Volume 231 — Pennsylvania State Reports

Appeal, No. 335, Jan. T., 1910, by defendant, from order of C. P. No. 3, Phila. Co., June Term, 1906, No. 2,560, dismissing exceptions to referee’s report in case of Frank B. Thompson and William H. White, copartners trading as Thompson & White, v. Charles B. Prettymán. Exceptions to report of Horace M. Rumsey, Esq., referee. The opinion of the Supreme Court states the case. Errors assigned were in dismissing exceptions to report of referee.

Appeal, No. 339, Jan. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1906, No. 983, on verdict for plaintiffs in case of Charles Vautier et al., late trading as Vautier Brothers, v. Atlantic Refining Company. Trespass to recover damages for injuries to a crop of vegetables.

<p>Insurance — Life insurance — Insurable interest — Purchase of policy.</p> <p>1. The mere purchase of a life insurance policy on the life of another, does not in itself create an insurable interest in the purchaser in the life of the insured.</p> <p>2. Where a person who is not a creditor, and who has not otherwise any insurable interest in the life of another person, purchases a life insurance policy on the life of such other person, he will be entitled, after the death of the insured, to retain from the proceeds of the policy only such premiums, payments and expenditures as were made or incurred by him on account of the policy. The purchase of the policy in such a case is a wagering contract, unlawful and void.</p>

<p>Negligence — Municipality—Sidewalk—Unguarded area way.</p> <p>In an action against a city to recover damages for personal injuries, it appeared that the plaintiff fell into an open, unguarded area way in which there were steps leading to a door that opened into the basement of a dwelling house. This door was under the front steps that were six feet high and extended six feet three inches into the pavement. The area way extended from the house line three feet into the pavement and was three feet four inches in length. The pavement was sixteen feet in width, and the clear space between the foot of the steps and the curb was nine feet, nine inches. The street was in a thickly populated part of the city and was much frequented. The accident happened at night. The plaintiff, who had no knowledge of the open area way, and who had occasion to wait on the street, went to the side of the front steps of the house to secure protection from the wind and after standing there a short time, stepped further back and fell. Held, that the case was for the jury and that a verdict and judgment for plaintiff should be sustained.</p>

<p>Mines and mining — Coal lands — Easements—Right of transportation across surface — Practice, C. P. — Form of action — Trespass, Q. C. F.— Act of May 25, 1887, P. L. 271 — Bankruptcy—Provable claims.</p> <p>1. A party who purchases the surface of a tract of land subject to the right of the owner of the underlying coal to transport the coal across the surface of the land may reqover damages in an action of trespass against the owner of the coal for the transportation across the land of coal taken from a mine upon an adjoining tract of land.</p> <p>2. In such case the fact that the declaration was in trespass quare clausum fregit will not prevent a recovery, inasmuch as the distinction between trespass quare clausum fregit, in which actual or constructive possession in the plaintiff was necessary, and trespass on the case in which it was not necessary is not of importance, as regards form of procedure, since the Act of May 25,1887, sec. 3, P. L. 271.</p> <p>Bankruptcy — Provable claim — Unliquidated claims in tort — Discharge —United States bankruptcy act of 1891, sec. 68b — United States act of February 5,1908.</p> <p>3. A claim for unliquidated damages resulting from injury to the property of another, not reduced to judgment and unaccompanied and unconnected with any contractual or quasi contractual liability, is not provable in bankruptcy under clause b of sec.- 63 of the United States bankruptcy law of July 1,1898.</p> <p>4. Section 63 of the United States bankruptcy law of 1898 was not enlarged by the act of congress of February 5, 1903 (32 U. S. Stat. at Large, 797), amending sec. 17, which relates to debts not affected by a discharge. ■</p>

<p>Appeal, No. 247, Jan. T., 1910, by plaintiff, from order of C. P. No. 1, Phila. Co., June Term, 1910, No. 176, discharging rule for judgment for want of a sufficient affidavit of defense in case of Giovanni Zenatello v. Oscar Hammerstein.</p> <p>Rule for judgment for want of a sufficient affidavit of defense in an action of assumpsit. Before Magill, J.</p> <p>The averments of the statement and affidavit of defense are sufficiently set forth in the opinion of the Supreme Court.</p> <p>Error assigned was order discharging rule for judgment.</p>

Appeal, No. 157, Jan. T., 1910, by Adelia R. Lewis and John T. Lewis, from decree of O. C. Phila. Co., Oct. T., 1898, No. 494, dismissing petition for the termination of a trust in Estate of William H. Lewis, deceased. Petition praying that a trust be declared terminated. Before Lamokelle, J. The decedent, William H. Lewis, died September 26, 1896, having previously made and executed his last will dated August 6, 1889.

<p>Negligence — Street railways — Passengers—Sudden stop — Presumption of .negligence — Nonsuit.</p> <p>1. In an action by a passenger against a street railway company to recover damages for personal injuries a nonsuit is improperly entered where plaintiff testifies that while he was seated in the car it came to a sudden and violent stop throwing him forward against the seat in front of him.</p> <p>2. Such an unusual manner of stopping a car justifies an inference of negligence in the management of the car, and calls for an explanation by the defendant company. It is therefore not a case for a nonsuit.</p>

<p>Negligence — Damages—Compensatory or punitive damages — Wanton assault.</p> <p>In an action for personal injuries inflicted upon a boy nine years of age it is not error for the court to refuse to instruct the jury that plaintiff’s recovery should be restricted to compensatory damages where it appears from defendant’s evidence that his son and the plaintiff, who were near the same age, had quarreled on the street, and that fifteen minutes after being informed of the occurrence, while seated in front of his house reading a newspaper, he perceived the plaintiff across the street, and went over where he was; and a witness to the occurrence called by plaintiff testified that the defendant seized the boy by the neck and threw him violently against an iron slot machine, and at the same time kicked him.</p>

Appeal, No. 334, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1909, No. 893, for defendants non obstante veredicto in case of Frank P. Dougherty v. Malcolm Briggs, Jr., and The Tradesmen’s Trust Company. Before Fell, C. J., Assumpsit for money had and received.

<p>Appeal, No. 338, Jan. T., 1910, by defendant, from decree of C. P., No. 3, Phila. Co., March T., 1907, No. 5,654, for an account in case of David Genese v. H. K. Mulford Company.</p> <p>Bill for an accounting under a written contract for use of a patent. Hearing before Theodore F. Jenkins, referee, on bill, answer and proofs.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>McMichael, P. J., dismissed defendant’s exceptions to the referee’s findings and decreed that the defendant pay to the plaintiff the sum of $2,500.80. Defendant appealed.</p> <p>Errors assigned were in dismissing defendant’s exceptions to the referee’s findings of fact and conclusions of law.</p>

Appeal, No. 194, Jan. T., 1910, by defendants, from judgment of C. P. No. 2, Phila. Co., March T., 1905, No. 3,365, on verdict for plaintiffs in case of William C. Butterfield and Lenore C. Butterfield, his wife, v. Nathan Snellenburg et al., copartners, trading as N. Snellenburg & Company. Trespass for personal injuries. Before Wiltbank, J. The facts appear in the opinion of the Supreme Court.

<p>Negligence — Street railways — Passengers—Car in motion — Case for jury.</p> <p>In an action against a street railway company to recover damages for personal injuries the case is for the jury where the evidence is conflicting as to whether the plaintiff was thrown by the starting of a car, as she was in the act of alighting, or whether she stepped from the car when it was in motion.</p>

Appeal, No. 288, Jan. T., 1910, by Harry F. Ertel, from decree of C. P. No. 4, Phila. Co., Dec. T., 1909, No. 4,939, on bill in equity in case of Elizabeth Van Hoesen Nicholson, executrix, etc., et al. v. Harry F. Ertel, Felix Isman and William S. Vare, recorder of deeds for Philadelphia county. Bill in equity for the cancellation and surrender of an agreement of sale of real estate.

<p>Corporations — Charters of first class — Beneficial and protective organizations — Amendments to charter — Change of name — Subordinate lodges— Act of May 8, 1899, P. L. 160.</p> <p>1. A petition for an amendment of the charter of a beneficial and protective organization by having its name changed must be refused where it appears that prior to its incorporation the society had existed as an unincorporated body for a period of several years subject to the laws, rules and regulations of a certain fraternal organization, that after its incorporation some controversy arose between it and the supreme lodge of the order, that some of its members and officers were endeavoring to transfer whatever corporate rights and franchises it possessed as a subordinate lodge to another fraternal organization by merely making application to the court for a change of name and that the petition presented in court asking for the amendment was signed by the officers and was under the seal of a subordinate lodge of such other fraternal organization.</p> <p>2. When application is made to alter or amend the charter of a corporation it must appear that it is the act of the corporation in its corporate capacity, and not the act of individual members thereof, or of another organization.</p> <p>3. Since the passage of the Act of May 2,1899, P. L. 160, the change of the name of a corporation of the first class is to be treated as an amendment to the charter and the proceedings to accomplish this purpose are the same as if application were made to improve, amend or alter the charter in any other respect, and it is therefore not necessary to serve notice upon the auditor general before filing the petition in court asking that the name of the corporation be changed.</p>

Appeal, No. 228, Jan. T., 1911, by plaintiff, from judgment of C. P. Lehigh Co., June Term, 1903, No. 16, for defendant on case tried by the court without a jury in suit of Bullock Electric Manufacturing Co. v. Lehigh Valley Traction Company and R. E. Wright, et al., receivers, and R. E. Wright, a bondholder, defendants, intervening. Replevin for four electric generators. Before Heydt, P. J., specially presiding, without a jury.

<p>Appeal, No. 4, Jan. T., 1911, by plaintiff, from judgment of C. P. Lehigh Co., Jan. T., 1910, No. 59, sustaining defendants’ demurrer to statement in case of city of Allentown to use of Warren Brothers Company v. Henry Roth et al.</p> <p>Assumpsit to recover an assessment for street paving. Before Trexler, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court sustained defendants’ demurrer to the statement of claim and entered judgment for defendants.</p> <p>Error assigned was the order sustaining demurrer.</p>

<p>Appeal, No. 145, Jan. T., 1910, by plaintiffs, from decree of C. P. Chester Co., in equity, No. 524, on bill in equity in case of Michael Warner et al. v. Coatesville Borough, Jesse Shallcross, Burgess, and John E. Way et al., members of town council of said borough.</p> <p>Bill in equity to declare certain ordinances and contracts invalid and to restrain the laying out and vacation of certain streets, thereby.</p> <p>Hemphill, P. J., filed an opinion in part as follows:</p> <p>This bill seeks to have the defendant borough enjoined from enforcing or carrying out the provisions of two ordinances, finally passed by its council on November 16,1909.</p> <p>findings of facts</p> <p>The ordinances were enacted, apparently, for the improvement of the borough and the protection of the lives and property of the traveling public — both commendable and desirable objects.</p> <p>One provides for the vacation, alteration and extension of portions of certain streets, to avoid grade crossings over the Pennsylvania railroad and to connect with subways to be constructed by said railroad company.</p> <p>The other authorizes the execution of a contract by the borough with the Pennsylvania Railroad Company, for the purpose of carrying out the first named ordinance, upon condition that said company shall construct the subways, build and macadamize certain streets and construct sidewalks, drains, etc., as therein specified.</p> <p>Both ordinances were passed by council, September 27, 1909, were vetoed, October 4, 1909, by the chief burgess and finally passed over his veto, November . 16, 1909.</p> <p>On October 4, 1909, William H. Hamilton, who had been elected to council, was its president, and had voted for the ordinances upon their original passage, was, by decree of this court, ousted from his office as councilman and at a meeting of council that evening, resigned, but was, with the advice of the borough solicitor, immediately re-elected by the council to fill the vacancy thus caused, he having in the meantime sold his stock in a corporation, the ownership of which, the court held, disqualified him for membership in the council. At this meeting consideration of the veto message was postponed by adjournment to October 25, 1909, and then again, by adjournment, to November 1, 1909, Mr. Hamilton voting in favor of both adjournments.</p> <p>New quo warranto proceedings against Mr. Hamilton had been instituted in the meantime, and on October 26, 1909, by decree of this court, he was again ousted from his office of councilman; and his place was subsequently filled by the election of Joseph Gallup.</p> <p>On November 1, 1909, when council met pursuant to adjournment, it again adjourned, by a majority of one (without counting Hamilton’s vote), to November 15, 1909, when councilman Kirk, who all this time had been absent by reason of illness, was present, and the ordinances were considered and passed over the veto, by a vote of five to two.</p> <p>The first ordinance provides inter alia for the vacation of Second avenue in said borough from the north side of Railroad street (a street on the south side of and parallel with the present tracks of the Pennsylvania railroad), to a point on the north side of said tracks, which originally constituted part of a public highway beginning about eight hundred feet north of the borough line, and extending south, to what is known as Main street in said borough; and was ordained by the court of quarter sessions of this county some time before the incorporation of the borough of Coatesville in 1867.</p> <p>CONCLUSIONS OP LAW</p> <p>Numerous objections have been raised and urged against the validity of these ordinances, which wre shall consider and dispose of in order.</p> <p>One, however, viz: that they are void because they require and authorize the expenditure of borough funds outside its limits — in an adjoining township — has been removed, since the filing of the bill, by the Pennsylvania Railroad Company filing a stipulation or agreement, whereby, it agrees to pay all expenses and damages that may be occasioned or recovered outside the borough and releasing it from all responsibility or liability for the same.</p> <p>Another is based upon the conduct and votes given by William H. Hamilton, because as plaintiffs allege ineligible to the office of councilman, Mr. Hamilton had been duly elected to council and was serving as president of that body on September 27, 1909, when the ordinances were originally introduced and passed — and voted in the affirmative. He was, therefore, at the time, an officer de facto, if not de jure.</p> <p>On October 4, 1909, he was ousted by decree of this court, because a stockholder in a corporation furnishing supplies to the borough, which under the law disqualified him from serving as councilman. He forthwith sold his stock, resigned his office and was, the evening of the same ■day, re-elected by council to fill the vacancy thus made; it having authority to fill vacancies in its body.</p> <p>We are satisfied, that in thus acting, neither Mr. Hamilton or the council, intended any disrespect towards the court or disregard of its decree, but believed, after consultation with the borough solicitor, that Mr. Hamilton having sold his stock was eligible for re-election. And the relators also, seem to have considered their actions bona fide, for instead of asking for an attachment for contempt they instituted new quo warranto proceedings to test his title under his election by council.</p> <p>These proceedings terminated October 26, 1909, — -in a second decree of ouster, the court holding that the first was for the term for which he had been elected; and that the legal presumption that disqualified him then, still continued, viz: that a stockholder in a corporation furnishing supplies to a borough, would by reason of that interest, be controlled or influenced in the discharge of his duties as councilman.</p> <p>At the same meeting (October 4,1909), the chief burgess returned the ordinances with his veto, which was spread upon the minutes; and a motion made to sustain the veto, which was amended by a motion to postpone consideration to an adjourned meeting on October 25, 1909, — that carried.</p> <p>Further adjournments were made to November 1, 1909, and November 15, 1909, when after Joseph Gallup had been elected to fill the vacancy caused by Mr. Hamilton’s second ouster, both ordinances were passed over the veto by a vote of five to two.</p> <p>For all these adjournments Mr. Hamilton voted in the affirmative, and in all, excepting the last (November 1, 1909) his vote was necessary to constitute a majority.</p> <p>Elected by council, duly empowered to fill vacancies in its body, Mr. Hamilton had a colorable title and becapae and continued, a councilman de facto until his second ouster. And as the votes and acts of officers de facto are as forceful and binding, where public interests are concerned as though de jure, we are of opinion that all of Mr. Hamilton’s votes during that period were effective and the adjournments legal.</p> <p>Why he voted at the meeting of November 1, 1909, the second decree of ouster having been filed October 26, 1909, does not appear. Whether because the writ had not been served upon him up to that time, or other reasons, is immaterial as there was an affirmative majority without his vote.</p> <p>Upon the final passage of the ordinances over the veto, Mr. Hamilton did not vote, his place having been filled by the election of Joseph Gallup.</p> <p>Other objections urged by the plaintiffs are that the ordinances “were not acted upon at the next regular meeting of council after the said ordinances and veto were returned to council,” and that they “did not receive the affirmative votes of three-fourths of the members elect composing the council.”</p> <p>The Act of May 23, 1893, P. L. 113, does not require action to be taken upon a veto at any particular meeting or within any specified time, only that after a veto has been returned and spread upon the minutes, that the “council shall proceed to a reconsideration of such ordinance.”</p> <p>Public interest requires deliberation rather than haste, in legislation, as is evidenced by the constitution of our state and others; for haste too often results in the enactment of ill advised, improvident and some times vicious or injurious laws.</p> <p>Nor does this act require that the ordinance shall be passed over the veto by a three-fourths or even a two-thirds vote of the members elected to make it operative, but specifically provides, “that when the number of councilmen is less than nine (in Coatesville the number is seven,) a majority of council and one vote more, shall be required to pass an ordinance over the veto.” These ordinances were passed over the veto by a vote of five to two —a majority of council and one vote more.</p> <p>Another objection is that the proposed drainage system has not been approved by the state board of health as required by law.</p> <p>The drainage contemplated, is to provide solely for the rain, snow and surface waters, and we know of no act of assembly requiring drainage systems for such uses to be approved by the state board of health, nor have we been referred to any. . . .</p> <p>There remains but one other objection for consideration, viz.: “That the borough council had no jurisdiction or authority to lay out or vacate streets on the dividing line between the borough and township or beginning in the borough and ending in the township or vice versa, which the ordinances propose to do in the vacation of Second avenue and the street on the dividing line between the borough and Amos S. Scott and S. Horace Scott.”</p> <p>So much of this objection as relates to the Scott property need not be considered, as it was not urged upon the trial, and all the parties interested in the two rights of way across the Pennsylvania Railroad at Eleventh avenue have sold and released their rights in the same to said railroad company by agreement duly executed on November 2, 1909; and the stipulation or agreement first above referred to executed and filed by said company releases and relieves the defendant borough from any expense or damages outside the limits of the same.</p> <p>The sole remaining question is — has the borough the power to vacate that portion of second avenue which crosses the tracks of the Pennsylvania Railroad Company?</p> <p>The Acts of May 16, 1891, P. L. 75, and May 22, 1895, P. L. 106, in granting to municipalities power to open, vacate, etc., streets and alleys, restricts it by the words “within its limits,” while the Act of April 23, 1856, P. L. 525, in making a similar grant to boroughs, use the word “therein,” both meaning the same thing and restricting the jurisdiction to streets and alleys “therein” or “within its (the borough) limits.”</p> <p>The judicial construction therefore given the word “therein” is equally applicable to the words “within its limits,” and the former has been held to apply only to streets, etc., wholly within the limits of the borough.</p> <p>In Somerset & Stoystown Road, 74 Pa. 61, the court says: “But by streets and alleys ‘therein’ that is within the borough limits — must necessarily be meant such as begin and end therein, and not such public roads as are or may be opened through the borough, of which a part only is within the borough limit.’ ”</p> <p>In South Chester Road, 80 Pa. 370, the court says: “The public road lies within the borough of South Chester as laid out by the viewers, and as is manifest from the entire record. Being wholly within the borough, the court of quarter sessions had not jurisdiction, as is well shown in the case of the Somerset & Stoystown Road, 74 Pa. 61.”</p> <p>Both these cases are cited with approval by the court in Parkesburg Borough Streets, 124 Pa. 511.</p> <p>In Palo Alto Road, 160 Pa. 104, the proceedings were in the court of quarter sessions and exception was taken to the report of the reviewers on the ground, that said court had no jurisdiction, because the portion of the road or street to be vacated was within the borough of Palo Alto. The part to be vacated, however, having been, before the incorporation of said borough, a portion of a public road beginning and ending outside the borough and passing through it, the court, after reviewing the authorities above cited, held, “We are therefore led to the conclusion that under these authorities, the jurisdiction in this case is in the quarter sessions, since the road is not one wholly within the borough limits.”</p> <p>In view of these decisions and the construction they place upon the word “therein,” we are of the opinion that the borough of Coatesville has no power to vacate that portion of Second avenue, before described, it forming part of a public highway extending beyond the borough limits, and therefore within the jurisdiction of the court of quarter sessions.</p> <p>To much of the writ of injunction heretofore issued, as restrains the borough from vacating that portion of Second avenue, must be made perpetual; and as to the remaining portions of the plaintiff’s bill and prayers, they are dismissed and the injunction dissolved.</p> <p>We therefore make the following decree:</p> <p>It is hereby ordered and decreed that the writ of preliminary injunction heretofore issued be made perpetual in so far as it enjoins and restrains defendants from vacating that part of Second avenue crossing the tracks of the Pennsylvania railroad, and is dissolved as to the remainder of the bill and prayers, which are dismissed; the costs to be paid equally by the plaintiffs and defendants.</p> <p>Error assigned was decree of the court.</p>

<p>Appeals — Arbitration—Referee’s findings of facts.</p> <p>A referee’s findings of fact confirmed by the court below and based upon sufficient evidence will not be reversed by the appellate court in the absence of manifest error.</p>

<p>Equity — Jurisdiction—Ejectment bill — Remedy at law — Act of June 7, 1907, P. L. 440.</p> <p>1. A bill in equity praying for an injunction to restrain the mining of coal, for an inspection of the mines, for discovery, and an accounting of coal mined and removed, and averring ownership of the plaintiff in the land, is properly certified under the Act of June 7, 1907, P. L. 440, to the law side of the court when the answer claims ownership in fee simple in the defendant.</p> <p>2. In such a bill the primary question is one of title, and the right to discovery and account is dependent on the plaintiff’s title to the land.</p>

<p>Appeals — Failure of court below to write opinion — Remitting record.</p> <p>Where the court below fails to file an opinion, in making absolute a rule for judgment for want of a sufficient affidavit of defense, and merely enters an order “rule absolute,” the record will be remitted so that the court below may indicate its reasons for its action.</p>

<p>Appeal No. 197, Oct. T., 1910, by plaintiff, from judgment of C. P. Jefferson Co., April Term, 1910, No. 132, on verdict for defendant in case of Veronica D’Jorko v. Berwind-White Coal Mining Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Reed, P. J.</p> <p>The court charged as follows:</p> <p>[If it were permissible under the law which in my judgment controls the disposition of this case to submit it to you for determination upon the evidence I would feel constrained to say that there is very little, if any, evidence of negligence on the part of either the mine foreman or on the part of the fire boss to sustain a verdict against either, much less to sustain a verdict against the defendant company.] [1]</p> <p>[The plaintiff alleges two grounds of negligence upon which a right of recovery is based: First, the failure to provide safety lamps for use in the mines; and, Second, the failure to drive bore holes for the ascertainment of inflammable gases, etc. There has been no testimony offered to support the first ground of complaint, and the evidence to show that there was a necessity for driving bore holes is of a very doubtful, circumstantial character. It is so meager that the case is brought dangerously near the realm of conjecture on that question; and the law forbids the submission of a case where the evidence leaves the alleged negligence so doubtful that the jury has to guess at it in reaching a verdict.] [2]</p> <p>But if I could see my way to submit the case to you upon the evidence, I am confronted with an act of assembly, passed May 15, 1893, which places the underground workings of mines like the one in question in the charge and supervision of a mine foreman. [The conduct and operation of the interior of the mine, so far as the same relates to the safety of the employees, is taken out of the possession and control of the owner, and placed in charge of a certified foreman, with whom the owner or his superintendent may not interfere.] [4]</p> <p>[Counsel for the plaintiff have made special reference to sec. 1 of art. Y of this act, which forbids the accumulation of explosive gas to exist in the worked-out or abandoned parts of a mine when it is practicable to remove it; and to sec. 3 of the same article, which provides for the driving of bore holes when mining is being carried on in dangerous proximity to an abandoned mine or part of a mine suspected of containing inflammable gases. And the failure to drive these bore holes is the negligence charged against the defendant. The latter part of sec. 3 provides, however, that the work of driving bore holes is to be done under the immediate instruction of the mine foreman;] [5] and sec. 1, of art. XX, provides that the mine foreman shall attend personally to his duties in the mine, and carry out all the instructions set forth in said act of assembly. In other words, the necessity for driving bore holes and the driving of such holes belong to the interior workings of the mine, and as such are committed to the charge and supervision of the mine foreman. He is not only liable in damages to anyone injured by his neglect or refusal to perform the duties imposed upon him by the statute, but he is also criminally liable for neglect or refusal to perform all the duties required to be performed by him.</p> <p>[It has been repeatedly decided by our appellate courts that under this statute the mine owner is not responsible or liable for the negligence or neglect of duty of the mine foreman. As late as March 28th of this year the Supreme Court, in an opinion delivered by Mr. Justice Mestkezat in the case of Dempsey v. Buck Run Coal Company, 227 Pa. 571, held that where the plaintiff alleged that he was injured by an explosion of gas which had accumulated in the mine by reason of improper appliances and by failure of the defendant to place proper tail battices to prevent gas entering the place in which he was working, etc., there could be no recovery against the company or owner of the mine: and this for the reason that the statute referred to took from the owner the interior workings of the mine, and placed the same in charge of a certified foreman.] [6]</p> <p>[I am unable to distinguish the case on trial from the case referred to. And, following this latest utterance of the Supreme Court on the matters here involved, I must assume the responsibility of deciding as a matter of law that there can be no recovery by the plaintiff against the defendant under the facts in this case.] [7]</p> <p>[Reference has been made to what is known as the employers’ liability act, passed in 1907; but in my opinion has no application to the facts here, and does not change the law as heretofore declared as applicable in the circumstances of this case.] [8] [If it did, I would have to hold that it was unconstitutional and void so far as this case is concerned, in that the legislature may not take the control and management of one’s business out of his hands and place it in charge of another and prohibit him from in any way interfering with the control and management of the person in whose charge it has been placed, and at the same time make him answerable in damages for that person’s negligence or mismanagement of the same.] [11]</p> <p>[For the reasons stated, the defendant’s point asking for binding instructions in its favor, is affirmed, and a verdict is directed accordingly.] [12]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (1-12) portions of charge.</p>

<p>Constitutional law — Special legislation — Regulation of hours of labor— Municipalities — Municipal corporations — Private powers and duties— Classification — Act of July 26,1897, P. L. 418.</p> <p>1. The Act of July 26,1897, P. L. 418, entitled “An Act to regulate the hours of mechanics, workingmen and laborers in the employ of the State or municipal corporations therein, or otherwise engaged in public works,” is unconstitutional, inasmuch as it contravenes Art. Ill, sec. 7, of the constitution of Pennsylvania which provides that “the General Assembly shall not pass any local or special law .... regulating labor, trade, mining or manufacturing.”</p> <p>2. Although the act, by its terms, includes all the municipalities in the state, yet, as its subject is one not within the purposes of classification, it is a special law within the meaning of the constitution.</p> <p>3. Municipalities with respect to matters not political and governmental, but proprietary and private, are to be regarded as private corporations.</p> <p>4. So far as a municipal corporation is endowed by law with the power of contracting, and is made capable of acquiring, holding and disposing of property, and subject to the liabilities incident to the exercise of such power and capacity, such municipal corporations must stand on the same ground of exemption from legislative control and interference as a private corporation.</p>

<p>Appeal, No. 166, Jan. T., 1910, by A. E. Ford, from decree of O. C. Phila. Co., Oct. T., 1909,' No. 144, dismissing exceptions to adjudication in Estate of Clara Dolan, deceased.</p> <p>Exceptions to adjudication.</p> <p>Lamorelle, J., the auditing judge, found the facts to be as follows:</p> <p>The one question to be determined is whether any of the creditors, save and except the undertaker and those whose advances were incident to administration, have any claim whatsoever upon the fund; and, to decide that, we must first ascertain whether it is real estate or personalty that is to be distributed. If it is real estate, then, as none of the creditors have complied with the Act of June 8, 1893, P. L. 392, their so-called lien is gone, and they are not entitled to participate.</p> <p>And in the first place it will be necessary to trace the origin of the fund.</p> <p>It appears that Clara A. Dolan, as one of the ten children of Thomas Moore, deceased, was the owner of an undivided one-tenth interest in and to certain real estate situate in the county of Philadelphia, and State of Pennsylvania. On January 2, 1907 (two weeks prior to her decease), she filed a bill in equity in common pleas, No. 2, as of December Term, 1906, No. 2309, for partition. Her death was afterwards suggested of record, and Gertrude S. Lubey, as testamentary guardian of said Clara Adelaide and Edward Rodney Dolan, minors, was substituted of record as plaintiff. Gertrude S. Lubey, as executrix, also appeared as a party respondent. In due course, a master was appointed, who, after having filed his report finding that no partition could be had without prejudice or spoiling the real estate; and that none of the parties were willing to take any of the separate properties at the valuations put upon them, recommended that a sale be ordered. On September 22,1908, the master was directed to make sale of the various properties, and, by decree of November 21, 1908, to make “partition and distribution .... among the several parties. . . .” All of the properties, except one, were sold by the master within two years from the date of the death of decedent. That one, situate No. 1639 North Broad Street, was sold at private sale by the master, under the authority of Act of May 22, 1895, P. L. 114, on June 11, 1909, and the sale duly confirmed by the court, June 22, 1909.</p> <p>All moneys, as received, were distributed by the master to the parties entitled thereto, with the exception of the one-tenth now before the auditing judge. One-half of this fund, as appears from his sixth interlocutory report, was claimed by The Commonwealth Title Insurance arid Trust Company, guardian of Edward R. Dolan, one of said minor children, after the payment of the debts of Clara A. Dolan. On the other hand, the executrix (ancillary) claimed that the fund should be paid to her in order that the orphans’ court, as the proper tribunal, might distribute it, this court being the only one for the ascertainment of a decedent's debts. Upon the authority of Anderson v. Anderson, 183 Pa. 480, the master awarded the fund to the present accountant as executrix ancillary, and his report was confirmed by decree entered April 8, 1909.</p> <p>The auditing judge overruled the claim of the creditors on the ground that they had lost their lien upon the fund by failing to comply with the provisions of the act of 1893, and awarded the fund to the heirs.</p> <p>Exceptions to the adjudication were dismissed by the court.</p> <p>Errors assigned were in refusing to allow the claim of the creditor, A. E. Ford, and in awarding the fund to the heirs.</p>

<p>Road law — Streets—Paving—Charges for paving — Discretion of councils — City of Philadelphia — Act of March SO, 1866, P. L. 364-</p> <p>1. The Act of March 30, 1866, P. L. 354, which provides that the charges made by the city of Philadelphia for paving “shall be fixed, from time to time, by ordinances of councils,” commits to the discretion of councils the fixing of the cost charge of paving, and unless such a charge is fixed at an obviously unreasonable figure in a proceeding against a property owner to recover the cost of paving, the courts will not interfere, or even receive evidence upon the point.</p> <p>2. The courts will not review the discretion of councils in fixing the cost charge of paving at the rate of $2.60 per square yard although the actual contract price of the work is only $2.16 per square yard.</p>

<p>Municipalities — Contracts—Appropriation by councils — Legal expenses — Act of April 21,1858, P. L. 885.</p> <p>1. . Under the Act of April 28,1858, P. L. 385, no contract is legally binding upon the city of Philadelphia unless there has been “an appropriation sufficient to pay the same previously made by councils.”</p> <p>2. Where councils pass an ordinance appropriating $5,000 to pay counsel for legal services rendered, in a particular suit mentioned, and, by another item, appropriating $10,000 “for expenses connected with the investigation” of transactions connected with the suit and similar matters, a special counsel, after receiving the sum of $5,000 for services rendered in the suit before the ordinance was passed, cannot claim any of the $10,000 mentioned in the second item, although he has earned additional compensation over and above the sum of $5,000, and is morally entitled to receive it.</p>

<p>Appeal, No. 177, Jan. T., 1910, by plaintiffs, from order of C. P. No. 5, Phila. Co., Dec. Term, 1906, No. 3,019, refusing to take off nonsuit in case of Isaac Marcus and Claire Marcus, his wife, v. Gimbel Brothers, Incorporated.</p> <p>Trespass to recover damages for personal injuries. Before Staake, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial when Mrs. Marcus was on the stand, the following offer was made:</p> <p>Mr. Powell: I am going to prove that Mr. Hoffman was sent by Mr. Barrett with instructions to get the silk, and that he was to use force, if necessary, to do it, and that he so stated to this witness over the ’phone prior to sending Hoffman to her house.</p> <p>Mr. Hepburn: That is objected to.</p> <p>Mr. Powell: I intend to follow that up by showing that Mr. Barrett called the witness up — that she asked him who it was and he said it was Mr. Barrett and she recognized his voice over the ’phone, and he then said to her, "You have got this silk by some false pretense,” and said she would have to give it back and said, "Don’t dare cut it,” and he was going to send Mr. Hoffman to come iip for it and use force if necessary. Then to follow that up by showing that Mr. Hoffman came there and stated that he was told to use force and did use force to get this silk.</p> <p>The Court: For the reasons stated, I sustain the objection to the offer.</p> <p>The court granted the plaintiff an exception to the above ruling. [1]</p> <p>Mr. Powell: I offer to prove that later on, on the twenty-fourth, George Hoffman called to obtain this eighteen yards of silk, and that in getting it he committed an assault upon this witness.</p> <p>Objected to.</p> <p>The Court: I cannot pass upon what you may do, but only upon what you are asking me to do at this time. If you propose to prove your case in some other way I will be very glad to pass upon each offer as it is made but so far as the present offer to prove the agency of Hoffman by his own declaration made to the witness is concerned, I shall have to overrule that offer.</p> <p>The court grants the plaintiff an exception to the above ruling. [2, 3]</p> <p>Mr. Powell: I now make the offer to prove by this witness the allegations contained in our statement of claim filed to the effect that there was an assault committed on her by one of the employees of Gimbel Brothers, one George Hoffman, who was sent to her house to secure certain silk — that in the securing of that silk he committed an assault — and then I intend to follow that up by .showing the nature of the assault, the injuries sustained by the plaintiff, and the loss sustained by her and her husband.</p> <p>Mr. Hepburn: I object until it is shown that Hoffman was sent to the house of the plaintiff.</p> <p>The Court: That Hoffman was sent to the house of the plaintiff or her husband — that is to the residence of Mr. and Mrs. Marcus, by some one authorized to send him for that purpose?</p> <p>Mr. Hepburn: Yes.</p> <p>The Court: And that must necessarily precede any effort to hold the defendant company responsible for what Hoffman may have done.</p> <p>Mr. Powell: I make the offer at this time, because if your honor overrules my offer, that is my case.</p> <p>The Court: I sustain the objection for the reasons which have actuated me in sustaining the prior objections. The court granted plaintiff an exception to the above ruling. [4]</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>Principal and surety — Surety companies — Extension of time — Municipal contract.</p> <p>A surety company is not relieved of liability on its bond by an extension of time given to its principal, where it appears that the bond was given to a city under the requirements of an ordinance, for the benefit of all persons who might furnish labor or material in the course of public work, whether the contracts for such labor and material were in existence at the time the bond was executed or not, and without regard to the terms of the purchase whether for cash or on credit, that the extensions did not go beyond the time limit for suit on the bond, and that the surety suffered no material harm by the extensions.</p>

<p>Trusts and trustees — Deed of trust — Construction by act of parties.</p> <p>Where a person, who has an absolute interest in certain personal property under a will, and an interest in certain stock directed to be held in trust by the same will, executes a voluntary deed of trust in which she refers to her absolute interest in personal property under the will, and enumerates certain items of personal property, but not the interest in the stock, and thereafter the dividends on the stock continue to be paid to her personally, and not to her trustee under the deed of trust, the court will construe the deed of trust as not passing any title in the stock to the trustee.</p>

<p>Appeal, No. 295, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1908, No. 2,700, on verdict for defendants in case of George W. Waslee, Assignee of G. Percy Lemont, Assignee of George W. Waslee, who was Assignee of the Continental Title & Trust Company, who was Assignee of George W. Waslee, the Mortgagee, v. Paul Rossman, Mortgagor, and Lulu Waslee, real owner.</p> <p>Scire facias sur mortgage. Before McMichael, J.</p> <p>The court charged in part as follows:</p> <p>This suit is upon a mortgage for $4,250. The suit was brought in the name of G. Percy Lemont, assignee of George W. Waslee, who was assignee of the Continental Title and Trust Company, who was assignee of George W. Waslee, the mortgagee, v. Paul Rossman, mortgagor, and Lulu Waslee, real owner. No interest was ever paid upon this mortgage, and the suit is to recover the principal sum and interest. The mortgage is secured upon the premises 1942 North Eleventh street, Philadelphia. It appears that George W. Waslee had agreed to purchase the property from Moses Hamburger and had paid $100 on account, and at or about May 8, 1905, he paid the balance of the purchase money for the property to Moses Hamburger. George W. Waslee, however, did not take the title in his own name, but on May 8, 1905, Moses Hamburger conveyed to Paul Rossman (who was a straw man), the consideration mentioned in the deed being $4,250. On the same day, Paul Rossman created a mortgage for $4,250, upon which the present suit has been brought; and upon the same day, May 8, 1905, Paul Rossman conveyed to George W. Waslee for a consideration mentioned in the deed of one dollar, subject to the mortgage of $4,250 from Rossman to Waslee. The deed from Hamburger to Rossman, and the mortgage from Rossman to Waslee was recorded May 8, 1905. The deed from Rossman to Waslee was not recorded until January 9, 1906. On January 9, 1906, George W. Waslee assigned to the Continental Title and Trust Company the mortgage for $4,250, and on the same day George W. Waslee created a mortgage in favor of the Continental Title and Trust Company for $2,500. The assignment and the mortgage for $2,500 were recorded on January 9,1906. The transaction between George W. Waslee and the Continental Title and Trust Company was as follows: The Continental Title and Trust Company loaned to Waslee $2,500 upon his collateral note, with the mortgage for $4,250 as collateral security, and also took a mortgage from Waslee for $2,500 upon the same property. On January 12th, 1906, George W. Waslee, by deed recorded the same day, conveyed the premises in question to Paul Rossman for a consideration mentioned in the deed for $1.00, subject to a mortgage of $2,500 created in favor of the Continental Title and Trust Company. The deed from Waslee to Rossman of January 12, 1906, recited the deed from Rossman to Waslee of May 8, 1905, subject to the $4,250 mortgage, and then uses the following words: “which said mortgage debt is intended to be paid off and satisfied of record.” On the same date, Paul Rossman conveyed the premises to Lulu Waslee, for a consideration mentioned in the deed of $1.00, subject to the $2,500 mortgage. On March 11, 1907, Lulu Waslee paid to the Continental Title and Trust Company $2,500, which George W. Waslee had borrowed, the $2,500 mortgage to the Continental Title and Trust Company was satisfied of record as of March 15, 1907, and the mortgage of $4,250 was assigned back to George W. Waslee. This assignment was recorded on March 12, 1907. On October 3, 1908, George W. Waslee assigned to G. Percy Lemont the $4,250 mortgage. This assignment was recorded January 7, 1909. G. Percy Lemont gave no consideration whatever for this assignment, but acted in the matter simply for Waslee, as what is called a “straw man.” G. Percy Lemont brought suit upon the mortgage, and the praecipe for sci. fa. is marked filed October 22,1908. On May 1,1909, G. Percy Lemont reassigned to George W. Waslee the $4,250 mortgage, which assignment was recorded May 7, 1909.</p> <p>As I have reached the conclusion that there is nothing to be submitted to the jury, and that it is the duty of the court to instruct the jury to find a verdict, I shall give my view briefly in order that my view as trial judge may be reviewed by the court in banc, or, if desired by the Supreme Court.</p> <p>Among other defenses set up by the defendant, is the equitable defense that George- W. Waslee is stopped from enforcing the mortgage against Lulu Waslee, because in the deed of January 12, 1906, he conveyed the premises to Rossman subject to the $2,500 mortgage, and reciting the deed of Rossman to Waslee of May 8, 1905, subject to the $4,250 mortgage, used thereafter the following words: “Which said mortgage debt is intended to be paid off and satisfied of record,” and the deed from Paul Rossman to Lulu Waslee, recites the consideration of $1.00, subject to the $2,500 mortgage. (The deed from Paul Rossman to Lulu Waslee, of January 12, 1906, is silent as to the $4,250 mortgage). If the present mortgage had been sold for value and the assignee of the mortgage were attempting to enforce the mortgage, the law might be different, but the trial judge is of opinion that the defense is a valid one against George W. Waslee, and as it arises from the deeds themselves, there is no question for a jury to consider; and that the present plaintiff, George W. Waslee, cannot enforce his mortgage against Lulu Waslee, because the words of his deed to Paul Rossman, of January 12, 1906, “which said mortgage debt is intended to be paid off and satisfied of record,” estop him from enforcing the $4,250 mortgage.</p> <p>For this reason the jury is instructed to find a verdict for the defendant. [3]</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (2) directing a verdict for defendant; (3) charge as above quoting it; (4) in refusing a motion for judgment for plaintiff n. o. v.; (5, 6) in rejecting offers of evidence as to a mistake of scrivener in inserting in the deed the covenant as to the satisfaction of the mortgage.</p>

<p>Appeal, No. 343, Jan. T., 1910, by Emily Hoopes, from decree of O. C. Phila. Co., April Term, 1901, No. 693, dismissing exceptions to adjudication in Estate of Martha E. Hoopes, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

<p>Appeal, No. 349, Jan. T., 1910, by plaintiff, from order of C- P* No. 4, Phila. Co., June T., 1909, No. .3,290, making absolute rule to open judgment in case of Peter Jaffe v. Nathan Cooperman et al. Before</p> <p>Petition to open judgment.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule to open judgment.</p>

<p>Mortgages — Corporate mortgage — Sinking fund — Coal lands.</p> <p>Where a mortgage on coal lands, given to a trustee by a mining company, to secure an issue of bonds, provides that “where all said bonds shall have been purchased, or when the amount in the hands of the trustee shall be equal to the principal and interest of the bonds then outstanding the payments into the hands of the trustee for a sinking fund shall cease,” the mortgagor may cease to make annual payments into the sinking fund, whenever the amount of the principal and interest then due and accrued upon the bonds outstanding is in the hands of the trustee, provided however that the mortgagor shall continue to pay all interest on the outstanding bonds as it accrues, and continue to keep in the hands of the trustee an amount of securities sufficient to pay all outstanding bonds.</p> <p>Me. Justice Moschziskeb dissents.</p>

<p>Appeals, Nos. 237 and 238, Jan. T., 1910, by George W. Yerger, Jr., et al., from decrees of C. P. No. 3, Phila. Co., March T., 1909, No. 992, and Dec. T., 1908, No. 4,595, dismissing and sustaining bills in equity in cases of George W. Yerger, Jr., assignee of Jules E. Aronson v. Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn under the will of Townsend Sharpless, deceased, and Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn under the will of Townsend Sharpless, deceased, v. Jules E. Aronson, A. Florence Yerger and George W. Yerger, Jr., and William H. Yare, recorder of deeds.</p> <p>Bill in equity for the cancellation of a deed.</p> <p>Bill in equity for the specific performance of a contract of sale. Before McMichael, J.</p> <p>From the record it appeared that on August 5, 1908, Ezekiel Hunn, Jr., trustee, entered into a written agreement with A. Florence Yerger, as agent for Jules E. Aron-son, for the sale of the premises at No. 1508 Arch street, Philadelphia, for the sum of $33,000, of which $500 was paid in cash at the signing of the agreement; $7,500 was to be paid at the settlement, and the balance of $25,000 was to remain on first mortgage, for three years. The .premises were to be conveyed “free and clear of all incumbrance and easements;” and the title was to be such as would be insured by any reputable title company of Philadelphia. The agreement was to be performed within sixty days of its date, which time was to be of the essence of the agreement, unless extended by mutual consent in writing indorsed thereon. It further appeared that the purchaser applied for a policy of title insurance, and the title insurance company issued its settlement certificate for the property which showed as exceptions not to be covered by the policy, that the premises were situated in the bed of the projected Parkway, on the city plan, and that they were subject to the terms of an ordinance for the widening of Arch street. The sixty days allowed by the agreement for settlement expired on October 4, 1908. It was arranged that the settlement should be made on October 3, at the office of the title company; but a postponement was made until October 6, and on that date there was a second postponement until the following day; but no settlement was then made. On October 9, the vendor tendered an excuted deed to the agent for the purchaser, but settlement was not made. The court below found as a fact that this was a legal tender of the deed to the representative of the defendant. No agreement in writing to extend the time of settlement, as required by the terms of the contract, was shown. On November 20,1908, Jules E. Aronson executed and delivered to George W. Yerger, Jr., an assignment of all his right, title and interest in the agreement of sale with Hunn, trustee; and this assignment was filed in the office of the recorder of deeds at Philadelphia. On February 8, 1909, Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn under the will of Townsend Sharpless, deceased, filed a bill in equity in the court of common pleas, No. 3, of Philadelphia county against Aronson, Yerger, et al., praying that the assignment by Aronson to Yerger should be surrendered and cancelled and marked null and void on the record. On March 10,1909, George W. Yerger, Jr., assignee of Jules E. Aronson, filed a bill in equity against Ezekiel Hunn, Jr., trustee as above, praying for specific performance of the agreement of sale. This bill was filed in court of common pleas, No. 3, and the two cases were put at issue and tried together. The trial judge filed his adjudication, findings and opinion in the former case, and sustained the contention of Ezekiel Hunn, Jr., substituted trustee, etc., and held that the assigned agreement should be surrendered, and canceled on the record. Exceptions were filed on behalf of the defendants, and were dismissed by the court, and a final decree made on July 12, 1910,- in accordance with the findings of the trial judge.</p> <p>It was the intention both of the court and of the parties, that the adjudication, findings, exceptions and order dismissing them, should apply to both cases; and in accordance with this understanding, the bill praying for specific performance of the agreement was dismissed. Appeals were taken by the defendants in the former case, and by the plaintiff in the latter case, the former appeal being No. 238, and the latter No. 237, of the present term. The appeals involved the same questions, and were argued together.</p> <p>Errors assigned in No. 238 were as follows: (1) The court below erred in sustaining the bill in equity filed by the plaintiff; (2) the court below erred in dismissing the exceptions filed by the defendant to the findings of fact and to the opinion of the court; (3) the court below erred in refusing to consider the findings of fact filed by the defendants on February 7,1901; (4, 6, 7, 11) dismissal of exceptions to findings of fact; (5) dismissal of an exception to a finding of fact set forth in an extract from the opinion of the trial judge, quoting the extract.</p> <p>Errors assigned in No. 237 were substantially the same as in 238 except (10) which was as follows: The court below erred in dismissing the thirteenth exception filed to findings of fact, and to the opinion of the court, as follows:</p> <p>The learned trial judge erred in confusing together and treating as one suit, the case of Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn, under the will of Townsend Sharpless, deceased, Jules E. Aronson, A. Florence Yerger, George W. Yerger, Jr., and William H. Yare, recorder of deeds, C. P. No. 3, December Term, 1909, No. 4,595, and the case of George W. Yerger, Jr., assignee of Jules E. Aronson, plaintiff, Ezekiel Hunn, Jr., substituted trustee for Lydia J. Hunn, under the will of Townsend Sharpless, deceased, defendant, C. P. No. 1, March Term, 1909, No. 992, the agreement between counsel in said cases being as follows:</p> <p>"It is agreed by counsel for plaintiff and defendant that the evidence taken here shall apply to both bills, but that separate findings be submitted in each case.”</p>

<p>Trusts and trustees — Will—Termination of trust.</p> <p>1. Where a testator directs his executors to pay a sum stated annually to his wife out of the rents of a specified piece of real estate until the property is sold, when a sufficient sum is to be set aside in good securities to produce the annuity to the wife, and the executors sell the specified real estate and invest a portion of proceeds in other real estate, and the title is taken in the name of one of the executors who executes a deed of trust declaring that she holds the property to secure the annuity to testator’s widow for life “and after her decease for the use and behoof of the residuary devisee” of testator, and it appears that by the terms of testator’s will the securities for raising the annuity were given to testator’s children after the decease of the widow, with no direction that the security should be sold or converted by the trustee, the trust ends immediately upon the death of the widow, and if thereafter the trustee dies, a substituted trustee will not be appointed.</p> <p>2. In such a case no formal conveyance from a trustee is required to vest the legal title in the residuary devisees. Equity will treat the conveyance as having been made, and the devisees as owners may sell and convey, and the purchaser will take a title free and discharged from the trust.</p>

Appeal, No. 307, Jan. T., 1911, ,by Philadelphia Trust, Safe Deposit & Insurance Company, trustee, from decree of O. C. Phila. Co., April T., 1887, No. 311, sustaining exceptions to adjudication in estate of Philip R. Freas, deceased. Exceptions to adjudication. The opinion of the Supreme Court states the facts. Errors assigned were in sustaining exceptions to adjudication.

Appeal, No. 344, Jan. T., 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1904, No. 4,153, on verdict for plaintiff in case of John A. Roebling’s Sons Company of New York v. American Amusement & Construction Company. Assumpsit for goods sold and delivered. Before Wilt-bank, J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 94, Jan. T., 1910, by Amelia Crock, executrix, from decree of O. C. Phila. Co., April T., 1887, No. 520, dismissing exceptions to adjudication in Estate of George Crock, Sr., deceased. Exceptions to. adjudication. The facts are stated in the opinion of the Supreme Court. Error assigned was in dismissing exceptions to adjudication.

<p>Appeal, No. 176, Jan. T., 1910, by plaintiff, from decree of C. P. No. 2, Phila. Co., June T., 1909, No. 1,240, dismissing bill in equity in case of Mint Realty Company v. John Wanamaker.</p> <p>Bill in equity for an injunction. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 285, Jan. T., 1910, by plaintiff, from order of C. P. No. 1, Phila. Co., June T., 1900, No. 415, refusing to take off nonsuit in case of E. Clara Cornog v. William F. Wilson et ah, executors of the estate of Norris Wilson, deceased. Assumpsit on a promissory note for 16,500 by payee against the maker’s executors. Before Magill, J. The opinion of the Supreme Court states the case.

Appeal, No. 272, Jan. T., 1910, by plaintiff, from order of C. P. No. 3, Phila. Co., June T., 1906, No. 3,032, refusing to take off nonsuit in case of Harry A. Rodell v. Daniel Adams. Trespass to cover damages for personal injuries. Before Davis, J. The opinion of the Supreme Court states the case. Error assigned was order refusing to take off nonsuit.

Appeals, Nos. 131 and 132, Jan. Term, 1910, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1905, No. 2,092, on verdict for plaintiff in case of Mary Crowley and Edward Crowley, by Mary Crowley, Ms next friend, v. The Pennsylvama Railroad Company. Trespass to recover damages for personal injuries to a boy fourteen years old. Before Barratt, J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 76, Jan. T., 1910, by plaintiff, from decree of C. P. Lehigh Co., June T., 1909, No. 1, dismissing bill in equity in case of Clear Springs Water Company v. Catasauqua Borough. Bill in equity for an injunction. Before Trexler, P. J. The opinion of the Supreme Court states the case. Error assigned was decree dismissing the bill.

<p>Contract — Sales—Irregular deliveries — Time not essence of contract— Notice — Damages.</p> <p>1. Where the times and quantities of the deliveries specified in a contract of sale have not been observed strictly by either the seller or the purchaser nor insisted upon by either, the purchaser cannot suddenly rescind his contract with the seller without a fair warning of his intention to insist upon a literal compliance with it in future.</p> <p>2. Where a purchaser has wrongfully rescinded a contract of sale, the seller is entitled to recover the difference between the market price of the goods at the date of the rescission and the contract price, with interest.</p> <p>3. Where a purchaser has wrongfully rescinded a contract of sale, the fact that the seller subsequently accepted a check for the last delivery with the words written on the face of it “account in full,” does not release the purchaser from liability for damages for his wrongful rescission of the contract.</p>

<p>Appeal, No. 354, Jan. T., 1910, by Clinton R. Sinnott, from decree of O. C. Montgomery Co., March T., 1910, No. 10, Nov. T., 1909, No. 20, sustaining exceptions to adjudication in Estate of Joseph F. Sinnott, deceased.</p> <p>Exceptions to adjudication.</p> <p>The material portion of the adjudication of Solly, P. J., was as follows:</p> <p>This leaves but one question open, that is, What is a fair and reasonable compensation for the executors, other than the Fidelity Trust Company? It was agreed that the testimony of Walter George Smith, Esq., taken at the audit of the first account, should be considered with the same force and effect as if it had been taken at this audit. Referring to the adjudication of the first account, I found the following facts:</p> <p>The death of the testator caused a closing down of his vast business, because of the strict regulation of the United States government. The distillery was closed, as well as the rectifying departments at 242 South Front street, in the city of Philadelphia. In order that the business might be resumed, it was necessary for the executors to obtain license from the court of Philadelphia, and from the court of Westmoreland county. It also became necessary for the executors to furnish large bonds to the United States government. They were required to give bonds aggregating in amount about $2,509,000, and, as we understand, these bonds, are required to be annually renewed. There were about 40,000 barrels of whisky in the bonded warehouses at Gibsonton, and 30,000 barrels more belonging to customers. The decedent had established agencies in the cities of New York and Boston. Expert accountants were retained to examine the books and accounts of the decedent’s business, so that the executors might be properly informed of the situation. They retained Mr. John Sinnottas manager, as the testator expressly recommended, at a salary of $15,000 per year, and they placed a Mr. Daly in charge of the business at Gibsonton. The importance of the business, the great responsibility resting upon the executors, their positive duty to manage it for the best interests of the estate, called for the best business judgment, and the executors very properly resolved themselves into a board of directors, so to speak, held regular meetings, kept full minutes of every proceeding, and acted after full consultation and due deliberation. There were frequent consultations with the expert accountants, and the manager, and those in charge of the business at Gibson-ton. The manager was required to furnish accounts of the business each month, and full detailed statements every three months. There were daily consultations with the manager, and the executors’ counsel. Many difficult questions arose day after day, requiring not only work and labor to solve, but also the application of the very best business judgment. Under the laws of the state of Massachusetts, in order that the agency business in the city of Boston might continue, ancillary letters on the estate were required. This involved additional labor and responsibility. Another matter of grave concern arose out of the failure of the Real Estate Trust Company, of Philadelphia, the surety upon the bonds given by the executors to the United States. Immediately after the public had been informed of the failure of the company, United States officials notified the executors to file new bonds. This required the executors to find additional surety, and to act without delay, because failure to comply with the demand of the government would have resulted in the closing down of the entire distilling business.</p> <p>I further find the second and third accounts are confirmatory of the conservation of the estate by the executors; that the executors performed a vast amount of unusual and extraordinary labor imposed upon them by the testator; a very large amount of money passed through their hands, and as the result of their management of the business, a net profit of over $500,000 is shown.</p> <p>Practically all of the estate has been converted. The exceptant makes no point that the estate in the hands of the executors is not to be transferred at this time to them as trustees. He frankly stated that for the purposes of the case, the taking over of the assets of the distillery business might be regarded as an actual conversion. We are not, therefore, confronted with the situation the estate was in when the appeal was heard in the Supreme Court. The estate has not only been conserved, but for present purposes has been converted.</p> <p>On the subject of compensation, Air. Justice Stewart when this case was before the Supreme Court, said, “The basis on which compensation must be determined in every case where it takes the form of a commission, is the amount of the estate administered upon and accounted for. With this amount ascertained, such per centum rate may be allowed thereon as in the opinion of the auditing judge will afford just and reasonable compensation to the accountants.” He further said, “Until such conversion shall have been accomplished, no compensation will have been earned as to these assets, and therefore none will be allowed.”</p> <p>The estate, has been converted, and the executors are entitled to have their compensation fixed and paid. As to the compensation of the Fidelity Trust Company, that was fixed by the testator himself, under agreement of April 18, 1900. He agreed to appoint the company one of the executors and trustees, and provided that they should have a commission of one and one-half per centum of the principal of the estate if it inventoried over $1,000,000, and a commission of two per cent on the income, and that they should have for acting as trustees two per centum on the income, and an allowance of one-half of one per centum on reinvestments. The compensation of the company was graduated if the inventory was over $500,000 and less than $1,000,000, or if it was over $100,000 and less than $500,000. The agreement also provided that the company’s compensation should be outside of the compensation of the other executors and trustees, which the decedent was to fix.</p> <p>There is not and can be no question but that the compensation of the fidelity company has nothing to do at all with the compensation to which the other executors are entitled. “The rule is fair compensation for the amount and character of the labor. The responsibility involved in large estates is also an element to' be compensated, though not a controlling one:” Wistar’s Est., 192 Pa. 289. ‘ ‘ The labor and responsibility involved in the proper administration of the estate, and the care and skill shown by the executors in the performance of the duties connected with the trust, must be taken into consideration in passing upon their claim:” Lilly’s Estate, 181 Pa. 478.</p> <p>There are decisions without number, and the books are full of cases on the subject of the commissions or compensation of executors, administrators and trustees. A very complete brief of the cases in Pennsylvania is that of counsel for appellee in Wistar’s Est., 192 Pa. 289.</p> <p>There is no set rule as to percentage. In arriving at the compensation to which an executor is entitled, it is necessary to consider the amount, the estate, the labor performed, and the responsibility imposed.</p> <p>In the adjudication of the first account, we allowed a commission of five per cent, as claimed, which included the one and one-half per centum of the Fidelity Trust Company. If this estate was an ordinary one involving simple administration and conversion, a commission of three per cent upon the corpus administered and converted would be full and ample compensation. But the labor and responsibility of the executors has been extraordinary. The estate is a large one, requiring skill and great responsibility. It has been managed with signal ability, and everything has been wisely and judiciously done by the executors. The office of executor is not one of profit. They are entitled to be fairly compensated.</p> <p>We have given the matter careful consideration, and have reached the conclusion that the four executors, under all the circumstances, will be reasonably compensated within the meaning of the law if they receive two and one-half per centum on the corpus of the estate. This, with the compensation of the Fidelity Trust Company, the other executor under the special contract, will make the per centum of the executors four per cent.</p> <p>On exceptions to the adjudication Solly, P. J., filed an opinion in which he modified the adjudication so as to allow the individual executors three and one-half per cent commissions on the principal.</p> <p>Errors assigned were in sustaining exceptions to the adjudication.</p>

<p>Appeal, No. 50, Oct. T., 1911, by defendant, from judgment of O. & T. Beaver Co., March Sessions, 1910, No. 6, on verdict of murder of first degree in case of Commonwealth v. Charles E. Hickman.</p> <p>Indictment for murder. Before Holt, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict of guilty of murder of the first degree and sentence thereon. Defendant appealed.</p> <p>Error assigned was in overruling motion for new trial.</p>

Appeals, Nos. 35 and 36, Oct. T., 1911, by defendant, from decree of C. P. Beaver Co., in equity, Sept. T., 191Q, Nos. 2 and 3, continuing preliminary injunction in case of North Shore Railroad Company v. The Pennsylvania Company, leasing and operating The Pittsburg, Fort Wayne & Chicago Railway. Bill in equity for an injunction. Before Holt, P. J. The nature of appeal appears by the opinion of the Supreme Court.

Appeal, No. 308, Jan. T., 1910, by defendant, from judgment of C. P. Delaware Co., June T., 1909, No. 185, on verdict for plaintiff in case of Edwin F. Smith v. Chester Traction Company. Before Fell, C. J., Trespass to recover damages for personal injuries. Before Broomall, J. The opinion of the Supreme Court states the case. Verdict and judgment for $5,155. Defendant appealed. Error assigned was in refusing binding instructions for defendant.

<p>Taxation — Assessment—Appeal—Finding of fact.</p> <p>Where on an appeal by a landowner from the assessment of the county commissioners, the court has reduced the valuation to the public sale value, a finding of fact by it that such valuation is uniform with the valuation of other real estate throughout the county will not be disturbed except for manifest error.</p>

<p>Appeal, No. 195, Jan. T., 1911, by plaintiff, from judgment of C. P. Schuylkill Co., Jan. T., 1910, No. 78, on verdict for defendant in case of Borough of Mahanoy City v. Christiana Hersker.</p> <p>Assumpsit for fines for violation of an ordinance. Before Brumm, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned among others was in refusing binding instructions for plaintiff.</p>

Appeal, No. 20, Jan. T., 1911, by plaintiff, from order of C. P. Lycoming Co., Dec. T., 1909, No. 16, refusing to take off nonsuit in case of W. R. Haynes and Mary Ellen Haynes v. Anne M. Weightman Walker Penfield. Before Fell, C. J., Trespass for personal injuries. Before Hart, P. J. The facts appear in the opinion of the Supreme Court. Error assigned was in refusing to take off nonsuit.

Appeal, No. 264, Jan. T. 1910, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Sept. T. 1906, No. 5,020, for defendant non obstante veredicto in case of John J. Sloan v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. The opinion of the Supreme Court states the facts of the case. Verdict for plaintiff for $14,638. Subsequently the court entered judgment for defendant non obstante veredicto.

Appeal, No. 22, Jan. T., 1911, by plaintiffs, from judgment of C. P. Schuylkill Co., Nov. Term, 1905, No. 288, on verdict for defendant by direction of the court in case of Henry Paul, in his own right, and Edward Paul, by his father and next friend, Henry Paul, v. The Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. Before Bechtel, J. The facts appear in the opinion of the Supreme Court.

Appeal, No. 353, Jan. T., 1910, by defendant, from judgment of O. & T. Lackawanna Co., October Session, 1910, No. 13, on verdict of murder of the first degree in case of Commonwealth v. Dominic Colandro. Indictment for murder. Before Newcomb, J. The opinion of the Supreme Court states the facts. Verdict of guilty of murder of the first degree and judgment thereon. Defendant appealed. The errors assigned are sufficiently indicated in the opinion.

Appeal, No. 219, Jan. T., 1910, by defendants, from decree of C. P. Potter Co., June T., 1909, No. 1, directing an account on bill in equity in case of Albert S. Heck v. John R. Collins and Dorr R. Cobb. Bill in equity for an accounting. Before Smith, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court. Error assigned was decree awarding an accounting.

<p>Appeal, No. 17, Jan. T., 1911, by defendants, from judgment of C. P. Lackawanna Co., Sept. T., 1906, No. 1,172 on verdict for plaintiff in case of Merchants’ and Mechanics’ Bank of Scranton v. Marion Poore et al.</p> <p>Ejectment for land in the thirteenth ward of the city of Scranton. Before O’Neill, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for the plaintiff by direction of the court. Defendant appealed.</p> <p>Errors assigned were in overruling a certain offer and striking out testimony introduced by the defense to impeach the judgment and sale thereunder.</p>

<p>Appeal, No. 26, Jan. T., 1911, by plaintiffs, from judgment of C. P. Lackawanna Co., Nov. T., 1910, No. 484, for defendant on case stated in suit of Mary A. Lloyd and Samuel J. Lloyd v. Jacob Fen-dick.</p> <p>Case stated in assumpsit for purchase price of real property. Before Newcomb, J.</p> <p>The opinion of the Supreme Court states the case.</p>

<p>Appeal, No. 78, Jan. T., 1910, by plaintiff, from judgment of C. P. Franklin Co., Feb. T., 1908, No. Ill, on verdict for defendants in case of Jeremiah S. Yaukey v. W. L. Forney, W. L. Craig, Calvin Theodore Tolbert and Tilman Tolbert.</p> <p>Ejectment for land in Guilford township. Before Gillan, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>On the trial, while the plaintiff’s witness Tilman Tolbert was on the stand, the following offer was made:</p> <p>Mr. Sharpe: We propose to prove by this witness and other witnesses that W. L. Craig, before he received and took the lease from Calvin Theodore Tolbert, had express notice of the fact that J. S. Yaukey, the plaintiff, held a lease on this piece of ground from Tilman Tolbert and Calvin Theodore Tolbert, notice from both Tilman Tolbert, this witness, and from Calvin Theodore Tolbert.</p> <p>Mr. Walter: This is objected to because the witness, Til-naan Tolbert, is a stranger to the title and it has not been shown that he has any interest in the property such as would require the defendant, Craig, to inquire because of the information he received from him.</p> <p>The Court: The evidence offered upon this trial to show title in Tilman Tolbert is not of that character from which a resulting trust can be established; it is too vague, uncertain and doubtful; therefore, there is nothing in the case to show that Tilman Tolbert was in any wise interested in the land; a notice from him to the defendant of an outstanding lease was no notice, because the defendant was not bound to keep any account of it; the only persons who could give such notice are persons interested in the title; therefore, the objection is sustained; the evidence is rejected, and bill sealed to the plaintiff.</p> <p>Verdict for defendants and judgment thereon. Plaintiff appealed.</p> <p>Error assigned was refusal to admit the above offer.</p>

<p>■ Wills — Power of sale — Partial conversion — Failure of purpose.</p> <p>Where a testator has by will directed a sale of his real estate for the specific purpose of producing a fund to pay charitable bequests named, a part of the fund intended for a bequest which fails, goes to the heirs at law as real estate, and not to the next of kin as personal property, and this is the case although the real estate was actually sold.</p>

<p>Wills — Construction—“Die without issue” — Presumptions—Act of July 9,1897, P. L. 218 — Conditional limitations — Fee cut down by subsequent clauses.</p> <p>1. The rule of law prior to the Act of July 9, 1897, P. L. 213, was that iu the absence of any indication in the will to the contrary the words “die without issue” imported an indefinite failure of issue, and the effect of the act is to change that rule so that in the absence of other indications in the will the words are to mean a definite failure of issue in the lifetime or at the death of the person intended.</p> <p>2. A will must be construed as an entirety, so that, if possible, every part of it may take effect. Hence, the independent meaning of one provision must often be modified by reading it in connection with others. If a testator in one part of his will give to a person an estate of inheritance of lands, or an absolute interest in personalty, and in subsequent passages unequivocally shows that he means the devisee or legatee to take a lesser interest only, the prior gift is restricted accordingly. Subsequent provisions will not avail to take from an estate previously given qualities that the law regards as inseparable from it, as, for example, alienability; but they are operative to define the estate given, and to show that what without them might be a fee was intended to be a lesser right.</p> <p>3. A testator after devising to his two nieces an undivided one-half interest in certain real estate “unto them, their heirs and assigns forever” provided that “The above devises of real estate to ... . my nieces .... are to become absolute to them and their heirs whenever the said persons have married and have issue born, but should .... my said nieces .... die without lawful issue, I direct that the above real estate .... shall descend to and vest in the heirs of ” a third party; “it being my desire that should either” of my nieces “die without lawful issue, the property which I have devised to them or cither of them, should go to the heirs of the above named” third party. Held, (1) that the words “die without lawful issue” must be construed to mean a failure of issue in the lifetime of the nieces; (2) that the nieces took a conditional fee with a limitation over, by way of an executory devise, and so long as they remained unmarried and without issue they would not have an absolute fee and could not, therefore, convey a fee simple title.</p>

<p>Trial — Charge—Points for charge.</p> <p>1. The court commits clear error in declining points submitted for charge on the ground that the instruction prayed for was covered in the general charge, where the legal propositions contained in the points were correct, and the answers gave no'clear expression of the court's views as to the various propositions contained in the several points.</p> <p>Negligence — Master and servant — Inexperienced youth — Duty to instruct — Private railroad.</p> <p>2. In an action to recover damages for personal injuries the case is for the jury where there is evidence to show that the plaintiff, an inexperienced country youth sixteen years of age who had been working only a month for the defendant, was directed two or three days prior to the accident, to sand a rough, temporary track which he did by walking along the track in front of the donkey engine and dropping the sand from a can which he held in his hand, that the track ran through a cut, the sides of which were three or four feet high, that on the day of the accident by order of the engineer under whom ho was working by direction of the foreman, he got on the side of the bumper in front of the engine to sand the tracks, that to secure himself, he put his left foot around the end of the bumper, that the train started and after it had gone 150 feet there was a jolt and his left foot was caught between the bank and the end of the bumper, and plaintiff testifies that he received no instructions how to sand the rails while sitting on the bumper, or how to avoid the danger incident to the service.</p>

<p>Appeals — Jurisdiction—Determination of amount in controversy — A ct of May 5,1899, P. L. 248.</p> <p>1. Where on the distribution by an auditor of a fund, the proceeds of a sheriff’s sale of real estate, a mechanic’s lien claimant presented a claim for $2,162.77 and was awarded $1,266.20, and it appears that there was no dispute over the amount due the claimant, and all questions as to the validity of his lien were decided in his favor by the auditor, but the fund was insufficient to pay the lien, and other mechanics’ liens, in full because of the priority in distribution given to a mortgage, an appeal by the claimant questioning the right of such priority lies within the jurisdiction of the Superior Court.</p> <p>2. The intent of the Act of May 5, 1899, P. L. 248, was to make statutory provision for determining the appellate jurisdiction by furnishing standards of proof in two classes that should include every possible case. In issues involving title or possession of property, jurisdiction is determined by the certificate of the judge. In issues involving the payment of money, the amount claimed, if there has been no recovery, and the amount of the judgment or award when there has been a recovery, is the standard fixed by the act in order to establish a uniform rule.</p>

<p>Evidence — Judgments—Defenses—Executors and administrators^-Account — Payment—Jurisdiction, O. C: — Transcript—Jurisdiction, C. P.</p> <p>1. In settling the accounts of executors, administrators and guardians the jurisdiction of the orphans’ court is exclusive, and in a proceeding on its transcript in the common pleas, no defenses but payment and nul tiel record are available.</p> <p>2. On a scire facias to revive and continue the lien of a judgment entered in the common pleas, upon the filing of a certified transcript from the orphans’ court, showing a balance due by executors to the widow of the decedent, evidence is inadmissible to show that before the adjudication by the orphans’ court one of the executors had sold the widow six houses under a verbal agreement with her that he and his coexeeutor “were to take of such moneys as might come into their hands” as executors, the amount of the purchase price of the houses that was unpaid, the purpose of the offer, as stated by counsel, being to prove that long prior to the adjudication, the amount the widow was to be entitled to, had by the agreement mentioned, been paid her, and that nothing was then due her by the executors.</p>

<p>Appeal, No. 42, Oct. T., 1910, by plaintiff, from decree of C. P. No. 4, Allegheny Co., First T., 1908, No. 344, declaring valid a certain agreement in case of Frank R. Liggett, trustee, etc., v. Henry Kaufmann, Isaac Kaufmann and Morris Kaufmann, partners doing business as Kaufmann Bros.</p> <p>Alternative bill in equity to declare an option to renew a lease void or else to determine the rental thereunder. Before Swearingen, P. J.</p> <p>Sarah L. Hitchcock, the owner of certain property in the city of Pittsburg, leased a certain part of said property in 1885 to Jacob Kaufmann, Henry Kaufmann, Isaac Kaufmann and Morris Kaufmann, partners trading as Kaufmann Bros., and leased the remainder of the property to the said lessees by lease dated July 29, 1889. Both of these leases expired April 1, 1898, but contained options for renewing the same for two additional terms for five years each under a rental to be fixed by arbitrators, both of which options were accepted by the lessees, who erected a building for department store purposes and, under the leases and the renewals, continued to occupy the building until April 1, 1908. Sarah L. Hitchcock died April 15, 1892, and by her last will and testament Marcus A. Woodward and John Liggett were appointed executors and trustees, both of whom died, and Frank It. Liggett became their successor and sole trustee. On November 20, 1897, an agreement was executed between John Liggett and Marcus A. Woodward trustees of the first part, and Jacob Kaufmann, Isaac Kaufmann, Morris Kaufmann and Henry Kaufmann, partners doing business under the name of Kaufmann Bros., of the second part, giving to the second parties further options for the renewals of the leases for two additional terms; Jacob Kaufmann, one of the partners, died on November 1, 1905, at which time the option under the last lease had not been accepted. The plaintiff filed a bill in equity averring that the three surviving partners had formed a new firm and claimed the right to renew the leases and had declared their intention to hold the premises. The bill prayed that the option in question be declared void and be ordered given up for cancellation, or, if the option should be declared valid, that the court should determine the rental thereunder. The court filed a decree holding that the defendants had a right to renew the lease and fixing the rental at 890,000 per annum.</p> <p>Error assigned was in dismissing exceptions to the decree.</p>

<p>Appeal, No. 225, Jan. T., 1910, by garnishee, from judgment of C. P. No. 3, Phila. Co., Dec. T., 1908, No. 2,468, on verdict for plaintiff in case of Edwin B. Malone and Charles M. Strickler, trading as Watson Malone & Sons, v. Stewart Contracting Company, Defendant, and Louis P. Riedenauer, Garnishee.</p> <p>Attachment execution. Before McMichael, P. J.</p> <p>At the trial it appeared that the Stewart Contracting Company had a contract with the city of Philadelphia for work on certain schoolhouses. Louis P. Riedenauer, garnishee, became surety on certain of these contracts.</p> <p>The Court charged as follows:</p> <p>[Gentlemen of the Jury: In the opinion of the court, there is only one question for you to determine, and that is, how much money was in the hands of Louis P. Riedenauer at the time the attachment went out?] [1] Counsel will give you that date, and then you will determine that question. Riedenauer said here that it was $5,200, and there is testimony that on other occasions he admitted it was $6,000. I do not think that is a matter of vital importance, nor is the matter of interest a matter of vital importance. I think it is a question of fact for you to determine, how much was in his hands at the time the attachment went out.</p> <p>[This is a somewhat novel question, but, I think, subject. to review hereafter, that your verdict should be a verdict for the plaintiff, and then you should determine how much money of the defendant, that is, the Stewart Contracting Company, was in the hands of the garnishee Riedenauer at the time the writ went out.] [2] The court hereafter will control its process so that the garnishee, Mr. Riedenauer, will be protected as surety on the bonds. That cannot be determined now by you. It must be determined in each case as it arises. The view the court takes of this matter, rather for review than for you, is this: That the money which the Stewart Contracting Company placed in Riedenauer’s hands to indemnify him for the bonds will go for that purpose; that each suit will have to be determined for itself, and then if there is any balance remaining in his hands after the determination of those suits, that balance will be applied towards this attachment execution. It is claimed by Mr. Monihan that this is premature, but in the judgment of the court, [if I were to permit a verdict to be taken for defendant, that would deprive the plaintiff here of any opportunity of collecting his debts from Riedenauer, and if Mr. Riedenauer then succeeded in defending against the cases in which he was surety, he would have his money, with no liability to anybody except Stewart;] [3] and then it would go around in a circle. I need not elaborate that any further. The question of fact which you are to determine by your verdict is, how much money was in Riedenauer’s hands belonging to the Stewart Contracting Company at the time the attachment went out, which was January, 1909; and then the process of the court will be controlled hereafter.</p> <p>Verdict for plaintiff for $3,427, and also that there was $6,000 in the hands of the garnishee belonging to the defendant. on January 4, 1909. The garnishee appealed.</p> <p>Errors assigned among others were (1-3) above instructions, quoting them.</p>

Appeal, No. 208, Jan. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., June T., 1904, No. 1365, on verdict for plaintiff in case of Interstate Securities Company v. Third National Bank. Replevin for bonds. Before Brégy, J. The facts are stated in the opinion of the Supreme Court. The defendant presented the following points: 3.

Appeal, No. 148, Jan. T., 1910, by defendant, from judgment of C. P. Del. Co., Dee. T., 1908, No. 282, on verdict for plaintiff in case of George H. Reed v. American Dyewood Company. Trespass to recover damages for personal injuries.

Appeal, No. 211, Jan. T., 1910, by defendants, from judgment of C. P. Chester Co., Aug. T., 1909, No. 35, on verdict for plaintiffs in case of P. H. Corcoran and W. J. Corcoran, trading as Corcoran Bros., v. John E. Huey and C. W. Talbot. Assumpsit for work and labor done. Before Hemp-hill, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,896.36. Defendant appealed.

Appeal, No. 304, Jan. T., 1910, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1909, No. 269, on verdict for plaintiff in case of Samuel Fegley v. Lycoming Rubber Company. Trespass to recover damages for personal' injuries. Before Hart, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,500. Defendant appealed.

Appeal, No. 15, Oct. T., 1911, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1909, No. 1,139, dismissing bill in equity in case of Adelaide Miller Blick and Horace J. Miller v. James M. Cockins et al. Bill in equity to declare a trust ex maleficio. Before Shaper, J. ■ The opinion of the Supreme Court states the.case. Error assigned was decree dismissing the bill.

Appeal, No. 163, Jan. T.,.1910, by defendant, from decree of C: P-. Northampton Co., June T., 1909, No. 2, on bill in equity in case of Bethlehem City Water Company v. Bethlehem Borough et al. Bill in equity to enjoin the defendant from issuing bonds and from laying mains and doing other things for the supply of water in a portion of the borough of Bethlehem formerly constituting the borough of West Bethlehem.

Appeal, No. 164, Jan. T., 1910, by defendant, from decree of C. P. Northampton Co., June T., 1909, No. 3, on bill in equity in case of Leo A. Stem et al. v. Bethlehem Borough. Bill in equity for an injunction to restrain the issue of borough bonds, and to declare void an election to increase borough indebtedness. Before Stewart, J. The only question involved was the validity of an election to increase the indebtedness of the borough of Bethlehem.

Appeal, No. 37, Jan. T., 1911, by plaintiff, from order of C. P. No. 4, Phila. Co., Dee. T., 1909, No. 1,803, making absolute rule to open judgment as to Jacob Sobers in case of A. L. Feighan v. Jacob Sobers and Aaron Sobers, trading as Jacob Sobers & Son. Rule to open judgment.

<p>Appeal, No. 64, Jan. T., 1911, by defendant, from decree of C. P. No. 1, Phila. Co., Sept. Term, 1907, No. 703, on bill in equity in case of Joseph Pentony and Patrick McCabe v. The Pennsylvania Railroad Company.</p> <p>Bill in equity for an injunction to compel the removal of cornices, window sills, ornamental terra cotta and granite bands, foundation walls, etc., on defendant’s building projecting over the plaintiff’s property. Before Ma-gill, J.</p> <p>From the record it appeared that the extension complained of were parts of a permanent structure built up to the division line. It also appeared that on March 28, 1904, the defendant and the plaintiff’s predecessors in title entered into an agreement, which was recorded, by which the defendant agreed to remove on thirty days’ notice all projections of its property extending beyond its line, and that such notice had been given. The court awarded the injunction.</p> <p>Error assigned was decree awarding an injunction.</p>

<p>Appeal, No. 205, Jan. T., 1911, by Victoria Schmitt, from order of C. P. Luzerne Co., Oct. T., 1907, No. 1,047, directing the production of papers in case of D. L. Rhone, Trustee, v. The Keystone Coal Company, Defendant, Victoria Schmitt, the Traders’ Coal Company and The Hillside Coal and Iron Company, Terre-tenants.</p> <p>Scire facias sur mortgage.</p> <p>Petition for an order to compel the production of papers. Before Gobman, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 332, Jan. T., 1910, by George H. Hughes and Caroline H. Sponsler, Executors, and Elm a and Bessie Bishop, from decree of O. C. Luzerne Co., No. 288, of 1896, awarding allowance in Estate of James Hughes, deceased. Petition for allowance.

Appeal, No. 333, Jan. T., 1910, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1907, No. 614, sustaining exceptions to adjudication in case of the Assessment of Lands of Lehigh & Wilkes-Barre Coal Company. Appeal from tax settlement. The facts are stated in the opinion of the Supreme Court. Error assigned was decree sustaining exceptions to adjudication of Fuller, J.

Appeal, No. 201, Oct. T., 1910, by plaintiff, from judgment of C. P. Beaver Co., June T., 1910, No. 192, for defendant on case tried by the court without a jury in suit of Charles Hoopes.v. Charles W. Bradshaw, Prothonotary of Beaver County. Petition for mandamus. Before Holt, P. J. The case was tried by the court without a jury under the Act of April 22, 1874, P. L. 109. The 'Case turned upon the constitutionality of the Act of May 8, 1909, P. L. 475.

Appeal, No. 155, Jan. T., 1910, by plaintiff from judgment of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 2,018, on verdict for defendant in case of The Atlantic Refining Company v. Frederick Sylvester. Assumpsit on written contract to recover price of real estate. The contract sued on is outlined in the opinion of the Supreme Court; after the signature of the defendant appears the word agent,” but the name of his principal is not disclosed therein.

Appeal, No. 252, Jan T., 1910, by defendant, from judgment of C. P. Lehigb Co., Sept. T., 1909, No. 34, on verdict for plaintiff in case of Annie E. Gehringer v. Lehigh County. Trespass .to recover damages for death of plaintiff's husband. Before Trexler, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $5,000. Defendant appealed. Errors assigned were various instructions set forth in the opinion of the Supreme Court.

<p>Negligence — Bridges—Counties—Change of character of travel — Harmless error.</p> <p>1. A county is bound to strengthen and maintain its bridges in order to support automobiles of the ordinary and usual weight of vehicles traveling over the highways in the locality.</p> <p>2. Where a county is sued for a death resulting from the breaking of the floor of a county bridge under an automobile, a verdict against the county will not be reversed because the trial judge inadvertently used the word “unusual” in connection with an automobile when he intended to use the word “usual,” if it is plain from other parts of the charge that the jury could not have been misled by the mistake.</p>

Appeal, No. 227, Jan. T., 1910, by defendant, from judgment of C. P. Chester Co., April T., 1909, No. 73, on verdict for plaintiff in case of William Wayne v. Pennsylvania Railroad Company. Trespass quare clausum fregit on appeal by plaintiff from the award of a jury of view. Before Hemphill, P. J. The case turned upon the instruction of the court as to amount of damages the plaintiff was entitled to for the delay of the railroad in settling with him for his land.

<p>Negligence — Master and servant — Coal company — Contributory negligence — Nonsuit.</p> <p>In an action by an employee of a coal company against his employer to recover damages for personal injuries, a nonsuit is properly entered where it appears that the plaintiff was employed as a brakeman upon mine cars operated in the defendant's mine by an electric motor; that none of the plaintiff's duties required him to ride upon the motor, that notwithstanding this he did undertake to ride upon the top of the motor, lying flat on his face, when it was moving through a portion of the mine with which he Was fairly familiar, and which he knew to be dangerous; and that as a result of his act he was caught between the motor and an irregularity in the roof, and badly hurt.</p>

<p>Wills — Election to take against will — Husband and wife.</p> <p>1. In order that an act may amount to an election to take against a will, two things are essential: first, it must be clear that the person alleged to have elected was aware of the nature and extent of his rights; second, it must be shown that having that knowledge he intended to elect.</p> <p>2. Where a husband who is the executor of his wife, with full knowledge of the facts and circumstances of the estate, files an account in which he claims credit for cash paid for the funeral expenses of his wife, in accordance with a direction in her will that they should be paid out of her estate, and files at the audit a schedule of distribution signed by himself asking the court to distribute the estate in exact accordance with the terms of the will, including the award of a legacy to himself, he cannot thereafter elect to take against the will, inasmuch as his conduct showed a clear intention to accept the provisions made for him in the will.</p>

<p>Election law — Public officers — Poor directors — Constitutional law.</p> <p>1. Where directors of the poor hold their office by virtue of a special act of assembly erecting them into a corporate body, they are not county officers; but, they are public municipal officers; and although their selection is not provided for specifically in the constitution, nevertheless they are quite as much municipal officers in essential characteristics as though specifically there enumerated.</p> <p>2. Under the constitutional amendments of 1909 poor directors are to be voted for on “a municipal election day.” Poor directors elected on a general election day in the even year are without title to office.</p>

<p>Criminal law — Murder—Insanity—Verdict—Twice in jeopardy.</p> <p>1. Where a prisoner has been put on trial for murder, and his insanity at the time of the trial has been set up in defense, and the jury instructed by the trial judge to pass upon both the question of his guilt and the question of his sanity at the time of the trial, and has returned as one verdict (against the objection of the prisoner), that the prisoner is guilty of murder of the first degree, and insane at the time of the trial, and the jury has been discharged, and thereafter the court of its own motion sets aside the verdict and grants a new trial, the prisoner may again be put on trial upon the same indictment.</p> <p>2. In such a case it was the duty of the jury at the first trial to return a verdict that the prisoner was insane at the time of the trial without more. The additional finding that he was guilty of murder was without authority, was a mere nullity, and should not have been accepted by the court. There was no trial at all on the charge against him, and he was no more in jeopardy after the jury had been sworn than he was before he had been called upon to plead.</p> <p>3. Where a court through inadvertence or otherwise accepts a verdict which a jury is powerless to render, it may thereafter, of its own motion, set such a verdict aside.</p>

<p>Appeal, No. 179, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1906, No. 143, on verdict for plaintiff in case of Mary K. Malone v. William T. Pierce.</p> <p>Trespass to recover damages for injury to land by failure to provide sufficient lateral support. Before Evans, J.</p> <p>At the trial it appeared that the defendant, W. T. Pierce, was president of the Elizabeth Land Improvement Company. The company owned land adjoining that of the plaintiff. The corporation planned to erect a new building on its own land. There was evidence that the defendant, acting for his company, agreed with the plaintiff that the corporation in the excavation for the new building should take the dirt out in small sections, and that the new wall should be constructed as these small sections of dirt were taken out, so that the wall of the plaintiff’s building would not be injured. There was evidence that the defendant failed to carry out the agreement, and that the dirt was removed all at once, as a result of which the plaintiff’s wall fell.</p> <p>The defendant presented the following point:</p> <p>If W. T. Pierce, the defendant, acted throughout as the agent of the land company, he cannot be held liable for any damage done to plaintiff’s building, even though he may have taken the supervision of the work of removing the slope of earth out of the hands of the contractor, and even though he may have omitted to take necessary precautions to protect plaintiff’s wall and have excavated in an improper manner, unless there was a willful and malicious intent on his part to injure the plaintiffs, the verdict must be for the defendant. Answer: Refused. [3]</p> <p>Verdict and judgment for plaintiff for $13,505.89. Defendant appealed.</p> <p>Errors assigned were (1) refusal of binding instructions for defendant and (3) refusal of point as above, quoting it.</p>

<p>Appeal, No. 28, Oct. T., 1911, by defendant, from judgment of Superior Ct., April T., 1908, No. 184, affirming judgment of C. P. No. 2, Allegheny Co., Jan. T., 1908, No. 216, for plaintiff on case stated in suit of William H. Ashworth v. The Pittsburg Railways Company.</p> <p>Appeal ’from Superior Court.</p> <p>The case turned upon the constitutionality of the Act of June 7,1907, P. L. 453. See 44 Pa. Superior Ct. 326.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 269, Jan. T., 1910, by plaintiffs, from judgment of C. P. Berks Co., March T., 1907, No. 68, on verdict for plaintiffs in case of Elsie May Westervelt, by her father and next friend, Charles A. Westervelt, and the said Charles A. Westervelt v. Josiah Dives and George S. Pomeroy, trading as Dives, Pomeroy and Stewart.</p> <p>Trespass to recover damages for personal injuries. Before Enlich, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for Elsie May Westervelt for $1,924, and for Charles A. Westervelt, $260. Defendants appealed.</p>

<p>Appeals — Assignments—Verdict—Refusal of continuance — Refusal of new trial — Practice, C. P.</p> <p>1. The verdict of the jury is not properly assignable for error.</p> <p>2. The granting or refusal of a motion for a continuance is a matter within the discretion of the trial judge, and his action will not be overruled on appeal, except for manifest error.</p> <p>3. The trial court does not err in refusing a continuance until the return of a commission issued to a distant city, where the record shows that a rule for the commission was not entered until four days before the case was called for trial, although the case had been at issue for over a year.</p> <p>4. The power of the appellate court to grant a new trial under the Act of May 20, 1891, P. L. 101, is exceptional in character and only to be exercised in very clear cases of wrong.</p> <p>5. An assignment of error to the refusal to grant a new trial will not be considered where the assignment does not set forth the motion, the reasons assigned, or the order of court.</p> <p>Evidence — Depositions—Adopting opponent’s witness.</p> <p>6. Where depositions taken on behalf of plaintiff are offered at the trial, not by the plaintiff, but by the defendant, the latter adopts the witness as his own, and he cannot complain of the action of the court in sustaining objections to certain questions asked the witness on cross-interrogatories propounded by the defendant himself.</p> <p>Promissory notes — Defenses—Evidence.</p> <p>7. In an action upon a promissory note where depositions taken on behalf of the plaintiff, but offered in evidence by the defendant, show that the plaintiff was a bona fide holder for value without notice, and such evidence is not contradicted, it is the duty of the trial judge to give binding instructions for plaintiff. In such a case although the depositions were taken for the plaintiff, the defendants adopted them when they offered them in evidence, and they cannot discredit their own testimony.</p>

<p>Appeals — Assignments of error — Unnecessary assignments.</p> <p>1. Assignments of error should be confined to the substantial and material questions necessary to a proper determination of the issues in controversy. Two assignments should never be made when one will cover the ground.</p> <p>Lateral support — Promise of care — Charge of court.</p> <p>2. In an action to recover damages for injuries to a building resulting from an excavation made by the defendant on an adjoining lot, where it appears that the defendant before he made the excavation promised that he would be particularly careful and guard plaintiff’s wall, such promise is no justification for an instruction to the jury that the law would impose on the defendant the duty of unusual caution and care in making the excavation.</p> <p>3. An owner of land cannot disturb the land of the adjoining owner by withdrawing lateral support, but if he does, the damages resulting will only be for the injury to the land, and not to the building. If the excavator has made a promise to be very careful he has no higher duty to perform than his promise implies, and the law does not impose upon him the duty of unusual caution and care.</p> <p>4. The excavator is not answerable in damages unless the excavating was done in a negligent and careless manner, or unless the plaintiff was misled to his injury by the promise of the defendant to do the work in a particular manner. In either event it is for the jury to say whether under all the facts and circumstances the excavating was done in a negligent and careless manner, and if so, did the wall fall as a result of that negligence.</p> <p>5. If the excavator changes the plan promised without giving ample notice to the adjoining owner, he takes the chances of having a jury say he was negligent under the circumstances.</p>

<p>Appeal, No. 279, Jan. T., 1910, by defendant, from judgment of C. P. Schuylkill Co., Nov. Term, 1906, No. 68, on verdict for plaintiff in case of Martin Reeder v. Lehigh Valley Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Broom, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The trial judge charged in part as follows:</p> <p>The plaintiff also claims that the defendants were negligent and failed to carry out the law in having a live electric wire within reach or touch of passers-by unprotected, under the act, as has been read to you, requiring them to have guards at all dangerous places. It is true, the act of assembly does not specifically mention electric wires, but we call your attention to the fact that when this act of assembly was passed electric appliances were hardly in use in mines, and not being in use as means of transportation, we should say, in gathering the intent of the legislators, that their not being specifically named may be accounted for by that fact. The plaintiff’s position is that they are dangerous in themselves'and liable to come in contact with persons passing to and fro, and that it is such a failure to comply with the spirit, if not the letter of the law, that the defendants should be held responsible for any accident that may occur by reason of their having that wire as stated uncovered, or unprotected.”</p> <p>Of course, we do not mean, when we say uncovered, that it should be insulated by covering all over the wire, because then the trolley could not act; there must be contact between the wire and the trolley wheel, but some guard, such as a trough, an inverted trough made of wood, or other substance, that would make it difficult for any person to come in contact with the wire, especially with a keg of powder, or almost with anything else. We say to you that, if you believe that the defendant violated the law by not having that wire protected, under the evidence and the law as we have given it to you, then the defendant company was negligent. And, if it failed to have a proper, that is, a safe and dry passageway for its workmen to go to and from their work, and by reason of either one or both of these conditions existing, an accident occurred, that then this defendant company would be liable for any damages resulting from an accident occurring as we have stated.] [2]</p> <p>[The plaintiff claims that the defendant violated the mine law in two several respects especially: first, that under the mine law the defendant was bound to furnish a safe and dry passageway for men to go to and from work. They claim that in this instance there was no passageway at all; that the railway, if there had been no cars there, would have been a safe and dry passageway, so far as the passageway itself was concerned, but, inasmuch as it was used for transporting cars loaded and empty, that that is not what is contemplated in the act of assembly; that it does not mean that the defendant had a right to combine a transportation way for coal, and so forth, with a passageway for men, as it would be impossible for men and the coal cars to go through that passageway either way at the same time.</p> <p>They also claim that the gutter which was from two to three feet wide at the lower side of this tunnel was not such a passageway as is contemplated by the act of assembly; that it was not practicable for men to go to or from their work in that drain or gutter; that there was running water there, draining from the whole colliery, naming the number, or at least a number of gangways that were drained, we think there were five. We say to you that under our construction of the law the defendant had no right to say that a drainage way met the requirements of the act which says that they shall furnish a safe and dry passageway to go to or from the work.] [3]</p> <p>[We say further that if this jury finds that the defendant company was negligent in having that live wire there, and by reason of the presence of that wire and its coming in contact with a keg of powder the explosion of that keg of powder was caused, and though that keg of powder was placed there, even intentionally, or inadvertently by James Smith, and that the plaintiff had nothing to do with the touching of that, or had in no way control of it, then the plaintiff would be entitled to a verdict. And we say that whether the plaintiff provided a safe and dry passageway or not, provided the question of the passageway had nothing to do with the plaintiff. The matter of the passageway did have to do with Smith, because Smith did not use the safe and dry passageway. The explosion was occasioned by his using a passageway that was not contemplated to be used by the defendant company. But if this accident occurred, even though James Smith did not use a proper passageway, by reason of an explosion for which James Smith jointly with the defendant company was responsible, and the plaintiff, though he may have used a wrong passageway himself, and you believe that he would have been burned whether he would have been to the one or the other side of this trip, the plaintiff would be entitled to recover, as his presence and his action had nothing to do with the accident, nor anything to do with the result of the accident, if you believe the testimony as it stands here uncontradicted on that point.] [5]</p> <p>Verdict and judgment for plaintiff for $6,500. Defendant appealed.</p> <p>Errors assigned among others were (2, 3, 5) above instructions, quoting them, and (7) refusal of binding instructions for defendant.</p>

<p>Appeal, No. 19, Jan. T., 1911, by defendant, from judgment of C. P. Schuylkill Co., Nov. T., 1906, No. 67, on verdict for plaintiff in case of Paul Pauza v. Lehigh Valley Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Brumm, J. See Reeder v. Lehigh Valley Coal Co., ante, p. 563.</p> <p>The opinion'of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $7,250. Defendant appealed.</p> <p>J</p> <p>Errors assigned were various rulings on evidence and instructions.</p>

<p>Appeal, No. 324, Jan. T., 1910, by defendant, from judgment of C. P. Schuylkill Co., March T., 1909, No. 66, on verdict for plaintiff in case of August Rymowich and his daughter Mary (Minor) v. Schuylkill Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Shay, P. J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p>

<p>Negligence — Master and servant — Dangerous machinery — Act of May 2, 1905, P. L. 352 — Shifting belts — Contributory negligence.</p> <p>1. To do an obviously dangerous thing which one is required to do in order to perform the duties of one’s employment is an assumption of a risk, but not necessarily contributory negligence. If the statutory law requires guards against such a risk, and the employer has failed to comply with such a requirement, the defense of assumption of risk is not available to him, and in the absence of contributory negligence, the plaintiff can recover. But to do an act necessary to the performance of the duties of one’s employment in a way which is obviously dangerous when one can perform the act in another way known to him, which is reasonably safe, is contributory negligence which will bar a recovery, even though the employer may have been negligent in not complying with the requirements of the statute.</p> <p>2. Where an employee attempted to adjust a belt while the shaft on which it worked was running at full speed, and it appears from the evidence that this was a very dangerous action and that there was apparent to the workman another and safer way of doing the work than the method pursued, the employee cannot recover from his employer for injuries sustained in the attempt to adjust the belt although the employer had not provided a belt-shifter, as directed by the Act of May 2,1905, P. L. 352.</p>

<p>Appeal, No. 23, Jan. T., 1911, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1910, No. 325, on verdict for plaintiff in case of Susan R. Frantz v. Citizens Electric Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Hart, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,500.</p>

Appeal, No. 199, Jan. T., 1910, by defendant, from judgment of C. P. Lackawanna Co., Sept. T., 1908, No. 1,173, on verdict for plaintiff in case of George W. Brown v. City of Scranton. Appeal from award of viewers. Before Heydt, P. J., specially presiding.

<p>Appeal, No. 341, Jan. T., 1910, by plaintiffs, from order of C. P. Lackawanna Co., Jan. T., 1908, No. 983, in sustaimng exceptions to report of referee in case of H. G. Dale and Sarah Allis Grant, Admimstrators of M. H. Dale Estate, v. City of Scranton.</p> <p>Exceptions to report of H. R. Yandeusen, Esq., referee.</p> <p>The referee found the facts, inter alia, as follows:</p> <p>A contract was entered into by the city of Scranton with M. H. Dale on July 30, 1902, for the paving and curbing, including other work incidental thereto, of the portions of certain streets under the provisions of an ordinance.</p> <p>The contract between M. H. Dale and the city of Scranton contained the following provisions: “In consideration whereof the City of Scranton agrees so far as collections shall be made from assessments as hereinafter mentioned to pay the said contractor for said work as follows: [Here follows schedule of prices for various items of work as set forth in the proposal of said contractor.] It is further expressly understood and agreed that the fund for the payment of the above contract price is to be derived from assessments on property benefited by the work; and that the city is to be liable to the contractor only for the amounts actually collected from said assessments as the same are collected.”</p> <p>M. H. Dale simultaneously with the execution of said contract executed and delivered to the city of Scranton his bond in one-half the sum of the contract price with approved sureties conditioned upon the faithful performance of the work contracted for and keeping said paving in repair for a period of five years from its completion.</p> <p>Dale, July 28, 1901, commenced work under this contract under the supervision of the Department of Public Works, and all of said work was completed and accepted by the city on January 25,1904.</p> <p>The ordinance provided by secs. 4, 5 and 6 that assessments to pay for the work should be made by the chief engineer against abutting properties according to the foot front rule; and that said assessments should be payable in five equal installments, the first installment to become due and payable thirty days after the commencement of the work and the balance in four equal annual installments thereafter; said installments to bear interest at the rate of six per cent per annum, commencing thirty days after the commencement of the work until paid.</p> <p>The proper officers of the Department of Public Works proceeded to make assessments against the abutting properties in accordance with secs. 4 and 5 of the ordinance, and the schedule of assessments as finally ascertained and determined show a total assessment to pay the cost of the work amounting to $43,791.63.</p> <p>The city treasurer and afterwards the city solicitor of the city of Scranton, proceeded to make collections of said assessments as authorized by the ordinance.</p> <p>The city solicitor on June 28, 1904, filed liens against all properties, the assessments against which for said work had not been paid at that time.</p> <p>The city controller was furnished estimates by the chief engineer showing that the amount of work done under the contract was as follows: Partial estimate, June 30, 1903, $19,554.18, final estimate, January 25, 1904, $23,382.45; that the sum of $855 was charged to the contractor’s account as costs of inspection; and that the total amount due contractor for all work was $42,936.63.</p> <p>Prior to January 25, 1904, payments were made to . M. H. Dale on account of said contract aggregating $9,804.50; that from January 25, 1904, to July 8, 1909, inclusive, $22,111.95 has been paid to M. H. Dale or his representatives and all of the amounts collected by the city from the assessments levied have been so paid over to the contractor, or his representatives.</p> <p>• The liens filed for all of the assessments not yet collected have been duly revived by writs of scire facias and the lien thereof continued against the abutting properties, the last sci. fa. being issued June 10,1909.</p> <p>The referee reported in favor of the plaintiff; but on the subject of the claim of interest reported as follows:</p> <p>' It is contended by the plaintiff that inasmuch as the contractor was to be paid from the assessments levied for the work, and as these assessments bore interest from thirty days after the commencement of the work, the contractor is therefore entitled to interest on the total contract price dating thirty days after the commencement of the work.</p> <p>This position seems untenable. The city agreed to pay the contractor a specific sum of money to be afterwards determined. It provided that this sum should be payable only from a certain fund, to wit, the assessments levied under this same ordinance. If the city by prompt collection of assessments had created a fund sufficient to pay the contractor and had then paid the same over, its obligations thereunder would have been discharged.</p> <p>It seems that if the contractor is to receive all and only such sums as the city collects from these assessments, then there is no basis at all for the present action. The plaintiffs by bringing this suit have virtually abandoned their claim against the assessments as a fund for payment, and say that inasmuch as the city has failed to get money into this fund sufficient to pay the contract price, it should pay them from the general revenues the balance due on the contract, irrespective of any amounts or the interest thereon which the city may hereafter collect from these assessments.</p> <p>Accordingly the question of interest on the assessments is in no way involved in this case, it being a matter exclusively between the city and the assessed property owners. The fact that the amount collected from this source is designated as a fund for the payment of the amount due the contractor cannot alter the other provision of the contract that nothing was due the contractor until the completion of the work, and the legal conclusion to be drawn from the same that the balance due ought to bear interest only from that date.</p> <p>The referee directed judgment to be entered in favor of the plaintiffs in the sum of $16,625.13, with interest from July 8, 1909.</p> <p>The court sustained defendant’s exceptions to the referee’s report and directed judgment to be entered for the defendant. Plaintiffs appealed.</p> <p>Errors assigned were in sustaining defendant’s exceptions and overruling plaintiffs’ exceptions to the report and in directing judgment for the defendant.</p>

<p>Mechanics’ liens — Subcontractor—Notice of intention to file lien — Service on architect outside of county — Act of June 4,1901, P. L. 431 — Person in possession of building.</p> <p>1. Service by a subcontractor of notice of an intention to file a mechanic’s lien upon the architect of the owner outside of the county where the building is situate is not a sufficient service to meet the requirements of sec. 8 of the Act of June 4,1901, P. L. 431.</p> <p>2. On the trial of a scire facias sur mechanic’s lien by a subcontractor where the plaintiff claims that he served notice of intention to file a lien upon the person in possession of the building, all the evidence tending to show the service of the notice, upon whom the service was made, and as to whether the party served was in possession, should be received. Evidence of this character must of necessity be introduced step by step; and it is error to exclude offers bearing on the question as a whole on the theory that it is necessary to first establish the fact that the party served was in actual possession before proof of service and other incidental matters can be admitted in evidence.</p>

<p>Appeal, No. 36, Jan. T., 1911, by plaintiff, from order of C. P. Berks Co., Jan. T., 1908, No. 53, refusing to take off nonsuit in case of Minerva' Hower, by her father and next friend, Frank B. Hower, and the said Frank B. Hower v. United Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Wagner, J.</p> <p>At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Appeal, No. 168, Jan. T., 1910, by defendant, from judgment of C. P. Delaware Co., June Term, 1909, No. 72, on verdict for plaintiff in case of Margaret Miller v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Johnson, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $6,662.50. Defendant appealed.</p>

<p>Negligence — Master and servant — House painter — Safe appliances— Ropes — Tying knot in rope — Duties of foreman.</p> <p>1. In an action by a house painter against his employer to recover damages for personal injuries, a verdict and judgment for the plaintiff cannot be sustained where it appears from the testimony that the plaintiff was directed to paint a small circular roof, having a radius of only about eleven feet, that he selected a rope himself from defendant’s shop; that the rope was in good condition; that he asked the foreman to make a loop in the end of the rope and tie a knot for him, and the foreman did so; that he then took the rope, fastening the loop over the knob at the apex of the roof, and continued to paint around the roof for two or three hours, holding the rope in his left hand to support himself, and that in some unexplained manner the knot came untied, and plaintiff fell from the roof, suffering the injuries of which he complained.</p> <p>2. An employer is not bound to supervise every detail of the labor of his employee, to prevent injury in the ordinary course of the work, from dangers which might be avoided by the use of ordinary care. The workman must use his own judgment as to the manner of handling appliances which are properly provided, and the use of which is obvious.</p>

<p>Church law — Joint ownership of property by two congregations— Trusts and trustees — Corporations.</p> <p>Where the possession and management of the joint property of two religious corporations are by their charters and agreement vested in trustees, who are the directors of the corporations, a committee appointed at a meeting of the members of the two congregations has no authority to erect a building on the joint property in opposition to the will of the trustees.</p>

Appeal, No. 29, Jan. T., 1911, by plaintiffs, from order of C. P. Franklin Co., Dec. T., 1909, No. 140, refusing to take off nonsuit in case of Melvin H. Mouer et al. v. Cumberland Valley Railroad Company. Trespass to recover damages for death of plaintiffs’ father and mother. Before Gillan, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off nonsuit.

<p>Appeal, No. 43, Jan. T., 1911, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1909, No. 198, on verdict for plaintiff in case of Lucy B. Woodruff v. Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Fanning, P. J.</p> <p>At the trial it appeared that plaintiff’s, husband, John W. Woodruff, was killed on the evening of July 11, 1908, in the borough of Laceyville, Wyoming county, while crossing defendant’s track at a public streét called Church street.</p> <p>The facts relating to the accident are set forth in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,340. Defendant appealed.</p>

Appeal, No. 53, Jan. T., 1911, by defendant, from judgment of C. P. Bradford Co.-, Sept. T., 1910, No. 117, on verdict for plaintiffs in case of M. Kaufman and C. Obenauer v. National Lumber Insurance Company. Assumpsit on a policy of fire insurance. Verdict in favor of plaintiffs for $2,309.50.

Appeal, No. 49, Jan. T., 1911, by defendant, from judgment of C. P. Sullivan Co., Feb. T., 1909, No. 50, on verdict for plaintiff in case of Emma C. Hood v. Connell Anthracite Mining Company. Trespass to recover damages for the death of plaintiff’s husband. Before Terry, P.' J. At the trial it appeared that Paul Hood, a certified miner, was killed on March 14, 1908, while working in defendant’s mine. His death was caused by the falling in of the roof of one of the chambers.