entirely acceptable to all parties in interest.</p> <p>They were instructed to report upon not only those properties where appeals were pending but upon all anthracite coal properties in Northumberland county.</p> <p>Regardless of what has been the outcome of the inquiry as to the property involved in the appeals, the appointment of a commission has proved to be a wise move, for the reason that their tabulated report has called attention to large inequalities as to a vast number of properties not involved in the appeals. For instance, there were no appeals by the Philadelphia & Reading Coal & Iron Company covering their properties in Mount Carmel township. The coal commission has discovered on this block of properties alone .an undervaluation of 1766,657.</p> <p>From the exigencies of the case, it has been impossible for the court, with the assistance of the coal commission, to reach such conclusions as would do justice to the various property owners and interests, for the following reasons: In the first place, we were confined in our action to those properties in which appeals were pénding. Secondly, the law does not permit us to increase values beyond those fixed by the county commissioners sitting as a board of revision, except where such valuation was less than that fixed by the assessor, which was the case in a single instance only.</p> <p>Manifestly, it would be unjust to sustain valuations affecting property of one company fixed far in excess of the values placed upon as good or better neighboring lands over which we had no control, belonging to other companies. In such cases it was found absolutely necessary to reduce values in order to maintain a semblance of equality between the taxables. It follows that we could not, with any degree of justice, more than arrive at an approximation of actual values, hence we do not consider that our figures ought to be taken as a criterion for future valuations by assessors or the county commissioners sitting as a board of revision. In many instances we would increase valuations had we the power so to do. In some instances we might still further lower them were it not for the injustice that would be done to individual and small owners.</p> <p>The coal tax commission, as well as the court, has been greatly hampered for lack of material testimony. In very few cases has there been anything upon which we could calculate values and in no instance has a single witness testified to the probable selling value, at a bona fide sale, of the property under consideration. All parties seem to have fought shy of the one vital question at issue and it has made our task a very discouraging one.</p> <p>We have done the very best we could under the circumstances and can only express the hope that, if these questions ever again come before us, they may be under such conditions as will afford opportunity to reach conclusions in the light of ample material testimony.</p> <p>We are filing this opinion to No. 337, December Term, 1907, because that appeal includes the Thomas Hamilton tract, carrying the highest per acre valuation of any anthracite coal land in this county; therefore, it, the best of any, affords opportunity for comparison and illustration.</p> <p>Before proceeding, however, with matters touching directly this appeal and other appealed lands in the neighborhood of the Hamilton, we call attention, generally, to the conditions in Mount Carmel township, leaving out of question the lands of the Penn Anthracite Coal Company, as to which settlements have recently been reached. The coal lands of that township are in three separate large holdings, namely: those of the Philadelphia & Reading Coal & Iron Company, the Lehigh Valley Coal Company and the Mineral Railroad & Mining Company. The county commissioners’ valuations of the mineral company lands seem to be greatly out of proportion to the valuations of the holdings of the Philadelphia & Reading Coal & Iron Company. As already seen, the coal commission has increased the Philadelphia & Reading’s valuations $766,657. This increase being the valuation for assessment purposes and not actual value. We have also called attention to the fact that the court is powerless to increase the county commissioners’ valuation for the reason that there are no. appeals by the Reading company.</p> <p>The coal commission has already largely reduced the valuations of the mineral company lands. Notwithstanding these reductions, however, they still remain far in excess of those of the Philadelphia & Reading Coal & Iron Company. Were we to still further reduce the mineral’s valuation, too great injustice would be done to the small property owners of the township. Were we to restore them to the-valuation placed upon them by the county commissioners, we would still further increase the already glaring inequality between the reduced coal commission’s valuations and the county commissioners’ valuations of the Philadelphia & Reading’s lands, which cannot be changed. We have, therefore, concluded that the coal tax commission’s valuations of the mineral’s land ought to stand.</p> <p>As showing these inequalities we instance a single case, that of the William Sheed tract, which is undeveloped, in the heart of the basin and owned in part by the mineral company and in part by the Reading. The Reading company owns considerable more than two-thirds of this tract upon which the county commissioners placed an assessed valuation of $2,730.' The portion owned by the mineral company, being less than one-third of the tract, was valued by the county commissioners at $97,344. The coal commission has reduced the assessed valuation of the mineral tract slightly, bringing it down to $96,600. They have raised the Reading portion of this tract from $2,730 to $132,339. There still seems to be an inequality as against the mineral company. Other mineral tracts adjoining have been more largely reduced by the coal commission, and many of the Reading tracts have been increased but, as we are powerless to take advantage of the coal commission’s increase of the Reading tracts, it would be gross injustice not to accept the coal commission’s reduction on the mineral valuation.</p> <p>As to the Lehigh Valley lands, the large block at the eastern end of the township, consisting of the Miller, Kennedy, Tunis, Smith, Davis, Jordan and others, is practically exhausted of coal and the lands of comparatively little value and we must therefore accept the coal commission’s valuation, especially in view of the fact that the adjoining and near by Reading lands enjoy, in comparison, so great an advantage over their neighbors. We find their exhausted condition from the overwhelming testimony in the case. If it were otherwise it is fair to presume there would have been counter testimony on behalf of the county. There is none — absolutely none.</p> <p>Coming to the block of lands belonging to the Lehigh Valley Company, located partly in Mount Carmel and partly in Coal township, being what are known as the Brown lands, consisting of- the White, Reese, Thompson, and other tracts, we have concluded, notwithstanding the reduction made by the coal commission, the county commissioner’s valuations ought to be restored. These are virgin lands lying in the center of the basin, with adjoining lands proven and ought to be of as great value per acre as the William Tomlinson, the Sheed, the Wm. Prichard and others of the mineral company, in the same vicinity. The coal commission’s valuations of the unworked adjoining mineral lands are still greatly in excess of the county commissioners’ valuation of the Brown lands. We, therefore, think that in justice not only to the mineral company, but to the small property owners of the township as well, the county commissioners’ valuations must be restored.</p> <p>Returning to the tracts covered by the appeal No. 337, December Term, 1907, covering all the mineral company’s land in Coal township, we have concluded that the coal tax commission’s valuations ought to stand. Our reasons are these: With the exception of the Thomas Hamilton all the tracts have been largely mined and many of them practically exhausted. Most of them have been operated almost since the beginning of coal mining in Northumberland county, and as compared with lands to the west of the borough of Shamokin, have not been undervalued by the coal commission.</p> <p>The Thomas Hamilton, located immediately west of the borough of Shamokin and consisting of 295 acres of 'mineral only, was valued by the county commissioners far in excess per acre of any other tract of land, large or small, in the entire coal field with the exception of a small acreage in Shamokin borough. Their figure is $2,638 per acre. As reduced by the coal commission, it still stands at the sum of $1,128 per acre, being yet higher than any adjoining tract, or any other tract in the coal field as fixed by either the county commissioners or coal commission, except as above. For this reason we feel that the coal commission’s valuation should, in justice to the owners, remain. This tract should pay no more proportionately than adjoiners of equal or greater value. From twenty to twenty-five per cent of the coal has been worked out and there is no breaker or other valuable improvements on the property, the coal being hauled to and prepared at the Cameron breaker, on the adjoining John Brady tract.</p> <p>The John Carson, the mineral rights of which belong to Langdon & Company, adjoining the Hamilton on the south next to it, carries the highest per acre valuation. This is unappealed from and its valuation cannot be changed. Taking the Hamilton and Carson, and especially the Hamilton, as the standard with which to make comparisons, we necessarily reach the conclusion that the Philadelphia & Reading lands and the lands known as associate lands in Coal and Zerbe townships, between Shamokin and Treverton, in what is sometimes called the Treverton basin, ought, in several instances to be restored to the valuations fixed upon them by the county commissioners. We believe, with the coal commission, that the Hamilton, is at least, worth and would bring, at a bona fide sale, the estimate fixed upon it by them; therefore, in justice to the mineral company and to the individual taxpayers, many of the properties have been, we feel, estimated too low by the coal commission. The evidence shows that these properties are, most of them, undeveloped, but the coal in them is of the same thickness and of the same general character, and that one property is comparatively of like value with another. We have made full allowance for the coal mined. Also for proximity of the various properties to the outcrop.</p> <p>The valuation of the William Green, belonging to the Bellas estate, has been greatly reduced by the coal commission and still further reduced by the court, for the reason that the evidence shows that this property has been largely exhausted, the veins very deep, water very troublesome and it is impossible to lease it to the Reading company, which has heretofore worked it, and the chances are that lying as it does, and in its present condition, it would bring very little if put upon the market. Besides the last assessment, a large portion of the surface, that portion situated in the town of Ballaire, has been sold off and, of course, is separately taxed.</p> <p>We find there has been a mistake in the assessing of the McReynolds tract to the Bellas estate; the evidence shows that it is a double assessment. The John Hoglin and Luke Hoglin call for each other and leave no room for the McReynolds and there is no claim by the Bellas heirs to own this tract of land. We understand that it is not only included in the Reading holdings but is being actually worked by the Reading company as their own property and not under lease from the Bellas estate.</p> <p>As to the Deering, Kiehl, Watters and Black tracts, we have reduced them below the values fixed by the coal commission for the reason that they are so small, being only a few acres in extent each, and so isolated from transportation that they could not be mined by independent concerns and therefore would bring very little in the market if put to sale. The same is true of the Benjamin Gumming, Jr., tract.</p> <p>We conclude that the Helfenstein lands, consisting of 1,960 acres in East Cameron township, most of which are in the coal measures, have not been sufficiently valued, either by the county commissioners or the coal commission. The value put upon them by the county commissioners is $28,800. The actual value placed upon them by the coal commission is $53,800, and it having been agreed by all parties in the beginning, that the coal lands were to be assessed at sixty per cent of their actual value, in conformity to the rule throughout the balance of the county, the coal commission’s valuation for taxation would therefore be sixty per cent of this amount, which is $32,280.</p> <p>(It must be understood that when we are referring to the amounts fixed by the coal tax commission heretofore, the figures have represented sixty per cent of the full valuations fixed by them.)</p> <p>The assessor of East Cameron township placed a valuation of $248,348 on these lands. Why this great reduction by the county commissioners we do not understand. It is the only instance we have discovered in which the commissioners have cut down the assessors’ figures; hence, it is the only instance in which we have the power to increase the valuation beyond that fixed by the county commissioners. We believe this body of lands is of greater value than that fixed by either the county commissioners or the coal commission. There is very little testimony bearing upon values. The map introduced by the defendants shows that approximately five-sixths of the tract is within the coal measure. We do not know how many veins are contained upon it. It would appear however, that a portion at the eastern end of the tract contains numbers eight and nine, and must, of course, contain the lower veins. It was certainly within the power of the owner to give us some information as to the value of this tract. We are all at sea and do not know why the assessors and the coal tax commission have varied so greatly. However, we have concluded to place a valuation at between $100 and $150 per acre, actual, making the valuation for taxing purposes $150,000.</p> <p>So far we have not called attention to the appeals covering land in the boroughs of Shamokin and Mount Carmel.</p> <p>As to the assessments in the borough of Shamokin, the Mineral Railroad & Mining Company, as elsewhere, seems to have gotten the worst of it. The valuation of their mineral rights there, generally, exceed $3,000 per acre, which is far in excess of the county commissioners’ valuation of other coal lands anywhere in the county. The average valuation of the Philadelphia & Reading Coal & Iron Company lands in this borough is $500 per acre. These valuations are not appealed from, nor are the valuations of the East End Land & Coal Company or the valuations of the lands of J. Langdon & Company appealed from.. These too are very much lower than the mineral valuations. Inasmuch as we are powerless to change these valuations, or those of the Philadelphia & Reading Coal & Iron Company, in the borough, we feel that we are but giving the mineral company a square deal when we reduce their valuations to approximately $1,000 an acre, for their mineral rights.</p> <p>No appeals having been taken from the revisions made by the county commissioners in the several wards of the borough of Mount Carmel, either by the Philadelphia & Reading Coal & Iron Company or by the taxing authorities of that town, we are, of course, powerless to interfere with the valuations as fixed by the board of revision.</p> <p>This opinion is intended to cover in a general way all the appeals before us; specifically, the properties described in appeal No. 337, December Term, 1907, which we hereinafter separately value.</p> <p>We will take up each appeal separately and, in a short way, fix values, referring to this opinion as furnishing the reason for our action. Attached hereto will be found a schedule showing the valuations covering the entire scope of territory upon which appeals were taken, as well as the county commissioners’ valuation of the balance of the coal territory, thus giving the valuations as they now stand for taxation purposes for the years 1907, 1908 and 1909.</p> <p>And now, to wit: October 21, 1909, we hereby, for the purpose of taxation value the</p> <p>Thomas Hamilton tract at................ $326,910.00</p> <p>William Brady tract at................... 12,084.00</p> <p>John Brady, including Cameron colliery and improvements......................... 145,315.00</p> <p>Luke Fidler and Galen R. Hanley tract, including colliery and washery improvements but not Luke Fidler breaker............. 208,311.00</p> <p>William Lane tract, including Hickory Swamp breaker, etc.......................... 94,068.00</p> <p>Sarah Lane tract, including Hickory Ridge improvements in Coal township.......•.. 59,300.00</p> <p>William Lambert tract, including 163 acres north of mountain............. 104,593.00</p> <p>Samuel Clark tract in Coal township....... 2,405.00</p> <p>Daniel Reese tract at..................... 12,580.00</p> <p>John W. White tract, twelve acres at....... 3,216.00</p> <p>Samuel Wetherill tract at................. 1,240.00</p> <p>Luke Fidler Breaker tract at.............. 34,808.00</p> <p>Ludwig Gass & Wm. Baker at............. 1,760.00</p> <p>Mary Lane at........................... 71,305.00</p> <p>The William Brady, as we have valued it, consists of 268 acres, to wit: 181 acres valued by county commissioners at $31,200 and eighty-seven acres valued by them at $2,175.</p> <p>The John Brady includes the entire tract of 628 acres more or less, the Cameron colliery and barren lands.</p> <p>The William Lambert includes the 466 acres of mineral and the 163 acres north of the mountain, in all 629 acres.</p> <p>We are of the opinion that the work of the coal commission and the court will enable the various assessors and the county commissioners as a board of revision hereafter to reach more just and equitable conclusions.</p> <p>We wish to make a few suggestions for their guidance:</p> <p>1. The township lines should be established and wherever tracts of land are partly in one and partly in another township the acreage in each township should, be definitely established. Always assess to the proper township.</p> <p>2. There seems to be some doubt as to the location of the line between Coal and Mount Carmel townships, and East and West Cameron townships. If nobody knows where these lines are it is high time they were established. We insist that they should by all means be established before the triennial assessment, now on, is finished.</p> <p>3. In no case should a tract of land owned by the same party be divided for the purpose of assessment unless it lies partly in one township and partly in another.</p> <p>4. Where a tract of land is partly underlaid with coal and partly barren it should be assessed altogether. No tract can be partly seated and partly unseated. If any portion is improved the entire tract becomes seated.</p> <p>5. Breakers and improvements should be valued with the tracts of land upon which they are located, unless they are upon leased lands, in which case they should be valued separately. Where the lands have improvements owned by the same party, there is no more reason for giving them separate valuations than there would be to separately value a farm and the farm buildings, which everybody knows would not be right and is never done.</p> <p>COSTS.</p> <p>We direct that the record costs of each separate appeal be paid, one-half by the county commissioners and one-half by the appellants, except in the case of East Cameron Township Road Supervisor’s Appeal, where the county is directed to pay all the record costs.</p> <p>All other costs, including the fees and expenses of the coal tax commission, stenographer’s bills, witness bills, and all other costs of whatever nature, shall be paid as follows:</p> <p>One-half by the county of Northumberland.</p> <p>One-fourth by the Philadelphia & Reading Coal & Iron Company.</p> <p>One-sixth by the Mineral Railroad & Mining Company.</p> <p>One-twelfth by the Lehigh Valley Coal Company.</p> <p>Errors assigned were various rulings and exceptions, and the findings and decree of the court.</p>

Appeal, No. 15, Jan. T., 1910, by plaintiff, from decree of G. P. Northumberland Co., Dec. T., 1907, No. 338, fixing valuation of coal lands in case of Mineral Railroad & Mining Company v. Northumberland County Commissioners. Appeal from valuation of coal lands. For the facts see Mineral Railroad & Mining Co. v. Northumberland County Commissioners, supra, and the opinion of the Supreme Court. Error assigned was the decree of the court.

<p>Appeals, Nos. 22, 23, 24, 25, 32, 33, 34 and 35, Jan. T., 1910, by plaintiff, from decree of C. P. Northumberland Co., Dec. T., 1907, Nos. 317, 320, 321, 327, 319, 324, 326 and 327, assessing coal lands in case of Philadelphia & Reading Coal & Iron Company v. Northumberland County Commissioners.</p> <p>Appeal from tax assessment. Before Savidge, P. J., and Auten, J.</p> <p>The facts appear by the report of Mineral Railroad & Mining Co. v. Northumberland County Commissioners, supra, and the opinion of the Supreme Court, infra.</p> <p>Error assigned amongst others was the decree of the court.</p>

<p>Decedents’ estates — Claims—-Parent and child — Evidence—Auditor— Witness — Party dead.</p> <p>1. Where claims presented by a son against his deceased father’s estate are based only on loose declarations and admissions, and are rejected by the auditor for want of direct and positive proof, the Supreme Court will not reverse a decree of the orphans’ court dismissing exceptions to the auditor’s report.</p> <p>Evidence — Incompetency—Witness—Act of May 23, 1887, P. L. 158.</p> <p>2. A son who presents claims as a creditor against his father’s estate is an incompetent witness in support of such claims.</p>

<p>Appeal, No. 114, Oct. T., 1910, by defendant, from judgment of C. P. Indiana Co., Sept. T.', 1906, No. 157, on verdict for plaintiff in case of M. K. Leard et al. v. Pennsylvania Railroad Company.</p> <p>Appeal from award of jury of view. Before Telford, P. J.</p> <p>At the trial after William Nesbitt, a witness for the plaintiff, had testified as to his qualifications he was asked this question:</p> <p>“Q. From your knowledge of the land since the construction of the railroad, what would you say was the market value of the real estate immediately after the appropriation and construction of the railroad, as affected by it? ”</p> <p>Mr. Banks: We propose to inquire of the witness what he embraces in his estimate of depreciation as to the value of the land, for the purpose of ascertaining whether or not he takes the elements that are competent to be taken into consideration in his estimate of the value of the land since the construction of the railroad as affected by it.</p> <p>The Court: Motion for leave to cross-examine the witness at this point in his examination in chief is refused, an exception is noted to defendant and bill sealed. [1]</p> <p>Mr. Peelor: Question read. “A. One-half less. Q. State whether or not you mean for the whole farm? A. Yes, sir, one-half less for the whole farm.”</p> <p>The court charged in part as follows:</p> <p>[The plaintiffs also claim additional injury, which they claim will be a consequence following the construction of the bridge and the fill, that is that the river in high stages of water or in case of ice gorges at or above the bridge, the water will be thrown out of the river channel and will injure or destroy some thirty-seven acres of bottom land above the bridge. There has been some evidence of the character of floods that have occurred on this river prior to the construction of the fill and'bridge; also evidence of the character of the banks and depressed lands some 200 or 300 feet beyond the river bank. From what floods have occurred and from the character of the river bank and land adjoining at or near the north side of the bridge and fill, you are asked to assume that such floods as have occurred will occur again in the future, and when they do occur, in consequence of the bridge impeding and obstructing the natural flow of the water, the bank will be overflowed and channels cut through the low lands above the bridge, injuring the defendant’s property. If you will find that such a danger is impending, and that the bridge or fill or both will be the proximate cause of such injury, then it will be proper for you to consider it as it may affect the market value of the farm.] [6]</p> <p>Verdict and judgment for plaintiff for $7,750. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence, quoting the bill of exceptions, and (6) portion of charge as above, quoting it.</p>

<p>Appeal, No. 115, Oct. T., 1910, by defendant, from judgment of C. P. Indiana County, Sept. T., 1906, No. 160, on verdict for plaintiff in case of James H. White, Jr., v. The Pennsylvania Railroad Company.</p> <p>Appeal from the award of a jury of view. Before Tel-ford, P. J.</p> <p>The opinion, of the Supreme Court states the case.</p> <p>Verdict for plaintiff for 88,683, and judgment thereon.</p> <p>Errors assigned were (1-3) and (5-7) rulings on evidence; (4) refusal of court to strike out estimate of market value of plaintiff’s farm made by Robert Nesbitt; and (8-10) various instructions of the court.</p>

<p>Appeal, No. 178, Oct, T., 1910, by defendant, from judgment of C. P. Indiana Co., Sept. .Term, 1906, No. 349, on verdict for plaintiff in case of The Savings & Trust Company of Indiana, Pa., administrator of the Estate of Martha R. Sloan, deceased, v. Pennsylvania Railroad Company.</p> <p>Appeal from award of jury of view. Before Tel-ford, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $10,887. Defendant appealed.</p> <p>Errors assigned were (1, 15) in permitting witnesses, in giving their estimate of the market value of the tract as a whole to include as an element of such value the availability of tract for lot purposes; (2, 3, 6) in refusing to strike out witnesses’ estimate when based on loss of sewerage; (4, 5) in admitting testimony as to market value of timber on land taken; (8-14) various rulings on evidence and (15-19) various instructions of the court.</p>

<p>Deeds — Municipal corporations — Fee simple — Easement in gross— Base fee.</p> <p>1. A declaration in a grant to a corporation that land is conveyed for certain purposes does not necessarily import a limitation of the fee. It is to be construed rather as an assertion of the intended legality of the grant.</p> <p>2. A written agreement, under seal, which provides that a borough, its lessees and assigns, “may and shall occupy forever for purposes of wharf” certain land of parties named and that these parties may and shall occupy forever certain land belonging to the borough, passes a fee absolute in the land conveyed to the borough.</p> <p>3. No prescribed form is essential to the validity of a deed; and a deed informally drawn will convey a fee.</p>

<p>Equity — Partition—Jurisdiction—Title—Question of law.</p> <p>1. In an equitable proceeding in partition, in which the facts appear by bill and answer, and there is no adverse possession or adverse legal title shown and no issue of fact raised, the issue turning on a single question of law, equity has jurisdiction to determine the question and make partition, without compelling the plaintiff to establish his title in an action at law.</p> <p>2. To justify the suspension of proceedings in partition by tenants in common on the ground that defendant holds adversely, the answer must set up more than a mere denial of the tenancy.</p> <p>Decedents’ estates — Partition—Wills—Donee claiming adversely — • Election — Ignorance of material fact.</p> <p>3. Where a testator, possessed of an undivided half only of certain land, attempts to dispose of all the land as if he owned it in fee, devisees of a portion of the land under the will who are also entitled under the intestate laws to share in the undivided half of the land not owned by the testator cannot claim both as devisees of the testator and as heirs at law of the testator’s deceased co-owner and are put to their election between the two positions, but their acceptance of the devises under the will subsequent to the testator’s death will not bind them as by an election where such acceptance was made in total ignorance of a material fact a knowledge of which was necessary to enable them to make an intelligent choice. In such case, if the devisees later come into possession of the full facts and desire to take under the intestate laws their shares in the undivided half of the land not owned by the testator they are again put to an election between their two inconsistent claims and their action in filing a bill asking for partition in accordance with their interests under the intestate laws as heirs-at-law of the testator’s deceased co-owner will be held an election to reject the benefits conferred by the will; but, in so electing to take under the intestate laws they must compensate another devisee who by reason of their election has been disappointed in not receiving the benefits given him by the testator’s will.</p> <p>Decedents’ estates — Wills—Donee claiming adversely- — Election—Disappointed donee — Compensation.</p> <p>4. Where a donee under a will elects to claim property adversely to the will equity treats the gift to such recusant donee as a fund or source of fund for the compensation of donees disappointed by such election.</p>

<p>Appeal, No. 192, Oct. T., 1910, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1908, No. 34, on verdict for plaintiff in case of Charles Hobel v. Mahoning & Shenango Railway & Light Company.'</p> <p>Trespass for personal injuries. Before Porter, P. J.</p> <p>The accident which caused plaintiff’s injuries occurred at the intersection of Lyndal and Hamilton streets, in the city of New Castle. The plaintiff was driving west on the former street, and as he approached the house line of the latter, upon which defendant’s tracks were laid, he testified that he stopped, looked and listened at a place where he could see 150 feet in the direction from which the car came. Hearing nothing he drove on. Then, he says, “I drove a little further over the sidewalk and looked, and couldn’t see no car, then I drove further.” His testimony was that he kept looking at intervals, but ■not until his horses were entering on the track did he see the car, coming at a high rate of speed about 150 feet away,</p> <p>The body of the wagon in which plaintiff was driving was inclosed, having frame sides and end and a roof over all, with a door on each side and a window in front. Plaintiff was standing between these open doors in front of the seat when struck. There were trees lining the curb of Hamilton street. The accident occurred in the forenoon of July 16, 1908.</p> <p>Verdict and judgment for plaintiff in the sum of $2,926.12. Defendant appealed.</p> <p>Errors assigned among others were (1) in refusing binding instructions for defendant; (3) in admitting testimony of plaintiff as to his earnings when he worked in a mill seven years previously; (5) in overruling motion to strike out testimony of plaintiff, which motion was in part as follows:</p> <p>Counsel for defendant moves the court to strike out that part of the testimony of this witness in which he testifies to the amount of money he made out of the milk business, $7.00 per day, as there is involved in that, according to his cross-examination, his own labor and the labor of his wife and children, two of them about of age; the use of the farm and the care of the dairy of eighteen cows and the delivery of the milk by horses and wagon, which would not be a profit of the labor or the effort of the plaintiff, and would not be the amount of money that he would take in; it would not even be the profits of the milk business, consisting of all these different things, and the labor of these different persons, and it is therefore not evidence of the measure of the depreciation of the power to earn but at most it relates to the money received and the profits made out of a business involving the labor of many persons and the use of the farm land and dairy of eighteen cows, horses, wagons and also other things.</p> <p>Also to strike out the testimony of this witness as to the receipt of $300 or $400 a year from the farm, that being his testimony that the farm brought in from $300 to $400 per annum, when upon cross-examination it appears that there were himself, two boys of about full age, and three other children and his wife all helping to manage and conduct and operate the farm and that the $300 or $400 would not represent his earnings, but would represent what had been received from the crops raised on the farm by the labor of all.</p>

<p>Mechanic’s claim, — Building contract — Arbitration by architect — Retention of certificate of approval — Good faith — Instructions of court.</p> <p>1. Where a subcontractor has entered into a contract with a construction company, the main contractor, to construct certain tubs for a brewery in course of erection, by the terms of which contract the construction company is expressly designated as “owner,” and it is provided that the work shall be done “under the direction and to the satisfaction of the construction company, architect, acting for the purposes of this contract as the agent of the owner,” with the further provision that “all payments shall be made upon written certificate of the architect that the payment has become due.” and the real owner seeks to defend against a sei. fa. sur mechanic’s lien for a balance due for work done on the ground that the work was deficient in several particulars and that the plaintiff has failed to produce a certificate from the architect that any balance is due, an instruction to the jury making the good faith of the construction company in withholding their approval of the work the test of the sufficiency of its defense is fair and proper.</p> <p>2. Such a case in its facts is to be treated rather as one in which work or material is to be satisfactory to the party acquiring it, than as one in which it must be satisfactory to a third party designated as arbiter.</p> <p>3. The physical production of the architect’s certificate in such a case is not an absolute prerequisite to the right of recovery.</p> <p>Evidence — Verdict—Inference of feigned dissatisfaction.</p> <p>4. A verdict for plaintiff on sci. fa. sur mechanic’s lien is sustained by evidence that the work was properly performed, that no specific reason was offered for the failure of the principal contractor to give a certificate of proper performance upon request, that after the completion of the work the owners expressed satisfaction with it and acknowledged their liability on several occasions, finding no fault at that time, nor in fact till after the filing of the lien; and that certain of the appliances furnished were still in use after three years and giving no material trouble; which evidence if believed is sufficient to justify the conclusion that the dissatisfaction was feigned and that the certificate was arbitrarily withheld.</p> <p>Appeals — Res adjudícala.</p> <p>5. Where on a previous appeal the Superior Court has adjudicated the same question on practically the same facts, and it is clear that it understood the existence and use of a letter upon a reference to which by a witness under cross-examination the defendant rests its whole contention that the judgment of i.he appellate court should not be taken as a controlling guide, it is not error to treat the matter as finally disposed of, particularly so when the record discloses that the claim is probably an afterthought.</p>

<p>Appeal, No. 51, Oct. T., 1910, by plaintiff, from order of C. P. Butler Co., June T., 1909, No. 38, refusing to appoint viewers in case of William J. Stoner v. The Pittsburg, Bessemer & Lake Erie Railroad.</p> <p>Petition for the appointment of viewers. Before Gal-breath, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order of court discharging rule to show cause why viewers should not be appointed.</p>

<p>Railroads — Eminent Domain —• Consequential Damages — Streets— Damages for Operation — Smoke and Dust — Evidence.</p> <p>1. In aetion of trespass to recover consequential damages caused by the construction of a railroad in a street, where a witness admits upon cross-examination that in fixing his estimate of the damages he had taken into consideration “the danger from the operation of the road” and “the smoke and the dust . . . ., and the bringing in a cheaper class of houses” and this testimony is not afterwards changed materially or departed from and it is clear that the witness did take these forbidden elements into account, the refusal of the court to exclude his evidence on motion, constitutes reversible error, especially when the charge contains no instruction to disregard it.</p> <p>Appeals — Paper-book—Statement of question involved — Assignments of error.</p> <p>2. The statement of the question or questions involved must include any question unrelated to the main matter for decision but considered sufficiently important to be assigned for error, or the assignment will be ignored.</p>

<p>Appeal, No. 24, Oct. T., 1910, by plaintiff, from judgment of C. P. Beaver Co., Sept. T., 1908, No. 317, for defendant non obstante veredicto in case of Edward 'Winfield v. Beaver Trust Company, administrator of James Nelson, deceased.</p> <p>Assumpsit for wages, etc., against an administrator. Before Holt, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Appeal, No. 53, Oct. T., 1910, by equitable plaintiff, from order of C. P. Green Co., Nov. T., 1903, No. 38, making absolute rule to open judgment in case of A. E. Fox, for the use of John A. Howard, Receiver of the First Citizens’ Bank of Cameron, v. Lizzie B. Loller, Administratrix of W. J. Bryan, deceased.</p> <p>Rule to open a judgment entered by confession on a note containing a warrant of attorney. Before Holt, P. J., specially presiding.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was in making the order opening judgment, which order was as follows:</p> <p>“Now, December 30, 1909, this case came on to be heard on petition, answer and evidence taken upon rule, and after argument of counsel, upon due consideration, it is ordered, adjudged and decreed that the judgment in this case be and the same is hereby opened and the administratrix of the estate of W. J. Bryan, the defendant, is let into a defense. It is further ordered that the note as filed shall stand in lieu of a declaration, and that the petition to open judgment shall stand in lieu of an affidavit of defense, and that the case shall upon the entry of a plea by the defendant be at issue without further pleadings on the part of either party, and that the issues so made shall be tried by a jury of the country.”</p>

<p>Appeals, Nos. 21 and 41, Oct. T., 1910, by Martha A. Thompson, widow, and Eliza Martindell, sister oí the testator, from decree of O. C. Washington Co., May T., 1908, No. 81, dismissing exceptions to adjudication in Estate of Jackson L. Thompson, deceased.</p> <p>Exceptions to adjudication. Before Taylor, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Errors assigned on behalf of the widow, appellant, were among others, in dismissing exceptions to auditor’s supplemental report, as follows:</p> <p>1. The auditor erred in deducting the executors’ commissions and other expenses from the total estate before allowing the widow’s legacy.</p> <p>2. The auditor erred in distributing the residue to collateral heirs in not allowing widow one-half the residue.</p> <p>6. The auditor erred in deducting the widow’s $300, exemption before allowing her legacy, thus taking one-half of $300, from her legacy.</p> <p>Error assigned on behalf of the sister, Eliza Martin-dell, appellant, among others was in overruling exception to auditor’s supplementary report, as follows:</p> <p>11. The auditor erred in awarding to Mrs. Eliza Martin-dell the sum of $2,053.91, which was less than the amount to which she was by law entitled.</p>

<p>Negligence — Master and servant — Mines and mining — Defects in works or plants — Act of June 10, 1907, P. L. 523.</p> <p>1. No employer is exempt from the operation of the Act of June 10, 1907, P. L. 523, so far as it relates to delects in the works or plant under his direct control, and of which defects he can have knowledge by the exercise of ordinary care.</p> <p>2. Mule holes in mines, made for the purpose of preventing mules, while not working, from straying and being a source of danger to employees on mine cars, are part of the works of the mine owners, and failure to provide bars, gat es or hitching posts to keep the mules in is a failure of duty by the mine owner, and a “defect in the works” under the act of 1907 which, if found to have caused or contributed to the injury of an employee, renders the owner liable regardless of proof of negligence of a coemployee.</p>

Appeal, No. 64, Oct. T., 1910, by defendant, from judgment of C. P. Washington Co., May T., 1909, No. 98, on verdict for plaintiff in case of Robert Carothers v. Pittsburg Railways Co. Trespass to recover damages for personal injuries. Before Taylor, J. The injuries complained of were alleged to have been caused by the negligent starting of defendant’s car while the plaintiff was attempting to board it.

<p>Negligence — Master and servant — Defective machinery — Notice to master — Evidence—Fellow servants.</p> <p>1. In an action by an employee against liis employer to recover damages for personal injuries sustained while working at a machine, where the charge is that the machine became unsafe to operate by permitting shears attached to it to become so dull as to be unfit for use, the burden is upon the plaintiff to show that defendant had notice of the defective condition, or that the defendant should have known if the machine had been properly inspected, and this burden is met by proving notice to the superior in charge of the employees.</p> <p>2. In such a case where there is evidence that both the superior in charge of the employees and the machinist whose duty it was to repair the shears had notice of their condition, and the evidence is conflicting as to whether the plaintiff was directed to work on the particular machine at which he .was injured or did so of his own volition, the question of the defendant’s negligence and the plaintiff’s contributory negligence is for the jury.</p>

<p>Appeal, No. 113, Oct. T., 1910, by defendant, from judgment of C. P. Washington Co., Peb. T., 1910, No. 69, on verdict for plaintiff in case of County of Beaver v. Beaver Valley Traction Company.</p> <p>Assumpsit to recover compensation for the use of county bridges. Before McIlvaine, P. J.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were various instructions of the court.</p>

<p>Negligence — Street railways — Evidence—Inadequacy of charge — Measure of damages — Husband and wife.</p> <p>1. In an action for damages for personal injuries, sustained as the result of the alleged negligence of the defendant in suddenly starting a car from which plaintiff was attempting to alight, it is not reversible error for the court to permit the plaintiff, in answer to a question about the conditions surrounding the approach to her home, to testify to her experiences closely following the accident, although this does not bear upon the question of the company’s negligence.</p> <p>2. Counsel cannot be heard to complain of the inadequacy of an otherwise correct charge, where the court gave them opportunity at the time to call attention to any omissions, and one of the defendant’s counsel stated to the court that there was no omission.</p> <p>3. It is not for the court to indicate the amount that should be awarded to a husband for injuries to his wife. This is for the jury alone after taking into consideration all of the facts of the case. In determining the amount the jury may consider the loss of the wife’s services, assistance and companionship in managing his household, and any expenditures he had been put to as the result of her injuries.</p>

Appeal, No. 166, Oct. T., 1910, by defendant, from judgment of C. P. Washington Co., Feb. T., 1910, No. 136, on verdict for plaintiffs in case of J. J. Lanning and Mary Martha Lanning, his wife, v. Pittsburg Railways Company. Trespass for damages for personal injuries. Before McIlvaine, P. J. The opinion of the Supreme Court states the case. Verdict and judgment for J. J. Lanning for $1,000, and for.Mary M. Lanning for $2,266.66.

<p>Appeal, No. 4, May T., 1911, by James A. Wakefield, from decree of C. P. Dauphin Co., Jan. T., 1911, No. 173, sustaining objections to nominar tion papers of James A. Wakefield as a candidate of the Keystone Party to Congress in the Thirtieth Congressional District of Pennsylvania.</p> <p>Objections to nomination papers.</p> <p>The opinion of'the Supreme Court states the case.</p> <p>Error assigned was decree sustaining objections and declaring the nomination papers invalid.</p>

Appeal, No. 5, May T., 1911, by James A. Wakefield, from decree of C. P. Dauphin Co., Jan. T., 1911, No. 204, overruling exceptions to nomination papers of II. J. Black as a candidate for Congress in the Thirtieth Congressional District of Pennsylvania. Exceptions to nomination papers. The opinion of the Supreme Court states the case. Error assigned was decree overruling exceptions.

Appeal, No. 146, Oct. T., 1910, by defendant, from judgment of O. & T., Allegheny Co., March T., 1910, No. 14, on verdict of guilty in case of Commonwealth of Pennsylvania v. Steve Rusic. Indictment for murder. Before Beown, P. J., presiding, McFablane and Fobd, JJ. The facts appear in the opinion of the Supreme Court. Verdict of guilty of murder of the first degree upon which judgment of sentence was passed.

<p>Criminal law — Constitutional law — Evidence—Compulsory self incrimination — Constitution of Pennsylvania, art. Ill, sec. 32.</p> <p>1. Exemption from compulsory self incrimination is not a natural right, nor is it a right secured by the federal constitution which a state constitution can neither take away nor abridge.</p> <p>2. The words of sec. 32 of art. Ill of the constitution: “Such testimony shall not afterwards be used against him in any judicial proceeding,” do not confer on the witness an immunity from prosecution for an offense relative to which he has been compelled to testify.</p>

Appeal, No. 121, Oct. T., 1910, by defendants, from decree of C. P. Washington Co., in Equity, No. 1874, on bill in equity in case of Henry Elliott v. Monongahela City, the West Penn Electric Company et al. Bill in equity to have a municipal ordinance declared null and void, and to enjoin the performance of a contract entered into in pursuance thereof. Before Taylor, J. The facts appear in the opinion of the Supreme Court.

Appeal, No. 41, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third T., 1907, No. 133, on verdict for plaintiff in case of William L. Woods v. John B. Heron, Jr. Assumpsit to recover commissions for sale of real estate. Before Carnahan, J. The facts appear in the opinion of the Supreme Court. Errors assigned were various rulings and instructions of the court.

Appeal, No. 15, Oct. T., 1910, by John Alldred and Emma A. Trautman, Executors, etc., from decree of O. C. Allegheny Co., Sept. T., 1906, No. 117, awarding distribution in Estate of William H. Alldred. Exceptions to adjudication. Before Hawkins, P. J. The opinion of the Supreme Court states the case. Error assigned was decree awarding distribution to estate of E. E. Lusk.

<p>Promissory notes — Indorsers—Indemnification of indorsers — Release of sureties.</p> <p>1. Where a corporation makes'a demand note to its own order, and the directors of the company indorse the note, which is delivered as collateral security for the payment of another note of the company, and subsequently the directors accept the benefit of a deed of trust of all the property of the corporation executed to secure them against loss as indorsers, and it appears that the property covered by the deed of trust was amply sufficient to secure them, they become principals and cannot be relieved of their liability as indorsers by claiming any privilege incident to the contract of indorsement.</p> <p>2. In such a case the consideration paid for the property covered by the deed of trust at forced sale made with a view towards reorganization, cannot be regarded as conclusive of its value, if it appears that it was purchased in the interest of the directors and stockholders, and at the reorganization made the basis of a largely increased capitalization.</p> <p>' ’3. The indorsers on a demand note made by a corporation to its own order and delivered as collateral security to an indorser upon another note of the company cannot be relieved from liability because of' renewals of the second note, where there were no renewals or extensions of the note which they indorsed.</p>

<p>Appeal, No. 25, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Second Term, 1909, No. 820, on verdict for defendant in case of Amanda Snyder v. Alice L. Erwin.</p> <p>Issue devisavit vel non. Before Swearingen, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>■ Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in submitting the case to the jury.</p>

<p>Appeal, No. 32, Oct. T., 1910, by defendant, from judgment of C. P. No. 1, Allegheny Co., March T., 1905, No. 398, on verdict for plaintiff in case of Thomas Burns v. Pennsylvania Railroad Company.</p> <p>Appeal from award of jury of view. Before MacfarLANE, J.</p> <p>At the trial, when plaintiff, Thomas Burns, was on the stand, the following question was asked him:</p> <p>“ Q. It was testified by Mr. Walter that he didn’t know whether he made you an offer about the time of this condemnation of $10,000 for the property. I will ask you whether or not he made you such an offer.”</p> <p>Mr. Crawford: Objected to generally as incompetent and irrelevant; and further for the reason that in view of the testimony adduced on cross-examination from Mr. Walter it would appear that he acted as broker or agent for the Pennsylvania Railroad Company in acquiring property in this immediate locality, and there is a presumption that if he negotiated with Mr. Burns or his attorney that it was with a view to a compromise of litigation.</p> <p>The Court: What date was it?</p> <p>Mr. Stoner: “Q. It was right at the time of the condemnation. I am unable to say whether before or after the condemnation.”</p> <p>Objection overruled and bill sealed for defendant.</p> <p>Question read to witness.</p> <p>Mr. Stoner: “Q. Answer yes or no. A. Yes, sir.” [3]</p> <p>When Joseph Stadtfeld was on the stand he was asked:</p> <p>“Q. Mr. Walter, a witness on the stand, testified that he did not make to counsel for Mr. Burns an offer of $11,000 for the property lots Nos. 604, 605, 610 and 611 in the Borough of Aspinwall. I will ask you whether he did or did not make you as counsel for Mr. Burns, such an offer.”</p> <p>Objected to that no time is specified, and if it was after the filing of the bond it would not be competent.</p> <p>Mr. Stoner: It was after the filing of the bond.</p> <p>Mr. Crawford: If it was after the filing of the bond it was for the purpose of making a settlement of litigation, and would be incompetent for that reason.</p> <p>Objection overruled and bill sealed for defendant. [4]</p> <p>“A. I don’t recall the numbers of the lots, but it was the property they appropriated in the condemnation proceedings. I can refresh my recollection as to the numbers of these lots by a paper which was sent up to me by Mr. Walter on November 16, 1903. They were lots 604, 605, 610, and 611. On November 16, 1903, Mr. Walter had made a proposition to pay Mr. Burns $11,000 and sent up an agreement to be executed by Mr. Burns. That agreement they sent up Mr. Burns declined — ”</p> <p>The Court: Never mind that.</p> <p>The following offer was made by plaintiff:</p> <p>Mr. Stoner: To rebut the testimony of Mr. Walter that he never made an offer to Mr. Burns or his counsel of the sum of $11,000 for the property in question, I offer in evidence an agreement unsigned, dated November 16, 1903, between Thomas Burns and Geo. L. Walter, being the agreement stated by Mr. Stadtfeld, the last witness, to be the one sent to him by Mr. Walter for execution.</p> <p>Mr. Crawford: Objected to, first, because the exhibit is merely an unexecuted paper. Second, because if any such agreement was in contemplation it was in settlement and compromise of litigation. Third, as being generally incompetent and irrelevant.</p> <p>Objection overruled and bill sealed for defendant. [5] The defendant made the following offer:</p> <p>Mr. Crawford: The deed from the Aspinwall Land Company to the Pennsylvania Railroad Company having been offered in evidence by plaintiff’s counsel, the defendant’s counsel offers to-prove how the consideration was made up and what was paid for each of the lots described in the said deed and for the river frontage described in said deed.</p> <p>Objected to as incompetent and irrelevant because they cannot undertake to correct the deed or to explain it; and further, because it was offered as part of the cross-examination of one of the defendant’s witnesses and for no other purpose.</p> <p>Mr. Stoner: I will correct that. It was offered in view of the question asked Mr. Wright as to the sale of lots 612 and 613 for $2,000 and he said that he knew differently.</p> <p>Objection sustained and bill sealed for defendant. [6] Defendant presented these points:</p> <p>1. That the jury will disregard the testimony of Joseph Stadtfeld as to the offer of purchase testified to have been made to him as attorney for plaintiff, after the beginning of this litigation between plaintiff and defendant, by George Walter, representing the defendant company. Answer: Refused. [1]</p> <p>2. That the testimony in the case as to the offer of compromise or settlement of this litigation by the purchase of the land in question from the plaintiff is stricken out and is not for your consideration. Answer: Refused. [2]</p> <p>Verdict and judgment for plaintiff for $15,280. Defendant appealed.</p> <p>Errors assigned were (1, 2) above instructions, quoting them; (3-6) rulings on evidence, quoting the bill of exceptions.</p>