Volume 232 — Pennsylvania State Reports

<p>Amendments — Statute of limitations — New parties.</p> <p>1. Where the statute of limitations has run, amendments will not be allowed which introduce a new cause of action or bring in a new party, or change the capacity in which he is sued. If the effect of the amendment is to correct the name under which the right party is sued, it will be allowed; if it is to bring in a new party, it will be refused.</p> <p>2. Where suit was brought against the “Laquin Lumber Company, - a corporation, ” the record cannot be amended after the statute has run, so as to name as defendants a partnership, composed of six persons, trading as the Laquin Lumber Company.</p>

<p>Public officers — Civil Service Commission — Chief examiner — Dismissal — Insubordination—Act of March 5, 1906, P. L. 83 — Findings of fact.</p> <p>1. Under the Act of March 5, 1906, P. L. 83, creating a civil service commission, the chief examiner has no power or authority, except such as may be delegated to him by the commission, and he acts at all times under its supervision and subject to its direction. When he undertakes to ignore its wishes, or to disregard its directions, or to question its authority, he assumes a power never intended to be conferred upon him, and is guilty of such insubordination as will justify the commission in removing him.</p> <p>2. In a mandamus proceeding against a civil service commission to compel the reinstatement of the chief examiner, who had been dismissed for insubordination, the findings of fact of the lower court are conclusive in the absence of manifest error.</p>

<p>Arbitration — Findings of fact as to misconduct of arbitrators — Review.</p> <p>Findings of fact by the court of common pleas that arbitrators were not guilty of alleged misconduct, will not be reversed by the appellate court, if such findings are based upon sufficient testimony, and there is no manifest error.</p>

<p>Appeal, No. 10, Jan. T., 1911, by plaintiff, from order of C. P. No. 2, Phila. Co., Dec. T., 1905, No. 1,346, refusing to take off nonsuit in case of William F. Cronmuller v. The Evening Telegraph, Charles E. Warburton, Founder.</p> <p>Trespass to recover damages for personal injuries. Before Wiltbank, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</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>— It is the duty of drivers of wagons to approach street crossings, recognizing the fact that people may attempt to cross at that street, and it therefore becomes a duty to have the team in such condition as to be able to stop it: Kleinert v. Ice & Coal Co., 6 Pa. Superior Ct. 594; Christian v. Commercial Ice Co., 3 Pa. Superior Ct. 320; Freel v. Wanamaker, 208 Pa. 279; Kauffman v. Nelson, 225 Pa. 174.</p> <p>The best that can be said from appellee’s standpoint is that the inferences to be drawn from the facts are open to debate and not free from doubt. In this event the case is for the jury: Allen v. Warwick Township, 9 Pa. Superior Ct. 507; Kuntz v. R. R. Co., 206 Pa. 162; Mortimer v. Traction Co., 216 Pa. 326; Ely v. Ry. Co., 158 Pa. 233; Glase v. Phila., 169 Pa. 488; McGovern v. Union Traction Co., 192 Pa. 344; Armstrong v. Consolidated Traction Co., 216 Pa. 595; Howard v. B. & O. R. R. Co., 219 Pa. 358.</p> <p>— No negligence on the part of the defendant was shown: Goshorn v. Smith, 92 Pa. 435; Bolton v. Colder, 1 Watts, 360; Brooks v. Thomas, 17 Phila. 45; Henson v. Arthur, 217 Pa. 156.</p> <p>Plaintiff lacked due care and was therefore guilty of contributory negligence: Henson v. Arthur, 217 Pa. 156; Reese v. Clark, 146 Pa. 465; Harris v. Ice Co., 153 Pa. 278; Callahan v. Traction Co., 184 Pa. 425; Carroll v. R. R. Co., 12 W. N. C. 348; McCauley v. Traction Co., 13 Pa. Superior Ct. 354; Walsh v. R. R. Co., 222 Pa. 162.</p>

<p>Appeal, No. 63, Jan. T., 1911, by defendant, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1905, No. 525, on verdict for plaintiff in case of Emma C. Bergdoll v. Ernest Sopp.</p> <p>Assumpsit for balance alleged to be due on a mortgage. Before Davis, J. See 227 Pa. 363;</p> <p>From the record it appeared that on or about September 10, 1903, the son of the defendant borrowed $11,000 from the plaintiff. The latter made the loan on condition that the defendant would execute the mortgage in suit as collateral security to her. Subsequently the son’s indebtedness to the plaintiff was increased, and at the time of his death it amounted to $12,200.27. His estate was insolvent, and the plaintiff received a dividend of sixteen and eleven twenty-firsts per cent upon her whole claim of $12,200.27, amounting to $2,015.95. After receiving the dividend she brought suit upon the mortgage, claiming that it was given to her as security for the whole indebtedness, and that she had the right to apply the $2,015.95 to the unsecured part of the debt due to her and to recover the whole amount of the mortgage. The defendant claimed that it was collateral for only $8,000, and that he was entitled to have the dividend credited pro rata upon that part of the indebtedness which his mortgage, secured. He paid the difference, with interest, costs and counsel fees, and the case proceeded to trial for the determination of a single issue, viz.: Had the plaintiff the right to apply the dividend paid her to the unsecured part of her claim? The trial judge instructed the jury to render a verdict for the plaintiff. The court in banc subsequently entered judgment for the defendant non obstante veredicto; which judgment, on appeal, was reversed by the Supreme Court with a venire facias de novo. At the next trial the case was submitted to the jury and a verdict was rendered for the plaintiff, for $1,668.91, and judgment thereon. The defendant appealed.</p> <p>Verdict and judgment for plaintiff for $1,668.91. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p> <p>Where it is sought to reform a bond in accordance with a contemporaneous parol agreement, such parol agreement must be made out by “clear, precise and indubitable proof:” Spencer v. Colt, 89 Pa. 314; Hickernell’s App., 90 Pa. 328; Stafford v. Giles, 135 Pa. 411; Thorne, McFarlane & Co. v. Warfflein, 100 Pa. 519; Schettiger v. Hopple, 3 Grant (Pa.), 54; Penna. R. R. Co. v. Shay, 82 Pa. 198; Phillips v. Meily, 106 Pa. 536; Jackson v. Payne, 114 Pa. 67; Sutch’s Est., 201 Pa. 305.</p>

<p>Wills — Construction—Children—Grandchildren—Trusts.</p> <p>1. Testatrix provided that her property should be held in trust for her seven children so that each should receive “an equal seventh part” of the income, without liability for debts, during his or her life; that upon the decease of any of her children leaving children or issue they were to take the proportionate share of the parent “in fee simple;” that upon the decease of any of her children without leaving children or issue, the income of a child so dying was to be divided equally among the surviving children of the testatrix, the issue of any of her seven children who might then be dead to take between them the part which their parent would have taken if living, adding, “such accruing shares to be regarded in all respects as parts of their original shares, both as to the enjoyment and transmissions thereof.” Held, that the clause last quoted referred to the shares originally taken by the children, and not the shares coming to grandchildren through the death of childless uncles and aunts.</p> <p>2. Such a construction is not defeated by a provision that each of the said children should have the power to limit and appoint by will the income coming to him or her so that it would be enjoyed for life by a surviving widow or husband; and that if any of said children should leave issue, such child might limit and appoint how his or her “child, children or issue,” should take “whether in fee simple or for any other estate upon trusts or otherwise.”</p> <p>3. Words employed by the testatrix in such case in providing for the disposition of her property after the death of any of her children without leaving any child him or her surviving, viz.: “to receive and pay over the rents and income of such share or shares” to beneficiaries indicated, in the absence .of a limitation over, or any express or implied restriction upon the payment of the corpus, carry with them the right to the principal absolutely.</p> <p>4. Where an instrument suggests it, the law encourages a construction favorable to the unfettering of an estate rather than one which leads to a prolonged restraint upon its free alienability.</p>

<p>Appeal, No. 382, Jan. T., 1910, by defendant, from judgment of C. P. No. 5, Phila. Co., March T., 1908, No. 818, entered for plaintiff non obstante verdicto in case of William J. Faux v. Alfred E. Fitter.</p> <p>Assumpsit on promissory notes. Before Ralston, J.</p> <p>At the trial the plaintiff produced the notes. The defendant, the maker, testified that he had invited the plaintiff, the payee, to join him in a stock speculation; that the plaintiff had agreed, and had given him $3,000 for that purpose, in three different payments; that when the first money was paid the plaintiff “had his private secretary write out a note for one thousand dollars .... which I signed.” His testimony then proceeded as follows: “Q. What, if anything, was said by you or him as to that note at the time it was drawn up and signed? A. Well, he persuaded me to sign it because he thought it would be a good thing for him to have in case anything occurred to either of us — he should die or I should die — It would be sort of a memo for his estate to have in case of the death of either. Q. What was said about the note at the time it was signed? A. At the time it was signed I think I expected to close up the account before three months, I don’t think anything was said about it.” Concerning the second and third notes the witness testified, “A. Well, he just asked me to sign this note in each case. There was a note to sign in each case. Q. What agreement, if any, was there between you two men at the time you signéd that note, as to what that note should be? A. Why, it was a verbal agreement that the note should be considered as a memorandum of the loan of the money. He said that it was understood between them that the notes were mere memoranda of the transaction, a sort of receipt for the money.” Further, “Q. What, if anything, was said about your paying the note back, paying the amount of the note? A. Nothing at all.”'</p> <p>In describing the stock transactions the witness said, “I would put up a certain sum of money and the broker would loan the balance and charge interest on it and buy the stock and he held the stock certificates as security for the money he advanced.” Referring to the stock thus purchased, he said, “I didn’t pay for them, but I bought them outright.”</p> <p>The plaintiff denied absolutely that he had any interest in the defendant’s stock speculations or that there were any outside conditions concerning the payment of the notes. He testified that the notes simply represented three separate loans to the defendant for their face value, none of which had been repaid.</p> <p>The verdict was for the defendant; but the court below entered judgment n. o. v. in favor of the plaintiff for $4,587, representing the principal of notes with interest.</p> <p>Errors assigned were (1, 2, 5) refusing binding instructions for the defendant; setting aside verdict in his favor; entering judgnent n. o. v. for plaintiff; (3, 4) “withdrawing from the consideration of the jury the question as to whether the transaction of which the notes were a part was a wagering or gambling transaction,” and refusal to charge that if the money was loaned to the plaintiff with the understanding that it was to be used to speculate in stocks on a margin without any intention to buy and pay for them outright, the plaintiff could not recover.</p> <p>cited: Keller v. Cohen, 224 Pa. 434; Adams v. Ashman, 203 Pa. 536; Conmey v. MacFarlane, 97 Pa. 361; Grubb v. Cottrell, 62 Pa. 23.</p> <p>cited: Hill v. Gaw, 4 Pa. 493; Butler v. Keller, 19 Pa. Superior Ct. 472; Fuller v. Law, 207 Pa. 101.</p>

<p>Constitutional law■ — Judges—Election law — Constitution of Pennsylvania, art. IV, sec. 8, art. V, sec. IS — Constitutional amendment of 1909 —Schedule of constitutional amendment of 1909 — Acts of April SO, 1874, P. L. 118, and March 2,1911 — “ Vacancy.”</p> <p>1. Under art. V, sec. 15, of the constitution, the Act of April 30, 1874, P. L. 118, and the constitutional amendment of 1909 with its schedule, an election cannot be held in November, 1911, to fill the office of a judge of the court of common pleas or orphans’ court whose term expires on January 1, 1913.</p> <p>2. The second section of the act of March 2, 1911, which provides that “all judges of the courts of the several Judicial Districts, Associate Judges and County officers holding office at the date of the approval of said amendments, whose commissions expire on the first Monday of January in an odd-numbered year, shall continue to hold their offices until the first Monday of January in the following even-numbered year,” is unconstitutional, inasmuch as it is an attempt to extend the constitutional terms of judges beyond the limit fixed by the constitution.</p> <p>3. Where a judicial term ends on the first Monday of January, 1913, a vacancy will exist which must be filled by the governor under art. IV, sec. 8, of the constitution.</p> <p>4. The suggestion that judges whose terms expire in odd-numbered years shall have successors elected at the municipal election which will occur fourteen months before the expiration of their respective terms is open to the constitutional objection that it will lead to a classification which would destroy uniformity in the election of the common pleas judges by dividing such judges into two groups, the members of one to be elected fourteen months, and of the other two months, before the expiration of the terms of their predecessors. Such a classification is not a natural one, nor is it one made imperatively necessary by existing conditions.</p> <p>5. The word “vacancy” as applied to an office has no technical meaning. An existing office without an incumbent is vacant. There is no basis for the distinction that it applies only to an office vacated by death, resignation or otherwise. It may be applied to an office when it is first created, and has been filled by no incumbent; and a vacancy may exist by reason of the expiration of the term.</p> <p>Mr. Chief Justice Fell and Mr. Justice Brown dissent.</p>

<p>Appeal, No. 246, Jan. T., 1911, by plaintiffs, from order of C. P. No. 1, Phila. Co., Dec. T., 1909, No. 5,073, in entering judgment for respondents in case of Commonwealth ex rel. Jerome H. Sheip et al. v. Asa W. Vandegrift et al.</p> <p>Quo warranto. Demurrers to respondents’ answers to information.</p> <p>Magill, J., found the facts to be as follows:</p> <p>This matter is before the court on demurrer by relators to answers filed by respondents to an information for quo warranto. The answers in question are responsive and under oath, and by the demurrers filed the statements contained therein are admitted to be true. Upon the pleadings it appears that an annual meeting of the stockholders of the Philadelphia Veneer & Lumber Company, Incorporated, was held January 20,1910, at the time and place prescribed by the by-laws, which meeting was attended by eleven stockholders owning 1,887 shares of a total issue of 2,081 shares. Four of the relators, Jerome H. Sheip, S. S. Roller, Stanley S. Sheip and Charles H. Runkel, were present at the meeting.</p> <p>Article X, sec. 3, of the by-laws of the corporation provides, “The holders of a majority of the stock issued shall constitute a quorum for the transaction of business at any regular or special meeting. If no quorum be present at any meeting so called, a less number may meet and adjourn from time to time, until a quorum be present.” A quorum was present at the meeting which was duly organized, and at which Asa W. Vandegrift, one of the respondents, was elected chairman. As shown by the answer, after the election of the chairman, Stanley S. Sheip, one of the relators, requested that a new election for chairman of the meeting be had by stock vote. He was informed by the chairman that his request was too late as the meeting had already elected its chairman, and thereupon, without appealing from the decision of the chair, or taking any other method of questioning the ruling, said Stanley S. Sheip, Jerome H. Sheip, S. S. Roller and Charles H. Runkel, the relators, withdrew from the meeting, having previously notified the chairman that unless they were permitted to have a new election by stock vote on the question of chairman, they would withdraw for the purpose of making no quorum, and prevent the further transaction of business. After the relators above named had withdrawn from the meeting those remaining proceeded to an election, and respondents were elected to the several offices as set forth in the information and answer, the chairman having first appointed a judge and two tellers to conduct the election, who were duly sworn, etc., at which election, as shown by the answer, 992 votes were cast for each of the candidates, being a majority of the total number of shares represented at the meeting at the time of organization, but less than a majority of the whole number of shares issued. It is evident that the difficulty arose through the efforts of two factions of the stockholders to secure control of the offices of the corporation, and the relators, Jerome H; Sheip, S. S. Roller, Stanley S. Sheip and Charles H. Runkel, clearly appear to have withdrawn from the meeting for the sole purpose of preventing an election, ,and having done so, they subsequently called a special meeting of the stockholders on February 11, 1910, for the purpose of electing officers, and at an election held on that date by themselves, and acting through proxies for other stockholders, elected themselves as officers of the corporation. This meeting was called by them, or some of them, upon the assumption that they, at the time of the call for the special meeting, continued to be directors of the corporation by virtue of their election in the previous year, and that they held over as such directors by reason of the alleged fact that the directors elected at the meeting of January 20, 1910, were not duly and properly elected.</p> <p>Error assigned was in entering judgment for respondents.</p> <p>— If a majority withdraw so as to leave no quorum the minority have no power to act: Brown v. District of Columbia, 127 U. S. 579 (8 Sup. Ct. Repr. 1314); Dingwall v. Common Council of Detroit, 82 Mich. 568 (46 N. W. Repr. 938); State v. Porter, 113 Indiana, 79 (14 N. E. Repr. 883); Lockwood v. Bank, 9 R. I. 308; Damon v. Granby, 19 Mass. 345.</p> <p>The cases cited by respondents are those in which a quorum was present, though not voting, whereas here admittedly no quorum was present; or were cases where the question was whether or not a majority could elect at a different place than that provided by law.'</p> <p>— The appellants should have acted at the meeting of January 20,1910, which was the legal meeting of the corporation. Preliminaries of organizing this meeting were proper and legal: Landers v. Frank St. M. E. Church, 114 N. Y. 626 (21 N. E. Repr. 420); Stebbins v. Merritt, 64 Mass. 27.</p> <p>The minority have a right to insist that the stockholders meet and elect directors on the day fixed by the by-laws: Oldknow v. Wainright, 2 Burrows, 1017; Rex v. Miller, 6 T. R. 268; State v. Chute, 34 Minn. 135; Forsyth v. Brown, 13 Pa. C. C. Rep. 576; s. c. 33 W. N. C. 72.</p> <p>The majority cannot arbitrarily withdraw after organization: Com. v. Patterson, 158 Pa. 476; Haskell v. Read, 68 Neb. 107 (96 N. W. Repr. 1007); Baird v. Bank of Washington, 11 S. & R. 411; Juker v. Com. ex rel., 20 Pa. 484.</p>

<p>Appeal, No. 294, Jan. T., 1910, by plaintiff, from decree of C. P. No. 5, Phila. Co., March Term, 1908, No. 4,962, dismissing bill in equity in case of Standard Soap & Oil Company v. Printz Degreasing Company.</p> <p>Bill in equity for specific performance and for an injunction.</p> <p>Errors assigned were (1-38) all to dismissal of exceptions relating to findings of fact and conclusions of law, but none to the final decree dismissing the bill.</p>

<p>Evidence — Books—Time book of employer.</p> <p>1. A time book of an employer is not admissible in evidence to show the hours that an employee had worked on a'particular day, where it appears that the book was made from time slips, and the time slips are not produced or accounted for, and the witnesses who made the entries are not produced.</p> <p>Negligence — Damages—Earning capacity — Charge of court.</p> <p>2. In an accident case where it appears by the plaintiff’s own testimony, that although unable to perform the same kind of physical labor that he did before the accident, he occupied thereafter a better position and was earning a higher salary, it is reversible error for the court to charge as follows: “Inasmuch as it is testified that this is a permanent injury, and it is not contradicted, you can consider then what would be the loss of his earning capacity, whether it is totally destroyed or partially destroyed. ... It is a very difficult question for a juror to decide and it is in the nature of a guess.”</p> <p>3. Any allowance for future losses due to an impairment of earning capacity must be capitalized and brought down to its present worth. Jurors should never be told that any of their deliberations are in the nature of a guess, for-such a remark is practically a suggestion to them that matters submitted for their determination can be decided without mature judgment and deliberation.</p> <p>4. Where it appears that a person has suffered physical injuries which impaired his power to do the kind of work which he performed before the accident, but it also appears that after the accident he performed another kind of work at higher wages, the latter fact will not prevent the jury awarding him damages for permanent injuries, but it is a fact that the jury may consider on the question as to the extent to which his earning power had been affected.</p> <p>Negligence — Railroads—Passengers—Duty of care — Alighting from train.</p> <p>5. A railroad company is bound to exercise the “strictest vigilance” in receiving and conveying a passenger to Ms destination, and it is its duty to stop its trains at stations a reasonable length of time to permit passengers to alight.</p> <p>6. If a passenger is actually seen in the act of alighting by the men in charge of the train, or if under the circumstances of the particular case he should have been seen, then there is the duty to allow him time to alight completely before starting the train, and a failure so to do would be negligence.</p> <p>Negligence — Charge of court.</p> <p>7. In an accident case the trial judge should give careful instructions on the testimony, and in so doing he should deal with the number of witnesses on each side, their respective interests, opportumties for observation, and such other matters as affects the weight of the evidence.</p>

<p>Husband and wife — Actions—Promissory note.</p> <p>1. A wife cannot bring suit upon a promissory note against her husband during coverture.</p> <p>2. In an action by the administrator of a married woman against the husband of the deceased on a promissory note, it is proper to exclude the period of the wife’s coverture in ascertaining the time at which the presumption of payment upon the note arose.</p>

Appeals, Nos. 44 and 32, Jan. T., 1911, by plaintiff and defendant, respectively, from judgment of C. P. Monroe Co., Dee. T., 1907, No. 22 on verdict for plaintiff in case of The Delaware, Lackawanna & Western Railroad Company v. The Tobyhanna Company, Limited. Ejectment for land in Coolbaugh township. Before Staples, P. J. This appeal is from a retrial after a reversal of a former judgment in favor of the plaintiff. See 228 Pa. 487.

Appeal, No. 77, Jan. T., 1911, by Charles J. Weiss, Trustee in Bankruptcy, from decree of O. C. Phila. Co., April T., 1904, No, 193, dismissing exceptions to adjudication in Estate of C. A. Adolph Meyer, deceased. Exceptions to adjudication.

Appeal, No. 79, Jan. T., 1911, by Ernest H. Beihl and Clara L. Beihl, his wife, from decree of O. C. Phila. Co., April T., 1904, No. 193, sustaining exception to adjudication in Estate of C. A. Adolph Meyer, deceased. Exceptions to adjudication. From the record it appeared that Clara L. Beihl and her husband, Ernest H. Beihl, were tenants by entireties under the will of testator.

<p>Husband and'wife — Estate by entireties — Bankruptcy of a husband— Equity — Injunction.</p> <p>A trustee in bankruptcy of a husband has no standing to maintain a bill in equity to restrain the husband and his wife from alienating property which they hold as tenants by entireties.</p>

Appeal, No. 360, Jan. T., 1910, by Oliver D. Wood, et al., from decree of O. C. Phila. Co., Jan. T., 1910, No. 377, dismissing exceptions to adjudication in Estate of Elizabeth Ivins Stirk, deceased. Exceptions to adjudication.

<p>Corporations — Officers—Compensation—Salaries—Ratification.</p> <p>1. A majority of the stockholders of a corporation, who are also the directors, may at a regular stockholders’ meeting ratify and confirm against the vote and protest of a minority stockholder a resolution of a majority of the board of directors increasing the salaries of two of such directors as officers of the company where such salaries are found by the court to be fair and reasonable compensation for the services rendered.</p> <p>2. In such a case the act of the directors in increasing the salary was not void but only voidable, and may be ratified at a stockholders’ meeting.</p> <p>3. When directors vote at a board meeting they act as agents of the corporation occupying a fiduciary relation, but when the same persons vote as stockholders at a stockholders’ meeting, they hold no trust relation to the company which would deprive them of the right to vote as their interests dictate. They may therefore in their independent position as stockholders ratify their own voidable acts as directors, if such ratification involves no fraud.</p>

<p>Mechanic's lien — Stipulation against liens — Change of ownership during construction — Subcontractor.</p> <p>A subcontractor on a building operation is bound by a stipulation against liens contained in the original contract between the owner and the .contractor, and he is not relieved by the fact that the property was conveyed to another party during the construction of the building, and before the contract between himself and the contractor was made; nor is he relieved by the fact that the plans and specifications submitted to him showed the name of thé new owner, inasmuch as the contract was indexed in the prothonotary’s office in the name of the contractor with whom he dealt.</p>

Appeal, No. 81, Jan. T., 1911, by plaintiff, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1907, No. 4,521, on verdict for defendant in case of Joseph Bradney v. The Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Ralston, J. At the trial it appeared that the plaintiff was injured on December 5, 1907, about 6.20 p. m. while attempting to get on board one of the defendant’s cars.

<p>Appeal, No. 5, Jan. T., 1911, by defendant, from order of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 1,881, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Anna W. S. Keator, Executrix of the Last Will and Testament of John F. Keator, deceased, v. Clayton M. Hunsieker.</p> <p>Assumpsit on a promissory note.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 129, Jan. T., 1910, by plaintiff, from order of C. P. Luzerne Co., Dec. T., 1903, No. 207, refusing to take off nonsuit in case of Elizabeth Wentz v. R. J. Blair, Ancillary Administrator of the estate of W. H. Courtright, deceased, and intervenors: Mary A. Courtright et al. Assumpsit for moneys had and received. Before Hall, P. J., specially presiding. The opinion of the Supreme Court states the case. At the trial the court entered a compulsory nonsuit.

<p>,■Equity — Equity pleading — Answer—Demurrer—Appeals—Interlocutory order.</p> <p>1. Under equity rule 31 a defendant is permitted to answer to a part of a bill and demur to a part, but lie may not answer and demur also to the whole bill or to the same part of it.</p> <p>2. An order overruling a demurrer is interlocutory and no appeal lies from it.</p>

Appeal, No. 248, Jan. T., 1910, by plaintiff, from judgment of C. P. Luzerne Co., May T., 1907, No. 401, on verdict for defendant in case of Wm. Nowlis v. Joseph Hurwitz.. Assumpsit for salary. Before Garman, J. The opinion of the Supreme Court states the case. Verdict and judgment for defendant. Plaintiff appealed. Error assigned was the instruction referred to in the opinion of the Supreme Court.

Appeal, No. 276, Jan. T., 1910, by defendants, from decree of C. P. Luzerne Co., Oct. T., 1908, No. 22, on bill in equity in case of North Mountain Water Supply Company v. E. R. Troxell et al. Bill in equity for an injunction. The facts are stated in the Opinion of the Supreme Court. Error assigned among others was the final decree of the court, quoted in the opinion of the Supreme Court.

Appeal, No. 1, Jan. T., 1911, by defendant,, from judgment of C. P. Luzerne Co., March Term, 1904, No. 179, on verdict for plaintiff in case of Harry W. Pierce v. Lehigh Valley Coal Company. Trespass to recover damages for injuries to land. Before Ferris, J. The facts appear in the opinion of the Supreme Court and in the report of Pierce, Appellant, v. Lehigh Valley Coal Company, 40 Pa. Superior Ct. 566. The defendant submitted the following point: 1.

Appeal, No. 375, Jan. T., 1910, by plaintiff, from judgment of C. P. Luzerne Co., March Term, 1904, No. 179, setting aside an item of damage in a verdict for plaintiff in case of Harry W. Pierce v. Lehigh Valley Coal Company. Trespass to recover damages for injuries to land. Before Ferris, J. The facts appear in Pierce v. Lehigh Valley Coal Company, Appellant, ante, p. 165.

Appeal, No. 292, Jan. T., 1910, by defendant, from judgment of C. P. Huntingdon County, Dec. T., 1905, No. 172, on verdict for plaintiffs in case of J. F. Trexler and J. L. Trexler v. H. P. Reynolds. Issue framed to determine set-off to claim on judgment bond. Before Woods, P. J. The facts appear in the opinion of the Supreme Court, and in the report of the same case in 43 Pa. Superior Ct. 168.

<p>Appeal, No. 314, Jan. T., 1910, by Bertha A. Ford, Executrix of Estate of Charles K. Ford, deceased, from decree of O. C. Blair Co., March T., 1910, No. 253, making distribution in Estate of Albert Ford, deceased.</p> <p>Exceptions to report of M. M. Morrow, Esq., auditor.</p> <p>Albert Ford died on October 22,1907, intestate, leaving to survive him a widow, Mary E. Ford, and three children, Dr. Frank A. Ford, Charles K. Ford and Margaret C. Myers. Letters of administration were granted to his widow, Mary E. Ford. Charles K. Ford died on August 23, 1908, leaving to survive him a widow, Bertha A. Ford, to whom by will he left his entire estate. The auditor appointed to make distribution of the estate of Albert Ford found that the balance for distribution belonged to the widow Mary E. Ford by reason of the transactions stated in the opinion of the Supreme Court. Exceptions filed to the report on behalf of Bertha A. Ford, executrix of Charles K. Ford, deceased, were dismissed and the report confirmed.</p> <p>Errors assigned were (1) in awarding the entire estate to Mary E. Ford, (2) in allowing Mary E. Ford’s claim to one-half the proceeds of the Westmoreland County farm, (3) in not making a surcharge of $1,016.12, being proceeds of two notes paid to the administratrix since the death of Albert Ford and not accounted for.</p>

<p>Real estate — Quieting title — Petition—Necessary averments — Act of June 10,1893, P. L. 4-15 — Ejectment.</p> <p>A petition for an issue to quiet title filed under the provisions of the Act of June 10, 1893, P. L. 415, must be dismissed where upon a hearing it appears from the evidence of the petitioners that one of the necessary jurisdictional averments in the petition is not true.</p>

<p>Appeal, No. 56, Jan. T., 1910, by plaintiff, from decree of C. P. Blair Co., March T., 1909, No. 446, making absolute rule to quash writ of quo warranto in case of Commonwealth ex rel. M. Hampton Todd, Attorney General, v. The Pennsylvania Railroad Company.</p> <p>Quo warranto. Before Baldrige, P. J.</p> <p>The attorney general filed the following suggestion for a writ of quo warranto:</p> <p>“Be it remembered that on this 15th day of May, 1909, comes M. Hampton Todd, the Attorney General of the Commonwealth of Pennsylvania, and files this suggestion, and gives the court to understand and be informed:</p> <p>“1. That the Tipton Water Company, a corporation created and existing under the laws of the State of Pennsylvania, was chartered on the 12th day of February, 1903, for the purpose of ‘ Supplying water to the public in Antis Township, Blair County, Pennsylvania, and to such persons, partnerships and corporations residing or located therein, as may desire the same.’</p> <p>“2. That the Pennsylvania Railroad Company, a corporation created and existing under the laws of the State of Pennsylvania, has constructed an underground line o| sixteen inch pipe leading westwardly, from a point in said township of Antis, from and out of said township, through the borough of Bellwood and the township of Logan to its shops in said township of Logan, and has connected this line of pipe, at a point in Antis township, with a similar line of pipe constructed by the Tipton Water Company leading from its impounding dam on Tipton Run in said township.</p> <p>“3. That the said Tipton Water Company is now, and has been for some time past, delivering to the Pennsylvania Railroad Company through the lines of pipe above mentioned about 1,500,000 gallons of water daily for consumption in its shops in Logan township, and that said water is propelled from the point of connection in Antis township to the said shops, which are higher in elevation by about 100 feet, by the pressure generated at Tipton station from the elevation of the impounding dam above that point.</p> <p>“ 4. That the Pennsylvania Railroad Company has constructed an underground line of twelve-inch pipe bearing eastwardly from a point in said township of Antis from and out of said township, into Snyder township and Tyrone borough and has connected this line of pipe, at a point in Antis township, with a similar line of pipe constructed by the Tipton Water Company and leading from its impounding dam in said township.</p> <p>“ 5. That the said Tipton Water Company is now and has been for some time past delivering to the Pennsylvania Railroad Company through the lines of pipe last above mentioned large quantities of water daily, which water is transported by gravity out of Antis township into the township of Snyder and borough of Tyrone, which water is used exclusively by said railroad company out of the township of Antis.</p> <p>“6. That prior to the taking of the water as aforesaid by the Pennsylvania Railroad Company for use out of the township of Antis the waters of Tipton Run, and its tributaries, flowed into the Juniata River near Tipton in undiminished volume at all times and were available to the riparian owners along said streams for all lawful purposes to which the same might be applied, but since the taking and use above stated all of the waters of said Tip-ton Run have been taken, leaving the channel of said stream destitute of water and dry, thus diminishing the volume and power of water in the Little Juniata River and depriving the riparian owners along Tipton Run and the Little Juniata River of its use.</p> <p>“ All of which acts, matters and things in the premises have been and continue to be to the great loss and damage of the public, and are in excess of the legitimate power of the Pennsylvania Railroad Company, and in the doing of said acts, matters and things the said Pennsylvania Railroad Company has willfully abused its corporate powers and functions.</p> <p>“Wherefore, the said Commonwealth prays the consideration of the court here in the premises and that a quo warranto be issued against the said Pennsylvania Railroad Company to show cause by what warrant or authority it claims to do the acts complained of and takes the waters of Tipton Run to be consumed by the said railroad company outside of the township of Antis.</p> <p>“ And that the court will, after investigation of the several matters herein set forth, if it shall appear that the said acts complained of were and are in excess of the legitimate powers of the said corporation, and in abuse of its corporate powers and functions, decree the same to be so, and that judgment be entered that it be excluded or ousted from the performance of the said acts, to wit:</p> <p>“ Taking the waters of Tipton Run to be by it consumed and used out of the township of Antis.”</p> <p>The defendant moved to quash the writ for the reason that the facts set forth in the suggestion were not sufficient in law to entitle the commonwealth to the writ.</p> <p>The court made absolute the rule to quash the writ. Commonwealth appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Negligence — Street railways — Vacating judgments — Fraud—New evidence.</p> <p>A rule to show cause why a judgment entered on the verdict of a jury in an action for personal injuries should not be set aside for the reason that, it had been procured by fraud, perjury and deceit, is properly discharged where the depositions taken under the rule reveal the fact that the defendant’s own witnesses entertained opinions inconsistent with its contention, and depositions taken on the plaintiff’s part contradict the averments of defendant’s petition, and the alleged new evidence offered is practically the same that was submitted to the jury.</p>

<p>Appeal, No. 100, Jan. T., 1911, by Wm. T. S. Hoyt, Dora Hafer et al., devisees, etc., from decree of O. C. Clearfield Co., No. 3,250, referring report back to auditor, in Estate of Milo Hoyt, deceased.</p> <p>Exceptions to report of Hazard A. Murray, Esq., auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court sustained certain of the exceptions and referred the report back to the auditor to make .distribution in accordance with the opinion.</p> <p>Error assigned was decree of the court.</p>

<p>Taxation — Unseated lands — Appeals—Revision of valuation — Intermediate years — County commissioners — Courts—Statutes—Construction —Constitutional law — Due process of law — Acts of April 8, 1804, P■ P. 517, April 15,1884, P• P- 509, May 15,1841, P. L. 898, July 87,1848, P. P. 441, April 19,1889, P. P. 87, and May 8,1909, P. L. 491.</p> <p>1. Our whole system of taxation is purely statutory and neither the county commissioners nor the courts have any power in the revision of valuation, or in the levy and assessment of taxes, except such as has been conferred by statute.</p> <p>2. Where appeals are taken under the acts of 1889 and June 26, 1901, P. L. 601, the courts sit in review for the purpose of making such order or decree as may seem equitable under the facts, but these acts do not confer upon the courts the power to treat the controversy on the broad principles of equity without reference to the requirements of the tax laws.</p> <p>3. By the provisions of the acts of 1804 and 1834, the legislature intended that the valuation of the triennial year should remain undisturbed for a period of three years except where buildings or other improvements had been destroyed after the valuation was adjusted; or “where coal, ore or other minerals .... have been mined out subsequently to such triennial assessment,” as provided by the Act of May 8, 1909, P. L. 491. It follows from the fact that the legislature has expressly provided what abatements can be made in the valuation of real estate that no other allowances can be legally made.</p> <p>4. Neither the county commissioners in the first instance, nor the court on appeal, have the power to reduce the assessed valuation of unseated lands in the intermediate years between triennial assessments by allowance for timber removed.</p> <p>5. The Pennsylvania system of taxation is consistent with natural justice, and the enforcement of the tax laws of this state does not deprive a taxpayer of his property without due process of law.</p>

<p>Negligence — Townships—Evidence—Roads, streets and highways— Duty to maintain guard rails — Condition two years after accident.</p> <p>1. The law does not impose on. township supervisors the duty of maintaining a guard rail at every point where a gully starts at the roadside, or where some natural depression, or small declivity on adjacent land, may happen to be. It is only when these gullies, or declivities, become dangerous on account of their proximity to thé highway that the duty of maintaining guard rails arises.</p> <p>2. In an action to recover damages for nersonal injuries where the negligence alleged is that the defendant township failed to erect and maintain a guard rail at an alleged dangerous place in a highway it is necessary that evidence should be introduced to show the exact condition on the ground in order that it may be determined whether the situation was so dangerous as to make it the duty of the township to maintain a guard rail as a protection to the traveling public.</p> <p>3. In such a case evidence tending to show the condition at the point alleged to be dangerous some two years after the accident is inadmissible as too remote.</p> <p>Practice, C. P. — Trial—Points for charge.</p> <p>4. When points are submitted asking for definite instructions they should be framed so as to make the law applicable to the particular facts of the case being tried.</p>

Appeal, No. 110, Jan. T., 1911, by defendants, from judgment of C. P. No. 1, Phila. Co., March T., 1909, No. 893, on verdict for plaintiff in case of Frank P. Dougherty v. Malcolm Briggs, Jr., and the Tradesmen’s Trust Company. Assumpsit for money had and received. Before Kinsey, J. The facts appear in Dougherty v. Briggs, 231 Pa. 68.

<p>Appeal, No. 11, May T., 1911, by Joseph M. Huston, defendant, from judgment of Superior Court, March T., 1911, No. 16, affirming judgment of Court of Quarter Sessions of Dauphin County, Sept. Sessions, 1907, No. 240, in case of Commonwealth v. John H. Sanderson, Joseph M. Huston, James M. Shumaker, William P. Snyder and William L. Mathues.</p> <p>Appeal by defendant from a judgment and sentence upon an indictment charging conspiracy to defraud the state of Pennsylvania.</p> <p>The facts and the report of this case will be found in 46 Pa. Superior Ct. 172.</p>

<p>Appeal, No. 167, Jan. T., 1910, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1908, No. 1,251, on verdict for plaintiff in case of Annie E. Primrose v. Casualty Company of America.</p> <p>Assumpsit on an accident insurance policy. Before Kinsey, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $11,646.08 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal to enter judgment for defendant n. o. v.</p> <p>— When seated in the touring car automobile, which had been hired by himself and his companions for their private and exclusive use, the deceased was not a passenger, nor was the automobile a public conveyance provided for passenger service, within the terms of the contract of insurance: McColligan v. R. R. Co., 214 Pa. 229.</p> <p>— The insured was a passenger: Penna. R. R. Co. v. Price, 96 Pa. 256; Perry v. R. R. Co., 41 Pa. Superior Ct. 591; Fox v. Philadelphia, 208 Pa. 127; Coryell v. Dubois Boro, 226 Pa. 103.</p> <p>The Bellevue-Stratford garage was a common carrier and its conveyances held open for general public hire and operated by its own chauffeurs were public conveyances: Ripley v. Insurance Co., 83 U. S. 336; Lloyd v. Storage & Transfer Co., 223 Pa. 148; Beckman v. Shouse, 5 Rawle, 179; Little v. Hackett, 116 U. S. 366 (6 Sup. Ct. Repr. 391); Missouri Pacific Ry. Co. v. Texas, etc., Ry. Co., 41 Fed. Repr. 316; Gibson v. R. R. Co., 226 Pa. 198.</p>

<p>Appeal, No. 120, Jan. T., 1910, by defendant, from judgment of C., P. No. 5, Phila. Co., Dec. T., 1908, No. 3,375, on finding by referee for plaintiff in case of Kate Lilla Erb v. Commercial Mutual Accident Company.</p> <p>Assumpsit by plaintiff as beneficiary on an accident insurance policy. Before Hon. Harman Yerkes, referee by agreement.</p> <p>■ The facts appear in the opinion of the Supreme Court. The referee found in favor of the plaintiff for 15,000, the face of the policy. The court dismissed exceptions to the referee’s report and judgment was entered on the award. Defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to report of referee.</p> <p>cited: Taliaferro v. Protective Assn., 80 Fed. Repr. 368; Accident Ins. Co. of N. A. v. Bennett, 90 Tenn. 256 (16 S. W. Repr. 723).</p> <p>cited: Collins v. Fidelity & Casualty Co., 63 Mo. App. 352; Union Casualty & Surety Co. v. Harroll, 98 Tenn. 591 (40 S. W. Repr. 1080); Robinson v. U. S. Acc. Assn., 68 Fed. Repr. 825; Burkhard v. Ins. Co., 102 Pa. 262; Lovelace v. Travelers’ Protective Assn., 126 Mo. 104 (28 S. W. Repr. 877); Johnson v. London, etc., Accident Co., 40 L. R. A. 440; Fidelity & Casualty Co, v. Sittig, 181 Ill. 111, (54 N. E. Repr. 903); Biehl v. Assur. Corp., 38 Pa. Superior Ct. 110; Gavula v. Ins. Co., 15 Pa. Dist. Rep. 432; Hutchcraft v. Ins. Co., 87 Ky. 300 (8 S. W. Repr. 570).</p>

<p>Appeal, No. 356, Jan. T., 1910, by Isabella B. Sower et al., on behalf of the Women’s Christian Association, from decree of O. C. Montgomery Co., Sept, stated court, 1910, No. 48, awarding distribution in Estate of Agnes J. Stinson, deceased.</p> <p>Exceptions to adjudication. Before Bland, P. J., specially presiding.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication and in holding a gift to the Women’s Christian Association void.</p> <p>— Mrs. Ralston did not have an interest at the execution of the will nor did she then acquire an interest: Kessler’s Estate, 221 Pa. 314.</p> <p>— A subscribing witness is interested in a will where he is given a legacy or devise by it. He is interested in a charitable or religious use where his relationship to it is or may be so intimate that he would or might be anxious that it should be the object of the testator’s bounty: Kessler’s Estate, 221 Pa. 314; Hupfeld’s Estate, 5 Phila. 219.</p> <p>The fact that the appointment of the members of the executive committee was made in precatory words is immaterial and irrelevant to the issue involved: Burt v. Herron, 66 Pa. 400; Coates’ Appeal, 2 Pa. 129.</p>

<p>Wills — Probate—Codicil—Signature.</p> <p>1. Probate of an alleged codicil to a will is properly refused when not signed anywhere by the testatrix.</p> <p>2. Immediately following the signature of testatrix to her will were the following words: “Codicil to will Whereas I, Agnes J. Stinson have made my last will and testament in writing bearing date Dec. 15, 1894. Now I do by this my writing which I hereby declare to be a codicil to my said will, to be taken as a part thereof, will and direct that the price of ‘The Aged Woman’s Home, Norristown, Pa.,’ be added to the Estate of Stephen P. Stinson, out of Agnes J. Stinson’s estate. ” Held, that the probate of the codicil was properly refused.</p>

<p>Appeal, No. 317, Jan. T., 1910, by defendant, from decree of C. P. Lycoming Co., March Term, 1908, No. 3, on bill in equity in suit of The City of Williamsport v. The Citizens’ Water & Gas Company.</p> <p>Bill in equity to compel the defendant water company to render to the plaintiff city an itemized statement of the net cost of erecting and maintaining its works, together with a detailed statement of dividends declared, and to exhibit such books, papers and vouchers as might be necessary to verify the statements so made. Before Hart, P. J.</p> <p>The bill avers: (1, 2, 3) the incorporation of the borough of Williamsport on March 1, 1806, and its erection into a city on January 15, 1866. (4) The incorporation of the Lycoming Gas & Water Co. under special Act of March 24, 1865, P. L. 767. (5) The provisions of sec. 7 of said act authorizing the company to erect its necessary works “for the purpose of supplying the inhabitants residing within the limits of the territory, here described, and parts adjacent thereto,” sufficient gas and pure water, and describing the territory referred to. (6) Section 9 of the act, as to rates. (7) That the property and franchises of this company were sold January 8, 1880, and the purchasers reorganized the company under the Act of May 25, 1878, P. L. 145, as the Citizens’ Water & Gas Company, accepting the provisions of art. XVI of the constitution and the provisions of the General Corporation Act of April 29, 1874, P. L. 73. (8) That clause 7 of sec. 34 of the act of 1874 provides: “It shall be lawful at any time after twenty years from the introduction of water or gas, as the case may be, into any place as aforesaid, for the town, borough, city or district, into which the said company shall be located, to become the owners of said works and the property of said company, by paying therefor the net cost of erecting and maintaining the same, with interest thereon, at the rate of ten per centum per annum, deducting from said interest all dividends theretofore declared. ...” (9) That defendant company and its predecessor have supplied water to the city of Williamsport and its inhabitants for more than twenty years. (10) That neither the city nor the borough has at any time constructed waterworks. (11) That on June 1, 1907, the councils of Williamsport passed the following resolution: “Whereas, the Williams-port Water Company and the Citizens’ Water & Gas Company have for more than twenty years supplied water to the public and the city; and whereas, it is the desire of the councils that the city shall become the owner of the works and properties of these companies under the provisions of clause 7 of sec. 34 of the act of April 29, 1874; therefore, resolved: 1. That the city declares its intention to become the owner of the works and properties of the companies and hereby agrees to pay therefor the net cost of erection and maintenance, with interest thereon at the rate of ten per centum per annum, deducting from the interest all dividends theretofore declared, provided, that the cost to the city of Williamsport, ascertained as above set forth, shall not, when taken together with the existing indebtedness of said city, exceed seven per centum of the valuation of the property in the said city taxable for county purposes; and provided further, that the electors of the said city shall assent, at a public election to be held for that purpose, to the increase of additional indebtedness of said city (not exceeding, when taken with the existing indebtedness, seven per centum of said assessed valuation) to a sum sufficient to effectuate the purchase. 2. The companies are requested to exhibit to the light and water committee of the city councils of the city of Williams-port a detailed and itemized statement showing the net cost of erecting and maintaining the works and property of the said company, as well as the amounts and dates of payment of all dividends heretofore declared, together with such other information as will enable said light and water committee to verify the statement or statements so made. 3. If the companies neglect or refuse to comply with the request for twenty days after notice, the light and water committee are to take legal steps to compel the companies to give the information demanded.” (12) That on July 12, 1907, a demand was made upon the defendant reciting the above resolution and requiring a statement in writing showing the net cost of erecting the waterworks and property of the Williamsport Water Company and the Citizens’ Water & Gas Company, the net cost of main-taming the works and property of said companies, the amounts and dates of the payments of all dividends theretofore declared, the date of completion of the waterworks of each of the said companies, the general character of the maintenance of the works and property, and such other information as will enable the committee to verify the statements above required. (13) That on July 13, 1907, the two companies by their attorneys answered declining to furnish the information, giving as a reason that it was obvious that the city did not have enough borrowing capacity under the law . to raise a sufficient amount of money to make the purchase. (14) That on November 1, 1907, the plaintiff’s solicitor had been instructed to proceed against the two companies. (15) That the refusals of the desired information rendered it impossible for the city authorities to take intelligent action in the premises. The bill ends with a prayer for the specific relief indicated at the beginning of this report, and with a prayer for general relief.</p> <p>The defendant company demurred, denying the jurisdiction of the court to proceed in equity since there was an adequate remedy at law by mandamus. The demurrer was overruled. The defendant then answered, (1, 2, 3) admitting the incorporation of the borough and of the city of Williamsport. (4) Admitting the incorporation of the original water company and averring certain amendments to its charter whereby it was authorized to make a loan of $100,000 to complete its works, in addition to a then existing indebtedness of $50,000. (5, 6, 7, 8 and 9) Admitting corresponding paragraphs of bill, and averring that the defendant company had not only supplied water in Williamsport but also in the borough of Du Boiston and in Loyalsock township for more than twenty years. (10) While not denying corresponding paragraphs, averring that the plaintiff had owned 400 shares of stock of the Williamsport Water Company and had had a representation of two members upon the board of managers of said corporation from 1856 to 1873 when the stock was sold. (11) Calling for proof of matters in corresponding paragraph. (12, 13) Denying that either the demand or the refusal set forth in the corresponding paragraphs of the bill was made upon or by the defendant company alone; averring that the demand was made upon and the reply by the defendant company and the Williamsport Water Company jointly; and calling attention to the fact that the councilmanic resolution referred to these companies jointly and not to either one of them separately. (14) Calling for proof of matters in corresponding paragraph. (15) Denying that the answer of the two companies averred in the corresponding paragraph of the bill prevents intelligent action by the plaintiff in the matter of acquiring the works and property of the defendant. (16) Averring that on September 3, 1907, before the bill was filed, the plaintiff, pursuant to a councilmanic resolution, requested its city engineer to furnish data and estimates of the cost of the works and property of the two water companies; that the engineer rendered such a report stating that he had had complete access to “all maps, plans, and data” of the two companies, and that the report “furnished a very reliable basis for the city to work upon,” and further that “the prices and areas of the land included in this report are matters of record;” that the total cost estimated by the engineer was 1858,221.55, not including the cost of maintenance. (17,18,19) That the defendant company, and its predecessors, had begun the construction of its work and the laying of its mains in 1865 and had continued with them to the present time, always supplying fresh and pure water to the places before stated. (20) That in order to protect the water supply from pollution and “acceding to the demands of the board of health of the City of Williams-port” the two companies had purchased and owned large tracts of land, in the case of the defendant amounting to 5,017 acres and of the Williamsport Water Co. to 2,020 acres. (21, 22) That when the report was made by the city engineer, on September 12,1907, and at the time of the filing of the bill, the defendant owned and operated the property set forth in the paragraphs, and that the value of such property greatly exceeded the borrowing capacity of the plaintiff. (23) That prior to the resolution of June 1,1907, and to the filing of the bill, the plaintiff had knowledge that the defendant had become the owner of land and other properties in Armstrong township, largely at the command of the aforesaid board of health, which property was acquired at a cost greatly exceeding the borrowing capacity of the plaintiff city. (24) That on July 12, 1907, when the demand was made, and at the time of the filing of the bill, the last assessed valuation of taxable property within the plaintiff city was “$9,578,853, and its existing indebtedness $545,561.54, which indebtedness could not be increased more than $124,958.17, without violating sec. 8, of art. IX of the constitution; a financial condition known to the plaintiff.” (25) “That the plaintiff .... having knowledge before filing its bill that the cost of a portion of the works and property of the company when taken together with the existing indebtedness of the city, very largely exceeded seven per centum of the valuation of its taxable property, it was unnecessary and useless for her to proceed further and to require from the company the statement demanded; and hence the relief prayed for . . . . was inquisitorial and an unreasonable search, against .... sec. 8 of art. I of the Constitution.” (26) Calling attention that the resolution of the city councils declared its intention to purchase the works of the two companies provided that the city had sufficient borrowing capacity, and further calling attention to the fact that the report of the city engineer showed that the probable cost of the work would exceed the borrowing capacity by more than $700,000, and averring for that reason the proceedings against it were an unlawful attempt to enforce an unreasonable search. (27) Averring that because the resolutions of councils were aimed against the two companies jointly the suit was improperly brought against the defendant company alone. (28, 29) A general denial of the rights of the plaintiff and a specific denial of the jurisdiction of the court in equity, and an averment that there was an adequate remedy at law by mandamus.</p> <p>When the case came on to be heard the court below • found the historical facts concerning the several corporations as averred in the bill and admitted in the answer. The facts as to the resolutions' of councils and the demand upon the companies and their refusal, were found substantially as averred in the bill, but the court found that the demand and refusal were by and against the two companies jointly as averred in the answer. Further, that the two companies maintain the same headquarters in the city of Williamsport where each of them "transacts its principal business” and that they have the same office.</p> <p>The court refused, “as irrelevant, incompetent and immaterial to the issue being tried,” requests for findings submitted by the defendant concerning the borrowing capacity of the city, the investigations made by its engineer and the value placed by him upon the defendant’s works, the general details of the property owned by the defendant and the fact that their value exceeded the borrowing capacity of the plaintiff, and concerning the value of real estate recently purchased by the defendant and that it exceeded the borrowing capacity of the plaintiff, as contended for in the answer of the defendant.</p> <p>The court’s conclusions of law were: (1) That clause 7, sec. 34, of the Act of April 29,1874, P. L. 73, applied in this case and that the plaintiff had the right to acquire the defendant’s works thereunder. (2) That the relief prayed for by the plaintiff was not inquisitorial and did not constitute an unreasonable search in violation of the constitution. (3) That the court had jurisdiction. (4-5) That in the absence of proof on the part of the defendant that it was possessed of no written evidence or data of the costs of the construction and maintenance of its water plant and as to dividends declared, no secondary evidence thereof was competent, and "for this reason we have excluded the testimony of the character here indicated, which we received.” (6) That the only question at issue was the right of the plaintiff to obtain from the defendant “a statement, or data, of the cost” of construction and maintenance and of dividends, and “access by the city to its books and records for the purpose of making such statement and data.” (7) That to entitle the plaintiff to the relief prayed for “it is not necessary that she first show her ability to make the purchase,” or “bind herself to make the purchase.” (8) That the plaintiff was entitled to the information and the relief prayed for. (9) That the plaintiff had no adequate remedy at law. Concerning conclusions (4, 5 and 7), the opinion states: “Whilst we opened the door widely and permitted the defendant to introduce testimony showing the assessed value of taxable property of the city for the year 1907, and also to show by an expert witness his estimate of the cost of erecting the works of the company defendant, we are convinced, upon more careful consideration of the question, that this evidence is incompetent and irrelevant to the issue here being tried. This evidence as to the cost of erecting the works is not the best evidence, for the reason that the defendant company is presumed to be possessed of the actual net cost of the erection and maintenance of its works. . . .”</p> <p>On July 11,1910, the court decreed: “That the Citizens’ Water and Gas Company, defendant, its president, Henry L>. Brown, and its secretary and treasurer, William H. Bloom, render to the Light and Water Committee of the Councils of the City of Williamsport, plaintiff, a detailed and itemized statement showing the net cost of erecting and maintaining the works and property of said .... Company, the amounts and dates of its various expenditures, as well as the purposes for which the same were made, the amounts and dates of payment of all dividends heretofore declared, together with such other information and exhibition of books, papers and vouchers as will enable said committee to verify the statements so made.”</p> <p>Errors assigned were: (1- 3, 23, 25) holding that the court had jurisdiction in equity; that there was no adequate remedy at law; same rulings on the demurrer; the refusal to dismiss the bill; the decree entered. The remaining assignments were to the answers given to the defendant’s requests for findings, and to the court’s conclusions of law, above referred to.</p> <p>The plaintiff has an adequate remedy at law by the statutory writ of mandamus: Com. v. Phœnix Iron Co., 105 Pa. 111; Neubert v. Armstrong Water Co., 211 Pa. 582; Mercur v. Media Elec. Light, Heat & Power Co., 19 Pa. Superior Ct. 519; Easton Borough v. Lehigh Water Co., 97 Pa. 554; Mount Moriah Cemetery Assn. v. Com., 81 Pa. 235; McClintock v. Young Republicans, 210 Pa. 115; Patterson v. Lane, 35 Pa. 275.</p> <p>No power is given by the act of 1836 to courts of equity over corporations other than the ordinary practice of a court of chancery: Jenkins v. Baxter, 160 Pa. 199; Caldwell v. East Broad Top R. R. Coal Co., 169 Pa. 99; Gallagher v. Fayette County R. R. Co., 38 Pa. 102; Dimmick v. Delaware, etc., R. R. Co., 180 Pa. 468; Wolf v. Glassport Lumber Co., 210 Pa. 370.</p> <p>— That there might have been a remedy at law is not sufficient to oust the jurisdiction; the remedy at law, in order to oust the jurisdiction must be án adequate one and reasonably convenient: Warner v. McMullin, 131 Pa. 370; Mercur v. Media Elec. Light, Heat & Power Co., 19 Pa. Superior Ct. 519; Douglass v. McLean, 25 Pa. Superior Ct. 9.</p>

<p>Appeal, No. 316, Jan. T., 1910, by defendant, from decree of C. P. Lycoming Co., March T., 1908, No. 2, on bill in equity in suit of The City of Williams-port Vo.Williamsport Water Company.</p>

<p>Appeal, No. 18, Jan. T., 1911, by plaintiffs, from judgment of O. C. Lycoming Co., June T., 1910, No. 321, on verdict for defendants in case of The President, Managers and Company for erecting a bridge over the west branch of Susquehanna at the Town of Lewisburg, otherwise called the Lewisburg Bridge Company v. The County of Union and the County of Northumberland.</p> <p>Action in trespass’ to recover damages because of the construction of a riyal bridge erected' under the Act of May 6, 1897, P. L; 46, as amended by the Act of May 13, 1901, P. L. 191. Before Hart, P. J,</p> <p>The plaintiff claimed that its franchise was an exclusive. one, and that the erection of a new inter-county bridge had depreciated the value of the franchise. The court below ruled that it was not exclusive and refused to admit evidence offered to show the alleged depreciation. The plaintiff’s bridge was erected under and by authority of the special Acts of March 23, 1865, P. L. 602 and of February 18, 1868, P. L. 177, to take the place of an old bridge which had been destroyed. Section 2 of the latter act provides: “That said company be and are hereby empowered to rebuild said bridge .... at any place within half a mile of the location of the old bridge .... and that the site where the new bridge has been located and commenced, north of where the old one stood, is hereby made valid . . . .” and sec. 9, “All property and franchises held by said company at the site of the old bridge shall continue to be held in the same manner as if the bridge had been there re-erected.”</p> <p>The other facts in the case are sufficiently stated in the following abstracts from the charge of the trial judge: “The plaintiff seeks to recover the value of certain stone, .... and also for the value of a certain toll house, and the land occupied by the toll house and leading from the toll house to the Susquehanna river. The plaintiff company is a corporation originally incorporated by Act of ... . March 26, 1814, P. L. 223, in which it was authorized to. erect a bridge from the east end of Market street, in the town of Lewisburg, to the opposite shore; ..... the plaintiff company did proceed and construct a bridge .... upon piers located in the river and abutments at either end. . . . This bridge continued to be used down to the year 1865, when, on the 17th day of March, of that year, it was destroyed by a flood. In the year 1867, the plaintiff constructed another bridge at a point which is about 400 feet north from the old bridge, at the western side of the river, and a distance of about 200 feet north at the east side of the river. . . . Subsequent to the destruction of this old bridge .... and to the building of the new bridge .... the county of Union and the county of Northumberland constructed a free bridge at the site of the old bridge as located prior to 1865; in the construction of this inter-county bridge there was used .... stone taken from the western, abutment, and it has been testified on the part of the plaintiff that this stone amounted to about four carloads; .... It is my recollection that the testimony showed that there were two carloads used in the construction of ... . the new bridge .... and that the other two carloads were not used in the new bridge, but were used by the contractor. ... It is also shown on the part of the plaintiff that about the time of the commencement of the construction of this new bridge, which was on the 30th of December, 1905, .... the contractor, or those who were interested in clearing the ground for the construction of the new bridge, caused this old toll house to be broken into, and .... at a later date the building was put up at public auction by the Commissioners of Union and Northumberland counties and sold at public sale, and that there was derived from this sale the sum of $56.50, including the foundation and all. It has been testified on the part of the plaintiff by Mr. Wendel that he lived in this house from 1874 down to 1894, and that he had not been in the house from that time down to the sale, but gives it as his opinion that the whole premises, assuming that the plaintiff was the owner of the land on which they were located, were worth about a thousand dollars, and he fixed its market value at about that figure, but also said that considering the building alone he did not consider it of much value. ... Now this is substantially the testimony on the part of the plaintiff that relates to the subject of our inquiry . . . .; it presents at least two questions in reference to the stone — one as to the amount of stone that was actually taken and made use of by the defendants .... and the other as to the value thereof. The only witness that I recall that undertook to testify as to the value of this stone said that such stone had a value of about one dollar and forty cents a perch, but stated further that in place they did not possess much if any value. . . . The value of the building, considering it as an independent proposition, must depend upon what it was worth at that place and at the time it was taken. If the land is considered with it, then of course the measure of value would be the value of the house as it stood there at the time and any other property connected with it.” Here the trial judge refers to the testimony going to show the circumstances under which the toll house was erected and whether or not it stood upon ground which could be classed as a public street, after which he said: “If the jury believe from the evidence that plaintiff never had any other title to this land, and there is no evidence here of any grant of title to any piece of ground connected with this bridge at the western end, then when it ceased to use this ground for bridge purposes, or when it ceased to use it for the purpose of maintaining a toll house there for that bridge, the land reverted back to either the original owner or to those by whom it was dedicated, and the plaintiff would have no right to damages for the land itself in this action. ... If you believe that this land was public property, then we say tó you that when the plaintiff bridge company ceased to use this land for the necessary purposes of a bridge at that place it had no longer a claim in the soil or to this easement that it may have up to that time enjoyed. . . . The next question you come to is, if you find this was public land there, a street or a dedicated plot of ground, and that plaintiff had abandoned, it for bridge purposes, what value had this toll house simply as a dwelling as it was used at the time of its being taken away. That is a question entirely for the jury under the evidence, and as you decide that so will you determine its value.” In answering requests for charge, the court informed the jury that the plaintiff was entitled to recover what they might determine to be the worth of the toll-house, and also the value of the stone from the old bridge which was used in the construction of the new inter-county bridge; but if they believed from the evidence that the property referred to had no real value, there could be no recovery.</p> <p>Verdict and judgment for the defendant. The plaintiff appealed.</p> <p>Errors assigned were rulings on evidence, charge of the trial judge and answers to requests for charge which raise the questions referred to in the opinion of the Supreme Court. Last assignment: overruling motion of plaintiff’s counsel to withdraw a juror because one of the defendant’s witnesses of his own accord, while the judge was off the bench, but while counsel for both sides were in the court room, indicated to the jury that a photograph before them showed the house in which the witness was born.</p> <p>— The court had jurisdiction of the subject-matter: Lafean v. York County, 20 Pa. Superior Ct. 573; Jeannette Boro. v. Roehme, 9 Pa. Superior Ct. 33; Byers v. Byers, 208 Pa. 23; Magee v. R. R. Co., 13 Pa. Superior Ct. 187; Lycoming Fire Ins. Co. v. Storrs, 97 Pa. 354.</p> <p>The defendants are estopped to set up any defense based on the character of their action by their denial of any title in plaintiff to any property or franchises at the site of the old bridge: McMasters v. Carothers, 1 Pa. 324; Bradfords v. Kents, 43 Pa. 474; Eell’s Est., 6 Pa. 457; Gordon v. Inghram, 32 Pa. 214.</p> <p>Defendants have waived any right to such defense by going to trial and taking risk of the event of the suit: Daley v. Iselin, 212 Pa. 279.</p> <p>Plaintiff had his election and could waive the statutory remedy: Brown v. Powell, 25 Pa, 229; Davis v. Southwest Penna. Pipe Lines, 34 Pa. Superior Ct. 438, 223 Pa. 56; Rabe v. Shoenberger Coal Co., 213 Pa. 252.</p> <p>— The plaintiff is not entitled to recover in this form of action. White v. McKeesport Boro., 101 Pa. 394; McKee v. Pittsburg, 7 Pa. Superior Ct. 397; Moyer v. Kirby, 14 S. & R. 162; Criswell v. Clugh, 3 Watts, 330; Hawkins v. Pittsburg, 220 Pa. 7.</p>

<p>Appeal, No. 180, Jan. T., 1910, by intervening, defendant, from judgment of C. P, Lackawanna Co., No. 468, March T., 1907, affirming report of referee in case of City of Scranton to use v. George C. Genet and Augusta G. Genet, intervening defendant.</p> <p>Exceptions to report of referee, S. B. Price, Esq.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was among others overruling exceptions to report of referee and in directing judgment to be entered for the plaintiff.</p> <p>— The first writ of scire facias was a nullity for all purposes and must be treated as though it had never been issued; that the municipal lien therefore expired by efflux of time before the alias scire facias was issued; that that alias scire facias was also a nullity; that the voluntary appearance of the defendant had no greater effect than a valid service of the alias scire facias could have had; that the municipal lien was a hen in rem and once lost was lost forever and that no judgment could be entered thereon: Wistar v. Philadelphia, 86 Pa. 215; Ferguson v. Quinn, 123 Pa. 337; Simons v. Kern, 92 Pa. 455; Philadelphia v. Cooper, 212 Pa. 306; Scranton v. Stokes (No. 2), 28 Pa. Superior Ct. 437; Philadelphia v. Ward, 16 W. N. C. 76.</p> <p>— Defendant waived any defect in the scire facias: Scranton v. Stokes, 28 Pa. Superior Ct. 434; Scranton v. Koehler, 36 Pa. Superior Ct. 95; Lycoming Fire Ins. Co. v. Storrs, 97 Pa. 354; Skidmore v. Bradford, 4 Pa. 296; Beltzhoover Boro. v. Beltzhoover’s Heirs, 173 Pa. 213.</p>

Appeal, No. 191, Jan. T., 1910, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1907, No. 1,075, entered n. o. v. for defendant in case of James C. Husvar v. The Delaware, Lackawanna & Western Railroad Company. Trespass for personal injuries. Before Heydt, P. J., specially presiding. The facts appear in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant non obstante veredicto.

Appeal, No. 277, Jan. T., 1911, by plaintiff, from judgment of C. P. Wayne Co., Oct. T., 1908, No. 158, in case of Reifler & Sons, Incorporated, v. The Wayne Storage Water Power Company. Ejectment for lands in Lebanon Township. Before Fuller, J., specially presiding, without a jury. The facts appear in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant.

Appeal, No. 318, Jan. T., 1910, by defendant, from judgment of C. P. Wayne Co., Oct. T., 1909, No. 65, on verdict for plaintiff in case of The Hones-dale Ice Company, to use of Russell T. Whitney, v. The Lake Lodore Improvement Co. Assumpsit for breach of a contract of sale. Before Stewart, J., specially presiding.

<p>Appeal, No. 40, Jan. T., 1911, by defendants, from decree of C. P. Berks County, No. 1,012 equity docket, 1910, in case of City of Reading v. United Traction Company, Front & Fifth Street Railway Company, and. Reading Transit Company, Appellants.</p> <p>Bill in equity for an injunction. Before Endlich, P. J.</p> <p>The following facts appear from the record:</p> <p>The United Traction Company was formerly the lessee of the various street railways in the city of Reading. The Reading Transit Company is the present lessee under a lease from the United Traction Company. The Front & Fifth Street Railway Company is one of the original lessor companies.</p> <p>In 1906 the Front and Fifth street line and the Schuylkill avenue line radiated from tbie center of Reading to the outskirts, running not parallel but in the same general direction. Each was a single track railway with turn-outs and each terminated in a dead end. It was deemed desirable that the dead ends be connected by a loop, so that cars could run out one street and in the other, thus abolishing the necessity for turn-outs. This suggestion was taken up by Dr. Walter A. Rigg, who was a son of the president of the United Traction Company, who conferred with the railway committee of the city councils on the subject, writing the following letter:</p> <p>“John A. Rigg, Pres. “ H. C. Moore, Asst, to Pres.</p> <p>“T. W. Grookett, Jr., “S. E. Rigg, Geni. Supt.</p> <p>Sec’y & Treas.</p> <p>“ UNITED TRACTION COMPANY</p> <p>“Reading, Pa., Oct. 6, 1906.</p> <p>“ Mr. Ira W. Stratton,</p> <p>“ Chairman, Railways Committee of Councils of the City of Reading, Pennsylvania.</p> <p>“Dear Sir:</p> <p>“In answer to your inquiries concerning the removal of the turnout on Schuylkill Avenue in the event of the laying of an additional track on Windsor Street, to better the railway service in the northwestern section of the City, and as to the service, fare, etc., I can only say that all turnouts are obstructions to be avoided if possible, and that therefore in the event of the action you refer to, the turnout on Schuylkill Avenue will be removed.</p> <p>“It is manifest to the Company as well as to the public in that district that the travel is congested under the present arrangement, and this would of course be relieved by the so-called loopj which would enable the Company to give more frequent service, and that would be done. The only limit of the service in all cases being the possibilities under the circumstances. In this case I may say that the Company would give a more frequent service than the present ten-minute schedule, and will increase the service from time to time as the travel may warrant.</p> <p>“There would be no increase in fare. The fare limit would be Buttonwood Street, that is, a single fare would carry a passenger from any part of town to any point on Schuylkill Avenue or around the loop to Front & Buttonwood streets, and for incoming passengers a single fare would be good from Schuylkill Avenue and Buttonwood street, and points beyond, around the loop to any part of the City.</p> <p>“Yours truly,</p> <p>“(Signed) Walter S. Rigg.”</p> <p>The committee reported to councils, presenting the above letter and recommending the grant of permission to make the connection suggested and the passage of an ordinance for that purpose. Such an ordinance was at once passed, in the following form:</p> <p>“ Section 1. Be it ordained by the Select and Common Councils of the City of Reading: That the ordinance entitled, ‘An ordinance granting the Front & Fifth Street Railway Company the privilege of laying a single track railway, with necessary curves, turnouts, connections and switches, beginning at Front and Schuylkill Avenue, there connecting with the track of the Reading City Passenger Railway Company, thence north on said Front Street to Oley Street, thence West on Oley Street to Weiser Street, thence North on Weiser Street to Windsor Street, thence East on Windsor Street to Front Street, thence connecting with the track of the Reading & Temple Electric Railway Company, and to cross all other streets and to erect poles and string overhead wires to operate the same/ approved November 11, 1902, be and the same is hereby amended so as to grant the Front & Fifth Street Railway Company the privilege of laying a single track railway on Windsor Street from Weiser Street to Schuylkill Avenue, with necessary curves and connections, subject to all the conditions, provisions, restrictions and stipulations of the ordinance to which this is an amendment, and of sec. 2 and sec. 3 of this ordinance.</p> <p>“Section 2. That the rate of fare shall not exceed five (5) cents for a single fare, or six tickets for twenty-five (25) cents."</p> <p>In March, 1910, the company stopped the sale of “strip tickets" at the rate of six for a quarter on all their lines.</p> <p>The city thereupon filed this bill in equity.</p> <p>A preliminary injunction issued, commanding the company to “restore and continue the practice as to the sale of tickets on its cars pursued prior to March 18, 1910, and they are commanded .... to sell to passengers on the cars of the said Union Traction Company in the City of Reading six tickets for twenty-five cents, each ticket constituting one fare.” This injunction was later made permanent.</p> <p>Error assigned was the decree of the court.</p> <p>cited: Philadelphia v. Phila. Rapid Transit Co., 224 Pa. 544, and 228 Pa. 325.</p>

Appeal, No. 7, Jan. T., 1911, by plaintiff, from judgment of C. P. Franklin Co., April T., 1909, No. 37, for defendant non obstante veredicto in case of Emma L. Smith v. Philadelphia & Reading Railway Company. Trespass to recover damages for death of plaintiff's husband.

Appeal, No. 351, Jan. T., 1910, by defendant, from judgment of C. P. Northampton Co., June T., 1909, No. 63, on verdict for plaintiff in case of S. R. Bush v. Philadelphia & Reading Railway Company. Trespass to recover damages for injuries to an automobile. Before Scott, P. J. The facts appear in the opinion of the Supreme Court. Verdict for plaintiff for $4,792.50 and judgment thereon. Defendant appealed. Errors assigned were in refusing judgment for defendant.

<p>Negligence — Master and servant — Safe appliances — Duty to furnish and inspect — Inconsistency of statement — Evidence—Identification— Conflict of laws.</p> <p>1. In an action to recover damages for injuries resulting from an accident which occurred in New York state, the case is for the jury where it appears that the plaintiff, who was employed by defendant company in unloading heavy timbers, was hurt by reason of the breaking of a rope or sling, which caused a number of pieces of timber to fall upon him; that the rope or sling which broke had been furnished by the defendant, that it had been prepared by. the men working on another job, that it had been continuously in use three or four years, although the limit of its safe use was fixed by some of the witnesses at from eight months to a year; that it had not been inspected, was weather-beaten, worn and rotten and unfit to sustain anything like the weight required; without anything to show that any other slings which might have been used were sufficient and suitable for the particular use to which the defective rope was being applied, and without any evidence being offered by the defendant to show that it had furnished sufficient or suitable rope. Vogel v. Bridge Co., 180 N. Y. 373, distinguished.</p> <p>2. In such a case there is no inconsistency in a statement which alleges first, that the ropes and appliances used in lashing the timbers were old, rotten and insufficient; and second, that they were not properly inspected; since both relate to the same feature of negligence.</p> <p>3. In such a case the testimony of witnesses who examined a broken rope after the accident and described its condition, is properly submitted to the jury even though they did not identify completely the rope they saw with the one which broke, where the uncontradicted evidence is that but one broken sling was seen on the job, the coincidence in the admitted facts making it more reasonable to conclude that the rope which the witnesses examined was the one which had been in use rather than to conclude that it was not identical with the latter.</p> <p>Practice, C. P. — Court and jury — Reservation—Form.</p> <p>4. A reservation in the following form is good: “We reserve as a question of law whether or not there is any evidence in the case upon which the plaintiff is entitled to recover.”</p>

<p>Appeal, No. 52, Jan. T., 1911, by Title Guaranty & Surety Co., from judgment of C. P. Bradford Co., Sept. T., 1908, No. 46, on verdict for plaintiff in case of John H. Brown v. Title Guaranty & Surety Co., and the Pittsburg, Binghamton & Eastern Railroad Company.</p> <p>Assumpsit against principal and surety on a condemnation bond. Before Fanning, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Judgment against the Pittsburg, Binghamton & Eastern Railroad Company for want of an appearance. Verdict and judgment for the plaintiff for $2,226 against the Title Guaranty & Surety Company by direction of the court with question of law reserved, on which final judgment was entered for the plaintiff on the question of law reserved. The Title Guaranty & Surety Company appealed.</p> <p>Error assigned was in entering judgment for plaintiff and refusal of judgment for the surety company.</p> <p>— The defendant company never agreed to become surety for the payment to Brown of the purchase price of the land in fee simple.</p> <p>The appropriation of land under the power of eminent domain does not give a fee simple estate therein in the absence of express statutory language to that effect, but only a right to use and occupy the land for the purpose for which it is taken: Lazarus v. Morris, 212 Pa. 128; Pittsburg & Lake Erie R. R. Co. v. Bruce, 102 Pa. 23; Pittock v. Telegraph Co., 31 Pa. Superior Ct. 589; Oakland Ry. Co. v. Keenan, 56 Pa. 198; Lance’s App., 55 Pa. 16; Dilts v. R. R. Co., 222 Pa. 516; Hasson v. R. R. Co., 8 Phila. 556; Carter v. Turnpike Co., 22 Pa. Superior Ct. 162.</p> <p>■ The modern doctrine announced in Young v. American Bonding Company, 228 Pa. 373, and cited by the lower court in the opinion filed does not work such a radical change in the law of suretyship as to make the surety liable in this case: Bauschard Co. v. F. & C. Co., 21 Pa. Superior Ct. 370; Hutchinson v. Woodwell, 107 Pa. 509; American Bonding Co. v. Inv. Co., 150 Fed. Repr. 17.</p> <p>— If an entire lot is taken, its value at the time of taking determines the amount of the damages Junction R. R. Co. v. Philadelphia, 88 Pa. 424; Washington Cemetery v. Prospect Park & Coney Island R. R. Co., 68 N. Y. 591.</p> <p>Where an easement is taken for a highway the compensation is generally estimated in practice at the value of the land itself: Penna. R. R. Co.’s App., 2 Walk. (Pa.) 506; Pennsylvania R. R. Co. v. Bruner, 55 Pa. 318; Tucker v. R. R. Co., 27 Pa. 281; Penna. R. R. Co. v. Heister, 8 Pa. 445; Penna. Schuylkill Val. R. R. Co. v. Paper Mills, 149 Pa. 18; Dilts v. Plumville R. R. Co., 222 Pa. 516; Pitts., Ft. Wayne & Chi. Railway v. Peet, 152 Pa. 488; Reading v. Davis, 153 Pa. 360; Junction R. R. Co. v. Boyd, 8 Phila. 224.</p> <p>The defendant company is a concern for the purpose, among others, of assuming for pay risks of the nature it did assume in this case, and undoubtedly this risk in question was upon a valuable consideration. The law draws a distinction between such sureties and cases of suretyship by private persons for the accommodation of their friends: Young v. American Bonding Company, 228 Pa. 373.</p>

<p>Practice, O. C. — Decisions in limine — Wills—Construction.</p> <p>1. The courts of Pennsylvania have no jurisdiction to declare the construction of a will and rights under it by way of advice in limine, and without adverse litigants actually before them.</p> <p>2. Where a testator, after directing that the income from certain real property should be paid to his widow for life, makes provision for a fund to support a church pew in perpetuity out of the income after her death, the validity of the latter provision cannot properly be raised in court until after the termination of the widow’s life estate.</p>

<p>Wills — Trusts and trustees — 1/i.fe tenant and remainder-men — Rent— Apportionment — Landlord and tenant.</p> <p>1. Where a testator devises certain real estate to his executors in trust to rent and manage with power to sell and invest and to pay over the net income to his widow for life and after her death to make certain payments out of the income from the property or from the proceeds of its sale, and at the time of testator’s decease the property is leased for a term ending January 1, 1913, at a rental of $1,041.67 per month, and thereafter a third party, in pursuance of an agreement with the original lessees, enters into a new lease with the trustees for the term of ten years, the rental to'be paid: $10,000 in cash at the signing of the lease, $1,041.67 to be paid monthly until January, 1913, and thereafter $1,750 per month during the remainder of the lease, the $10,000 is properly payable to the widow as rental accrued in her lifetime.</p> <p>2. In Pennsylvania rent is not apportionable in respect of time.</p>

<p>Appeal, No. 372, Jan. T., 1910, by defendant, from judgment of C. P. No. 3, Phila. Co., March T., 1904, No. 3,362, on verdict for plaintiff in case of Ella P. Buckman v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for death. Before McMichael, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The appellant’s statement of the question involved took up about one page and a half, but was printed in large type and double spaced. It was as follows:</p> <p>IV. STATEMENT OF QUESTIONS INVOLVED.</p> <p>I. Whether the evidence as to the proper and customary place for the driver of a wagon to stop before crossing a railroad was admissible in this case?</p> <p>II. Whether the testimony of the wife to prove the average proceeds from the loads of truck sold by her husband-is admissible as evidence of the earning capacity of a truck farmer who leased a farm which he worked by his own services, the services of his wife, two sons and hired employees, in the course of which he also employed horses, wagons and farm implements?</p> <p>III. Whether the charge of the trial Judge upon the view that could be had at a grade crossing was adequate?</p> <p>IV. Whether the trial judge erred in charging the jury upon the duty of care to be exercised by the driver of a wagon at a grade crossing of a railroad?</p> <p>V. Whether the evidence of the plaintiff to prove negligence was sufficient to carry the case to the jury?</p> <p>VI. Whether the deceased was guilty of contributory negligence in failing to look and listen for a train which struck his horses the instant they entered upon the tracks?</p> <p>Verdict for plaintiff for $18,000 of which all above $15,000 was later remitted, and judgment was entered for plaintiff for $15,000. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, and portions of the charge and refusal to enter judgment for defendant n. o. v.</p> <p>— The learned trial judge erred in permitting the plaintiff to offer evidence to show the usual and customary stopping place for drivers approaching the grade crossing where the accident happened, until it was proved that the point in question was the best place and practically the only place where a clear view of an approaching train could be had from a point of safety: Urias v. R. R. Co., 152 Pa. 326; Blotz v. R. R. Co., 212 Pa. 154.</p> <p>Plaintiff’s testimony as to the earnings of her husband was improper: Burns v. R. R. Co., 219 Pa. 225; Buckman v. Ry. Co., 227 Pa. 277; McCracken v. Traction Co., 201 Pa. 384; Hewlitt v. R. R. Co., 63 N. Y. App, Div. 423 (71 N. Y. Supp. 531).</p> <p>— Evidence of defendant’s negligence was adduced: Rottmund v. R. R. Co., 225 Pa. 410; Clarke Co. v. R. R. Co., 27 Pa. Superior Ct. 251; Schwarz v. R. R. Co., 218 Pa. 187; Winterbottom v. R. R. Co., 217 Pa. 574.</p> <p>The evidence concerning the usual and proper place for stopping was properly admitted: Cookson v. Ry. Co., 179 Pa. 184; Whitman v. R. R. Co., 156 Pa. 175.</p> <p>Decedent was not guilty of contributory negligence: Tressler v. R. R. Co., 40 Pa. Superior Ct. 224; Schwoerer v. R. R. Co., 225 Pa. 28; Cookson v. Ry. Co., 179 Pa. 184; Whitman v. R. R. Co., 156 Pa. 175; Beach v. R. R. Co., 212 Pa. 567; Messinger v. Penna. R. R. Co., 215 Pa. 497; Muckinhaupt v. Erie R. R. Co., 196 Pa. 213; Hanna v. Ry. Co., 213 Pa. 157; Elston v. R. R. Co., 196 Pa. 595; Calhoun v. R. R. Co., 223 Pa. 298.</p> <p>The evidence of the earning power of decedent was sufficient: Buckman v. Ry. Co., 227 Pa. 277; Simpson v. R. R. Co., 210 Pa. 101; Hanover R. R. Co. v. Coyle, 55 Pa. 396; Penna. R. R. Co. v. Dale, 76 Pa. 47; Wallace v. Penna. R. R. Co., 195 Pa. 127.</p>

<p>Appeal, No. 59, Jan. T., 1911, by plaintiff, from order of C. P. No. 5, Phila Co., Dec. T., 1903, No. 1,330, refusing to take off nonsuit in case of Michael Conway v. Philadelphia Hardware & Malleable Iron Works.</p> <p>Trespass to recover damages for personal injuries. Before Ralston, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off.</p>

<p>Negligence — Explosives—Dealer in fireworks — Depositing refuse on dumping ground — Children—Proximate cause — Intervening act.</p> <p>1. A wholesale dealer in fireworks who has the refuse accumulating at his place of business put into barrels and deposited on a dumping ground, paying the lessee of the ground for the privilege, is not liable in damages to a twelve year old boy who goes on the dumping ground, picks out of the deposit a piece of fireworks, carries it to his home some distance away, and later in the day, after dark, lights it, and is injured by a resulting explosion.</p> <p>2. In an action to recover damages for personal injuries the plaintiff is not entitled to a recovery where the injury could not reasonably have been contemplated as the result of any act of the defendant but resulted from an independent, intervening act of the plaintiff.</p>

<p>Equity — Jurisdiction—Accounting—Patent royalties — Multiplicity of suits.</p> <p>1. Jurisdiction in equity is properly invoked by a plaintiff seeking for an accounting for royalties claimed under the terms of an article of agreement, upon sales of certain articles manufactured by the defendants, under the specifications of certain letters patent granted to plaintiff and afterwards assigned by him to the defendant, there being involved four different patents, each containing several claims.</p> <p>2. In such a case, equity, having taken jurisdiction of the accounting for royalties, will, in order to avoid multiplicity of suits, proceed with the settlement of other points in controversy between the parties, such as the amount of salary and the amount of commissions due one of the parties under the terms of a contract.</p> <p>3. Where a court of equity properly takes jurisdiction of one of the subjects of a contest, it will dispose of the whole matter in controversy between the parties and thus avoid a multiplicity of suits.</p>

<p>Appeals, Nos. 368 and 369, Jan. T., 1910, by James J. Finn and Thomas Jennings, trading as Finn & Jennings, claimants, and the German-town Woodworking Company, claimant, from the order of C. P. No. 1, Phila. Co., March T., 1909, No. 1,225, awarding distribution in case of Harlan Page, mortgagee, v. John H. Carr, mortgagor, and Charles C. Norris, Jr., real owner.</p> <p>Distribution of a fund raised by sheriff’s sale under a judgment upon a scire facias sur mortgage. Exceptions to report of George DeB. Myers, Esq., auditor.</p> <p>From the record it appeared that Harlan Page, mortgagee, issued a scire facias sur mortgage against John H. Carr, mortgagor, and Charles C. Norris, Jr., real owner. Judgment for want of an affidavit of defense was entered on April 3, 1909, in the sum of $34,167. Under this judgment the mortgaged premises were sold by the sheriff on May 3, 1909, to Warren F. Martin for $25,000. The mortgaged premises which were sold under the levari facias, consisted of twenty-four dwellings and a large lot of ground adjoining them. Against the twenty-four dwellings a number of material men had filed mechanics’ claims, and upon the petition of one of them, Reuben A. Fowler, the court below ordered the fund realized at the sheriff’s sale to be paid into court for distribution. Pursuant to this order, upon September 27, 1909, the sheriff paid into court the sum of $23,559.22, being the balance of the $25,000 paid by the purchaser at the sheriff’s sale, less city taxes and costs of suit.</p> <p>The court appointed George DeB. Myers, Esq., auditor. The claimants appearing before him were Harlan Page, mortgagee, and a number of mechanics’ lien creditors, as follows: John M. B. Morrow, Reuben A. Fowler, Reliance Manufacturing Company, James Moore, and the present appellants, Finn and Jennings, and the Germantown Woodworking Company. After the testimony was taken by the auditor some of the mechanics’ lien claimants filed petitions to have an issue awarded in order to have certain disputed questions of fact, raised by the testimony, determined by a jury. Subsequently these petitions and the rules thereon allowed by the court to show cause were withdrawn. On January 25, 1910, the auditor filed an interlocutory report, setting forth that the totel amount of the claims of the mechanics’ lien creditors amounted to a trifle over $8,800, and that the claim of Harlan Page was for the entire fund under his judgment of $34,167. The court upon February 11, 1910, upon petition and rule allowed Harlan Page, ordered that $10,000 of the fund in court be paid to Mr. Page, as mortgagee.</p> <p>The auditor upon April 7, 1910, completed his report, awarding the balance in court, amounting to $13,559.22, less the expenses of the audit, to Harlan Page, mortgagee.</p> <p>Exceptions to the auditor’s report were filed by Harlan Page, Reuben A. Fowler, Finn & Jennings, Germantown Woodworking Company, John M. B. Morrow and the Reliance Manufacturing Company. The auditor dismissed all the exceptions in his final report. The court dismissed the exceptions and confirmed the auditor’s report.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p> <p>The mechanics’ lien act is constitutional and the title of the act sustains the thirteenth section: Com. v. Butler, 99 Pa. 535; Sugar Notch Borough, 192 Pa. 349; Likins’s Petition, 223 Pa. 456; Com. v. Charity Hospital, 198 Pa. 270; Blood v. Mercelliott, 53 Pa; 391; Com. v. Jones, 4 Pa. Superior Ct. 362:. Hays v. Cumberland County, 186 Pa. 109; Com. v. Moir, 199 Pa. 534; Com. v. Broad Street, etc., Ry. Co., 219 Pa. 11.</p> <p>Section 13 is not special legislation within the inhibition of art. III, sec. 7, of the constitution.</p> <p>Drastic and fantastic remedies unlike anything in the previous history of our' mechanic’s lien laws, and in no wise a proper feature of the system, will not be sustained: Henry Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486.</p> <p>The provisions of the Act of June 8, 1881, P. L. 56, and of the similar section of the act of 1901 have stood upon our books for thirty years. Within that time they have met with the entire acquiescence of the profession in their constitutionality.</p>

<p>Negligence — Railroads—Street crossing — Pedestrian—Engine running backwards — Signals—Contributory negligence — Case for jury.</p> <p>In an action against a railroad company to recover damages for the death of a pedestrian struck by a train on a public street crossing the case is for the jury where it appears that the engine was running backwards with a tender ahead, with a couple of small lights on the tender but no headlight, that the evening was dark and misty and the range of ■vision was limited, that cars standing near the crossing and an elevation in the ground covered with weeds obstructed the view in the direction of the approaching train, and where several witnesses listening for signals and in a position to hear, testify that no signals were given.</p>

<p>Appeal, No. 327, Jan. T., 1910, by John Cadwalader, executor of Elizabeth Hoge Pleasonton LaMothe, substituted appellant, from decree of O. C. Phila. Co., Jan. T., 1896, No. 322, now changed to No. 527, dismissing exceptions to adjudication in Estate of Elizabeth Pleasonton, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p> <p>— Where a guardian duly appointed by will or otherwise has ignored its duties and made payments to another acting as such under color of authority, such payments may be treated as a nullity: Reed v. Mellor, 122 Pa. 635; Hollingsworth’s App., 51 Pa. 518; Robinson v. Zollinger, 9 Watts, 169; Vanartsdalen v. Vanartsdalen, 14 Pa. 384.</p> <p>The question was not res adjudicata: Kinter’s App., 62 Pa. 318; McMahon’s Est., 14 W. N. C. 311.</p> <p>The cestui que trust was not guilty of laches: Gress’s App., 14 Pa. 463; Maulfair’s App., 110 Pa. 402; Fidelity Ins. Trust & Safe Deposit Co.’s App., 115 Pa. 157; Henry’s Est., 198 Pa. 382.</p> <p>— The payments to the guardian were proper and the adjudication of his account was conclusive of their propriety: Bentel’s Est., 33 Pitts. Leg. Journal, 177; Bayard v. Atkins, 10 Pa. 15.</p>

Appeal, No. 68, Jan. T., 1911, by plaintiff, from judgment of C. P. No. 3, Phila. Co., Sept. T., 1906, No. 2,280, on verdict for defendant in case of William J. Power, receiver of the real and personal estate of John Loughran, deceased, v. Catherine Grogan. Ejectment to try the title to house and lot at northeast corner of Fifteenth and Catherine streets, Philadelphia. Before McMichael, P. J. John Loughran died May 3, 1890, leaving a widow, Bridget, but no surviving issue.

Appeal, No. 47, Jan. T., 1911, by defendants, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1907, No. 130, for plaintiff on findings of the referee in case of The Imperial Rolling Screen Company v. Samuel Steinfeld and Leo Steinfeld,. trading as Steinfeld Bros. Assumpsit by foreign attachment to recover damages for breach of contract. The case was referred by agreement of the parties to Frank P. Prichard, Esq., as referee.

Appeal, No. 350, Jan. T., 1910, by plaintiff, from judgment of C. P. No. 1, Phila. County, June T., 1907, No. 2,297, refusing to take off nonsuit in case of Catharine Ferry v. Philadelphia Rapid Transit Company. Trespass to recover damages for death. Before Brégy, J. The facts appear in the opinion of the Supreme Court. The court below entered a compulsory nonsuit which it subsequently refused to take off.

Appeal, No. 80, Jan. T., 1911, by plaintiff, from order of C. P. No. 2, Phila. Co., March Term, 1905, No. 424, discharging rule for judgment for want of a sufficient affidavit of defense in case of Joseph A. Davis v. James B. Fleshman and Maurice H. Power, trading as J. B. Fleshman & Company. Assumpsit to recover $1,860 with interest from February 18, 1905.

<p>Criminal law — Murder—Trial—Jurors—Peremptory challenge — Time to challenge — Act of July 9,1901, P. L. 629.</p> <p>1. In Pennsylvania there is no established rule of general application regulating the time and order of challenging jurors. Rules of court, or the established practice in the different counties control the method of procedure. When the jurors are called singly the Act of July 9, 1901, P. L. 629, requires the right of peremptory challenging to be exercised before each juror is sworn, and failure to exercise the right has been held to be a waiver of it. The time of exercising this right of chailenge depends upon the rules of court, or upon the established practice in the jurisdiction in which the case is being tried. Ordinarily there can be no peremptory challenge after the juror has been accepted, but this rule is subject to modification where the juror has been inadvertently passed and upon cross-examination facts are developed and cause shown sufficient to satisfy the trial judge that in the exercise of sound discretion the challenge should be allowed.</p> <p>2. In the absence of a statute otherwise providing, or of a rule of court, or of an established practice, fixing a time and order for exercising the right of peremptory challenge in criminal cases, the appellate court will not declare error on appeal the action of the trial court in a murder trial in permitting the commonwealth to peremptorily challenge a juror after the juror had been examined in the first instance by the district attorney and turned over unchallenged to the defense, cross-examined and accepted by the latter, it appearing that upon the cross-examination by the defendant and re-examination by the cqmmonwealth new facts were developed, as a result of which the court below in the exercise of its discretion allowed the challenge.</p> <p>Criminal law — Murder—Evidence—Admission of letter written by another than defendant.</p> <p>3. In a murder trial, the trial court does not commit reversible error in admitting in evidence a letter written by a friend at the defendant's authorization and request for the purpose of securing the possession of damaging letters which the defendant had written to a third party.</p> <p>Evidence — Nonprofessional opinions — Murder trials — Sanity of defendant — Discretion of court — Conduct of accused after killing.</p> <p>4. The general rule is that the opinions of nonprofessional witnesses as to the sanity or insanity of a person are competent only when given in connection with the facts upon which such opinions are based.</p> <p>5. A trial judge in a murder case does not abuse his discretion in excluding the opinion of nonprofessional witnesses as to the soundness of mind of the accused where these witnesses can scarcely be said to have had such acquaintance with or knowledge of the accused at or before the killing as to enable them to form a correct judgment as to his mental state.</p> <p>6. Evidence of nonexpert witnesses is admissible in a murder trial on the part of the commonwealth when not offered for the purpose of expressing an opinion as to the sanity or insanity of the accused but to prove that the witnesses observed his conduct and appearance after the killing and saw nothing to indicate that he was of unsound mind.</p>

<p>Appeal, No. 303, Jan. T., 1911, by plaintiffs, from decree of C. P. Columbia Co., Sept. T., 1906, No. 2, dismissing bill in equity in case of Tillmon Rittenhouse et al. v. Peter H. Newhard.</p> <p>Bill in equity for an injunction. Before Evans, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>A preliminary injunction was issued which was subsequently dissolved and the bill dismissed.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 31, Jan. T., 1911, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1908, No. 293, on verdict for defendant by direction in case of Mary McManamon v. Township of Hanover. Trespass to recover damages for death. Before Ferris, J. • The facts appear in the opinion of the Supreme Court. The court directed a verdict for the defendant and judgment thereon. Plaintiff appealed.

Appeal, No. 50, Jan. T., 1911, by plaintiff, from order of C. P. Luzerne Co., Feb. T., 1910, No. 602, discharging rule for judgment in case of Olin F. Harvey, Jr., trustee, Dion Manufacturing Company, bankrupt, v. Joseph K. Weitzenkorn. Assumpsit on stock subscription. Before McClure, P. J., specially presiding. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 82, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., .Oct. Term, 1907, No. 1,026, on verdict for plaintiff in case of. Nelson Hoch v. Butler Township.</p> <p>Trespass to recover damages for personal injuries. Before Terry, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were various rulings of the court on evidence and refusal to give binding instructions for the defendant.</p>

Appeal, No. 91, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., June Term, 1907, No. 18, on verdict for plaintiff in case of Mary Smith, administratrix of Anthony Smith, deceased, and Mary Smith v. The Lehigh Valley Railroad Company. Trespass by Mary Smith, administratrix of the estate of Anthony W. Smith, deceased, and Mary Smith in her own right, against the Lehigh Valley Railroad Company.

<p>Sales — Personal property — Necessity for delivery — Written agreement of sale.</p> <p>In an action to recover on two promissory notes given by the defendant to the plaintiff in payment for a traction engine, wherein the defense is a failure of delivery, judgment is properly directed for the plaintiff where it appears that the engine belonged to the plaintiff and was in the possession of a lessee with power to purchase, that the lessee became financially involved and was in default in the payment of rent to the plaintiff, that he sold to the defendant all of his personal property and arranged with him for the transfer of the engine subject to the plaintiff’s right thereto, that an agreement was signed by the defendant and lessee and sent-to the plaintiff for acceptance, which provided, after a recital of the lease, the lessee’s inability to pay and that an arrangement had been made with the defendant to transfer the engine to him, that the defendant should “take possession of and purchase the said engine with attachments and fixtures as above described, taking the same where it is and as it is,” and give the plaintiff his notes in payment, and that, though there was no formal approval of the agreement by the plaintiff, the plaintiff had accepted defendant’s notes given in accordance therewith. Under such a written agreement of sale actual delivery of the engine was not necessary.</p>

Appeal, No. 6, Jan. T., 1911, by plaintiff, from judgment of C. P. Columbia Co., Dec. T., 1908, No. 34, for defendant non obstante veredicto in case of First National Bank of Bloomsburg v. Emanuel Gerli, administrator e. t. a. of the Estate of Joseph Ratti, deceased. Assumpsit to recover on a promissory note. Before McClure, P. J., specially presiding.

<p>Appeal, No. 51, Jan. T., 1911, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1909, No. 175, on verdict for plaintiffs in case of Daniel B. Fetterolf and Esther B. Fetterolf, his wife, v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict for Daniel B. Fetterolf for $1,000 and for his wife for $3,000, and judgment thereon. Defendant appealed.</p> <p>Errors assigned among others were in refusing binding instructions for defendant and refusal of judgment n. o. v.</p>

Appeal, No. 60, Jan. T., 1911, by defendant, from judgment of C. P. Columbia Co., Dec. T., 1909, No. 86, on verdict for plaintiff in case of Melvin A. Leitzell v. The Delaware, Lackawanna & Western Railroad Company. Trespass for personal injuries. Before Evans, P. J. Plaintiff was injured on August 26, 1909, while working as a brakeman on a freight train of the defendant railroad through the breaking of a board cover on a sluiceway crossing under the tracks.

Appeal, No. 197, Jan. T., 1910, by defendant, from judgment of C. P. Blair Co., March T., 1910, No. 517, on verdict for plaintiff in case of Mary A. Walsh v. Altoona & Logan Valley Electric Railway Company. Trespass to recover damages for personal injuries.

Appeal, No. 249, Jan. T., 1910, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1909, No. 10, on verdict for defendant in case of Orlena Moudy v. W. T. Bell, Allen S. Welch, Samuel Cremer, W. I. Stratford and Frank Keil. Trespass to real property and conversion of personalty.

<p>Beal estate — Deeds—Conveyance to husband and wife — Estate by entireties.</p> <p>1. A tenancy by entireties is one held by husband and wife by virtue of title acquired by them jointly after marriage.</p> <p>2. Where a father, by deed executed and delivered, conveys certain premises therein described to his daughter, “and her husband,” naming them, and in the receipt the father acknowledges to have received of the daughter and her husband $6,000, of which $3,700 is stated as representing the daughter’s interest in the father’s 'estate, the daughter and her husband take an estate in entireties and, if she dies before him, the husband takes the premises in fee simple.</p> <p>Appeals — Assignments of error — Bequest for findings — Exceptions.</p> <p>3. Assignments of error complaining of various rulings of the orphans’ court upon alleged requests for findings of fact and conclusions of law will not be considered where the record fails to show that any such requests were submitted to the court, or that there were any rulings upon, them, or any exceptions to any rulings.</p>

<p>Evidence — Competency of witness — Death of one party in interest— Ejectment — Defendant—Disclaimer—Act of May £3, 1887, P. L. 169— Treasurer’s deed — Proffer of taxes — Declarations—Party not in interest.</p> <p>1.- A codefendant in an action of ejectment who is called as a witness and complies with the conditions imposed by clause e, sec. 5, of the Act of May 23,1887, P. L. 159, by filing a disclaimer and securing the costs, is relieved from the disability imposed upon a surviving party having an interest adverse to that of a deceased party. The competency of such a witness does not depend upon his interest in the subject in controversy, but whether he has complied with the requirements of the act.</p> <p>2. Where an owner of unseated land calls upon the county treasurer, inquires for the taxes due on the land, and pays all the taxes demanded of him by the treasurer, he does all that is necessary to discharge the land from liability to sale, and a subsequent sale of the land for taxes which the treasurer omitted to demand passes no title.</p> <p>3. A treasurer’s deed does not give purchasers at a tax sale constructive possession of the premises sold where the sale was wholly void.</p> <p>4. The acceptance of service by defendant’s counsel in an action of ejectment is in effect the same as if the defendant had been personally served by the sheriff, and is therefore prima facie evidence of the defendant’s possession of the premises in dispute.</p> <p>5. In an action of ejectment one of the defendants, formerly owner of an undivided half interest in the premises, was permitted to withdraw his plea of “not guilty” and to file a disclaimer of title and a bond to secure the payment of costs. It appeared that he had previously conveyed his undivided half interest in the premises to the other defendant by a general warranty deed. On the trial the plaintiffs showed title out of the commonwealth, the assessment and levy of taxes on the land in dispute, the return for the nonpayment of the taxes, and the subsequent sale and delivery of the treasurer’s deed to one of the plaintiffs and to the predecessor in title of the others. The defendant, who was prima facie in possession, for the purpose of invalidating the treasurer’s deed, called the person who had disclaimed, and who testified under objection, that previous to the tax sale he had called at the office of the county treasurer and asked for the taxes due upon the land in dispute, which was then owned by himself and defendant; that the treasurer furnished him the amount which he said was due for taxes on this land, and that the witness then gave the treasurer a check for the money which he demanded. Plaintiffs contended that the witness was adversely interested by reason of the fact that in the event of a recovery by the plaintiffs he would be liable on his clause of general warranty in its conveyance to the defendant and was incompetent to testify by reason of the death of one of the grantees under the treasurer’s deed, whose right or interest in the property had passed to his devisees who were on the record as plaintiffs. Held, that under the act of 1887 the witness was competent.</p> <p>6. In such a case the fact that the county treasurer was dead did not make the witness incompetent, as the treasurer was simply the agent and acting for the county, and his estate was not interested in the cause nor was it represented by any party to the record; nor could the plaintiffs show the declarations of the treasurer in regard to what took place between him and the witness, made to a stranger to the title, not in the latter’s presence, at a time subsequent to the interview at which the taxes were demanded and paid, such declarations being no part of the record, but simply ex parte and self-serving, and not admissible to contradict the witness’s testimony as to what had previously occurred between him and the treasurer.</p> <p>Deeds — Recitals—Conveyance to “company.”</p> <p>7. In an action of ejectment a deed in the chain of title of the defendant containing a recital disclosing the fact that the grantors had previously conveyed the premises to a certain American Stave & Timber Company was admitted in evidence under objection. There was nothing in the record to show that this company was incorporated, or, aside from the recitals in the deed, whether it was a partnership or an incorporated association. Held, that this recited conveyance did not vest the legal title to the land therein described in the company, because it had had no such legal existence as would entitle it to be a grantee in a deed of real estate; and that the subsequent deed was properly admitted in evidence.</p>

<p>Appeal, No. 323, Jan. T., 1910, by defendants, from decree of C. P. Huntingdon Co., in equity, Dec. T., 1909, No. 159, granting injunction in case of Sidney T. Isett v. William E. Meehan, Commissioner of Fisheries, William E. Meehan, individually, William Hass, John Miller, William Miller, Scott Meyer, Jacob Harpster and Sidney Barrick.</p> <p>, Bill in equity for an injunction. Before Woods, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned was decree of court’.</p> <p>— The State had the right to use any portion of the waters of Spruce creek; that were.conveyed to her in the Isett deed, in supplying the natural wants of her fish hatchery: Filbert v. Dechert, 22 Pa. Superior Ct. 362.</p> <p>It is submitted that the exact question in this case was decided by this court in Conneaut Lake Ice Co. v. Quigley, 225 Pa. 605.</p> <p>The commonwealth of Pennsylvania cannot be. made a defendant in a suit in equity: Williamsport & Elmira R. R. Co. v. Com., 33 Pa. 288.</p>

<p>Trespass — Cause of action — Public policy — Privilege of witnesses.</p> <p>1. No civil action for damages can be maintained for alleged false testimony given on the witness stand. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint excepting that imposed by the penalty for perjury.</p> <p>Practice, C. P. — Pleading—Plea in bar treated as a demurrer.</p> <p>2. A judgment entered for defendant in his plea in bar, which was treated as a demurrer to plaintiff’s statement without objection from the plaintiff, will not be disturbed because the plea was not disposed of according to the usual rules of pleading.</p>

<p>Negligence — Owner of building — Workman employed on premises— Safe means of ingress — Stairways—Fire escape.</p> <p>1. It is the rule that the owner of property owes to an independent contractor and his servants at work thereon the duty of exercising reasonable care to have the premises in a safe condition for the work, unless the defects responsible"for the injury were known to the contractor. The owner is not charged with the absolute duty of having the premises safe; his duty is discharged by the exercise of reasonable care. All the authorities agree that it is incumbent upon the owner of premises upon which persons come by invitation, express or implied, to maintain such premises in a reasonably safe condition for the contemplated uses thereof and the purposes for which the invitation was extended.</p> <p>2. In an action for damages sustained by reason of a defect in the outside fire escape of defendant company’s building the case is for the jury and a verdict for plaintiff will be sustained where it appears that the plaintiff, a tinner and a roofer, was working on the building as the employee of a contractor who was engaged to copper flash the roof of the building; that there were three ways of gaining access to the roof, by elevator, by the inside stairway and by the fire escape; that shortly after the work began the vice president of the defendant company gave directions that the workmen should not go through the building but should use the fire escape to reach the roof; that the plaintiff in discharge of his duties had occasion to descend and while on the fire escape one of the platforms gave way beneath him and he fell and was injured; there being no evidence of any inspection of the fire escape, and one witness positively testifying that the accident was due to defective construction, which would have appeared had there been a proper examination or inspection: Hotchkin v. Erdrich, 214 Pa. 460, distinguished.</p> <p>■ 3. In such a case proffers of proof are properly excluded as irrelevant and immaterial where the one goes no further than to show that the plaintiff was inside the building after the direction to use the fire escape and the other to show that the plaintiff’s employer had notice and intended to give warning of the dangerous character of the fire escape.</p> <p>4. The fact that the plaintiff used the elevator or stairway at times in disregard of orders did not affect his right to rely upon the fire escape being in a proper condition when he was ordered to use it.</p> <p>Negligence — Fire escape — Inspection—Presumptions—Act of May 2, 1905, sec. 22, P. L. 352.</p> <p>5. In an action against the owner of a building to recover damages for personal injuries resulting from an alleged defective fire escape, it will not be presumed, because the Act of May 2,1905, sec. 22, P. L. 352, provides for an inspection of fire escapes that defendant had complied with the law, where there is no evidence whatever of any such inspection, and there is positive proof that the accident would not have happened if there had been a proper inspection.</p> <p>Appeals — Assignments of error — Misquotation of testimony — Failure to instruct — Duty of counsel.</p> <p>' 6. An alleged misquotation of testimony by the trial judge in his charge in a negligence case is not properly assignable for error where it was not brought to the court’s attention before the jury retired.</p> <p>7. In such a case the fact that the court failed to give the jury certain instructions, as for instance in guarding the effect of the Carlisle Tables as evidence by directing the jury’s attention to- the circumstances affecting the duration of the life in question, will not constitute reversible error where counsel fail to make any request upon trial for such instructions, or to call the court’s attention to the omission so to instruct.</p>

<p>Lease — Oil lease — Reservation—Written instrument — Specific averment of violation — Equity.</p> <p>1. Certain land was let to defendant for oil development under a written lease, which described the property as follows: “All that tract of land situate in the Township of Kiskiminetas, County of Armstrong, Pennsylvania, bounded North by lands of Apollo Borough and Public Road; East by lands of William McKinstry et al.; South by lands of William McKinstry et al.; West by lands of Apollo Borough et al.; being all of said farm with the exception of 50 acres, being the northwestern portion thereof, containing one hundred and fifty-three acres, more or less.” Under this lease defendant proceeded to drill a well in the southwestern portion of the tract, which operation the owner sought to enjoin, alleging that the well was within the fifty acres excepted from the demised land. Held, that the written instrument plainly by the ordinary rules of construction excepts the northwestern fifty acres, inasmuch as the phrase “being in the northwestern portion thereof,” refers to its immediate antecedent, the excepted “ 50 acres.”</p> <p>2. Where in such a case the lease also contains the provision “All wells must be located at point satisfactory to both parties,” but the only violation of the lease, or dissatisfaction averred in the bill manifestly refers to the wrongful drilling of a well “upon the tract . . . . reserved .... under the lease,” an indefinite, unexplained and perhaps arbitrary dissatisfaction, not specifically averred in the bill, cannot be relied upon to convict a chancellor of error in refusing an injunction.</p>

<p>Equity — Jurisdiction—Municipal corporations — Water company— Contract to sell plant — Adequate remedy at law — Mandamus—Act of June 7, 1907, P. L. 440.</p> <p>1. A court of equity is without jurisdiction in a case where a municipal corporation seeks to compel a water supply company to sell its plant under a special contract and to render a statement of the cost of erecting and maintaining its works.' The appropriate remedy in such a case is at common law by mandamus.</p> <p>2. Such a case is not within the purview of Act of June 7,1907, P. L. 440, where the appeal is by the plaintiff and the contention that “suit should have been brought at law” is not raised and where furthermore the question is not whether the decree shall be reversed or set aside, but simply whether the appeal shall be dismissed. Under these circumstances a dismissal of the bill will -.not be disturbed. Williams-port v. Citizens’ Water & Gas Co., ante, p. 232, distinguished.</p> <p>Municipalities — Boroughs—Ordinance—Option to buy — Construction —Acceptance of ordinance — Charter rights — Act of April 29,1874, P- L-78.</p> <p>3. A borough ordinance, passed for the purpose of giving a franchise to a certain party to enter upon the streets and highways of the borough for the purpose of supplying water to the borough and its inhabitants, provided as follows: “That the said borough of New Cumberland shall have the option before all other persons or corporations to purchase the complete and entire plant of the said H. M. Horner at the end of ten (10) years, as provided for by the existing laws of the state of Pennsylvania, and if no purchase is made by the borough at the end of ten years, then this ordinance is to remain in full force until waterworks are purchased by the said borough.” Held, as the opinion of the Supreme Court although not involved in the decision of the case that the words used mean that the borough shall have the right to acquire the water plant upon the terms provided in the Act of April 29, 1874, P. L. 73, at any time after ten years, instead of “at any time after twenty years” as fixed in the statutes.</p> <p>4. If companies incorporated after the date of such an ordinance, assignees of the privileges which were passed for the benefit of one of the companies in anticipation of its incorporation, have accepted and assumed the benefits and obligations of the ordinance and installed a plant thereunder, they are presumably subject to and bound by its provisions, even though they had a charter right under the Act of April 29, 1874, P. L. 73, to enter the borough and install their plant.</p>

<p>Appeal, No. 94, Jan. T., 1911, by plaintiff, from decree of C. P. Cumberland Co., in equity, Oct. T., 1910, No. 2, dismissing bill in case of Borough of New Cumberland v. Riverton Consolidated Water Company.</p> <p>Bill in equity for an injunction to restrain the defendant company from entering upon the streets and highways of the plaintiff borough and constructing thereon without its consent the water line referred to in the opinion below.</p> <p>The following excerpts from the opinion of the court below state the facts material to this report: “The borough of New Cumberland is the plaintiff .... ,while the defendant is a water company organized by the merger of six other corporations, one of them being the Mountain Water Company, and which was incorporated under the general laws of the commonwealth on February 15, 1896. The complaint of the plaintiff is in substance that ■ the defendant supplies .... other places with water, and for the purpose of supplying such other municipalities and places outside of the borough of New Cumberland have constucted or are in process of constructing a filtering plant on the banks of the Yellow Breeches Creek . . . . outside of the limits of the borough of New Cumberland, and that for the purpose of conveying the filtered water from the above mentioned filtering plant to the consumers northward and outside of the borough of New Cumberland the said company proposes and have surveyed and made plans and commenced to dig and install a main water line from said filtration plant to the consumers of said company outside of the borough of New Cumberland, within the borough limits, without the consent of said borough; that said work has just started at the corner of Second and Geary streets within said borough, and the defendant has declared its purpose to be to convey said main supply water line, through the said borough upon the line of said Geary street for a distance of about twelve hundred feet — the size of said pipe to be from twelve to sixteen inches in diameter — this being done without the consent of the borough authorities and against their protest. ... It is also averred that the Mountain Water Company supplies water under an ordinance passed by the borough of New Cumberland on January 20, 1896, and is bound by its provisions. The prayer is that the company defendant may be enjoined from digging trenches and laying water pipes on Geary street, or other streets and highways of the borough, and it be decreed that it has no authority so to do. . . .</p> <p>“The allegation in the bill that the pipe line proposed to be laid is solely for the conveyance of water to localities outside of and beyond the borough of New Cumberland was not supported at the hearing .... but the contrary was clearly shown, and not contradicted. . . . The general manager testified that ‘the purpose is to supply not only the territory north of New Cumberland, but also to supply a circulating system in New Cumberland, and to increase its pressure.’ Richwine, secretary and treasurer of the defendant company, testified that ‘the object of the company was to give a larger supply of water for fire protection;’ that what was proposed to be installed ‘was a grid-iron system, a cross system, connecting each pipe line, so as to give a certain flow, and so there will be no dead ends; so the water will flow through all the pipes of the system — a cross connection of each pipe line with the other.’ . . . The defendant is erecting a station and filter plant .... and other improvements to its system involving necessarily a very large outlay of money, and testimony was offered to show that one of the incentives to do this was that there had been complaint by citizens of New Cumberland as to the water supply . . . .; that by the laying of the proposed new and larger pipe, and making connections with those formerly laid it will give the circulation required to prevent water from becoming stagnant in the 'dead ends/ which has heretofore obtained in the existing system of distribution; also that by means of this new pipe line, and the proposed connections, the company will be enabled to give New Cumberland and the other communities which it serves a much more abundant supply, and that of pure filtered water, and a pressure much more serviceable for fire purposes, as already stated. It was also shown .... that the establishment of the pumping station and purification works, the laying of a new force main from there to a new reservoir north of White Hill, and the laying of additional street mains in White Hill, Lemoyne and New Cumberland were submitted to Samuel G. Dixon, commissioner of health of the commonwealth, and were approved by him, and permits given to the company defendant .... to make the proposed additions and changes to its system, under the powers conferred upon him by the provisions of an Act of assembly approved April 22, 1905, P. L. 260.</p> <p>''The defendant insists, and we think with some force, that these permits of the commissioner of health should be regarded under the powers conferred upon him by the Act of assembly of April 22, 1905, P. L. 260, in the nature of orders or decrees, which were obligatory upon the company, and which it could not disregard; but even if they, be not regarded as legally enforceable, yet it cannot in any aspect of the case be treated otherwise than as most influential in determining whether the plans which the defendant seeks to carry into execution are wise and justifiable or not. It was also urged that the ordinance of January 20, 1896, given to Horner and assigned to the Mountain Water Company, authorizes the entry upon the streets and alleys of the borough.</p> <p>''After hearing and giving due consideration to what has appeared before us, we have been unable to discover that there is any valid or reasonable objection to the carrying out of its plans by defendant. Indeed, on the other hand, what is proposed seems to promise beneficial results. The borough of New Cumberland will have a larger and an abundant water supply to draw from. To that from the springs and runs in York County will be added pure filtered water from an inexhaustible source; circulation will be insured in the pipes and stagnation, with consequent deterioration avoided, while the additional pressure provided will render it more serviceable in case of fire, and insure better protection. As a matter of course, the ditches dug in which to lay pipes, will be filled up, and the streets put in equally as good condition for public travel as they were before being entered upon by the defendant. We are, therefore, of the opinion that the plaintiff is not entitled to the relief sought by it in this bill.”</p> <p>The bill was dismissed, after a hearing on the merits, and the plaintiff appealed.</p> <p>Errors assigned were answers to requests for findings, rulings on prayers for the withdrawal of testimony and on the admission of evidence, and the decree dismissing the bill.</p> <p>— In the absence of any legislative right in the defendant to enter upon and occupy the streets of the borough complainant with a water main "to carry water supply to outside municipalities not included in the Mountain Water Company charter, the defendant cannot do so without the consent of the said borough.</p> <p>— Gas and water companies are not required to obtain permission of a borough to lay pipes in its streets: Dorrence v. Bristol Boro., 224 Pa. 464; Shryock v. North Braddock Boro., 43 Pa. Superior Ct. 508.</p> <p>The merged company has the powers of each of the constituent companies: Chester County Gas Co. v. Gas & Electric Co., 16 Pa. Dist. Rep. 214.</p> <p>The orders of the department of health were mandatory.</p>

<p>Election law — Improper marking of ballot — Act of April 29, 1903, P. L. 338.</p> <p>At a municipal election held February 15, 1910, a ballot was cast containing a cross mark in the democratic square, indicating a vote for all the candidates of that party, including one for the office of school director. The ballot also contained a mark to the right of the name of another person that had-been written into the ballot as a candidate for school director. Held, that under the Act of April 29, 1903, P. L. 338, as under the election Act of June 10,1893, P. L. 419, which it amended, the entire ballot was illegal: Newberry Township Election, 187 Pa. 297, followed.</p> <p>The use of the word “may” in the Act of April 29,1903, P. L. 338, instead of the word “shall” in sec. 22, of the amended act of June 10, 1893, P. L. 419, does not change the law giving to a voter a choice of methods in the preparation of his ballot.</p>

<p>Appeal, No. 300, Jan. T., 1910, by defendants, from decree of C. P. Cumberland Co., in Equity, March T., 1909, No. 2, granting injunction in case of Mervin Eckels et al. v. Walter Weibley and Joseph Cockley.</p> <p>Bill in equity to restrain a threatened nuisance. Before Swope, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned among others was in the decree of the court.</p> <p>— The general rule of law is that equity has jurisdiction to restrain the creation and continuance of a private nuisance if the rights of a suitor are clear and certain; but an injunction will not be granted until- the facts are established by the verdict of a jury, if they are disputed: Woodroffe v. Hagerty, 35 Pa. Superior Ct. 576; Baer v. Wilmoth, 39 Pa. Superior Ct. 74; New Castle v. Raney et al., 130 Pa. 546; Mowday v. Moore, 133 Pa. 598; Rhea v. Forsyth, 37 Pa. 503; Wood v. McGrath, 150 Pa. 451.</p> <p>That a stable will prove a nuisance is not to be presumed and consequently an injunction will not lie to restrain its erection: Evans v. Fertilizing Co., 160 Pa. 209; Fischer v. Sanford, 12 Pa. Superior Ct. 435; Alexander v. Stewart Bread Co., 21 Pa. Superior Ct. 526; Oehler v. Levy, 234 Ill. 595 [85 N. E. Repr. 271, 17 L. R. A. (N. S.) 1025].</p> <p>When the bill is to enjoin a threatened, as distinguished from an existing nuisance, from the nature of the case requirement of a previous trial at law cannot be applied: Sterling v. Littlefield, 97 Maine, 479 (54 Atl. Repr. 1108); McArthur v. Kelly, 5 Ohio, 139; Wente v. Commonwealth Fuel Co., 232 Ill. 526 (83 N. E. Repr. 1049); Commonwealth v. Stevens, 178 Pa. 543; United States v. Luce, 141 Fed. Repr. 385; Wahle v. Reinbach, 76 Ill. 322;</p>

<p>Water company — Increase of rates — Contract—Equity—Findings of fact — Dismissal of bill — Municipality—Equity.</p> <p>A bill in equity to restrain a water company from instituting a new scale of rates on the ground that the defendant is exacting unreasonable, extortionate and discriminating charges for the supply of water and that in raising the rates it was violating a contract made by the borough with the party under whom it claims, is properly dismissed where there is no testimony whatever in support of the allegations of extortion and discrimination and the court finds that the evidence is insufficient to justify the conclusion that there had been a violation of the contract set up.</p>

Appeal, No. 69, Jan. T., 1911, by defendant, from, judgment of C. P. Erie Co., May T., 1909, No. 106, on verdict for plaintiff in case of T. J. Rick v. The New York, Chicago & St. Louis Railroad Company. Trespass for personal injuries. The opinion of the Supreme Court states the case. The defendant presented certain points, which with the answers of the court thereto were as follows; 6.

<p>Appeal, No. 99, Jan. T., 1911, by defendants, from order of C. P. Erie Co., Sept. T., 1909, No. 132, awarding distribution of fund in case of George W. Evans, Trustee of Miss S. M. Keith, v. Marion E. Loomis, A. T. Loomis and D. W. Harper and James Russell, Trustees, Terre-Tenants.</p> <p>Scire facias sur mortgage.</p> <p>Trial by the court to determine the rights of the parties to a fund paid into court on the satisfaction of a mortgage.</p> <p>The court below found the following facts: (1) The Erie Cork Works, the name of which was changed to Erie Rubber Works, was a corporation located at Erie, Pa.; (2) prior to December 19, 1905, George W. Evans and B. B. Brown were stockholders in said corporation, and on that day, they sold their stock to the defendants, Marion E. Loomis and A. T. Loomis, her husband, or to one of them; (3) at that time said Evans and Brown were sureties for the Erie Cork Works on a $2,000 note held by Miss Sarah Keith; and it was then agreed that they would remain liable thereon, or on any renewals thereof, for two years; in consideration of which, said Marion E. Loomis and her said husband gave a bond and mortgage to said George W. Evans, as trustee, in the penal sum of $4,000, conditioned in substance, that the said Erie Cork Works or the obligors in said bond and mortgage, would pay the said $2,000 -note on or before the termination of said two years, and save harmless, the said Evans and Brown. The bond and mortgage recited said note, and the agreement of Brown and Evans so to remain sureties thereon, and further that the parties of the first part .... stood bound unto the party of the second part in the sum of $4,000, conditioned for the payment of $2,000, interest and damages, in manner following, to wit: "Whereas the Erie Cork Works, of Erie, Pa., is indebted to Miss Sarah Keith, of Girard, Pa., upon a certain note in the sum of two thousand dollars ($2,000), with interest thereon from the date of said note; and whereas aforesaid George W. Evans, together with B. B. Brown, both of the city of Erie, Pa., are liable as sureties on said note for a period of two years from the maturity of the same, or upon any renewal thereof for the same period or upon any obligation that it may be necessary for said Erie Cork Works to give for the purpose of raising money with which to pay said note, in the event that said Sarah Keith requires the same to be paid; now, if the said Erie Cork Works or the parties of the first part hereto shall pay the said obligation or obligations on or before the termination of the said period of two years and shall save and keep harmless the said George W. Evans and the said B. B. Brown from any and all loss or damage resulting to them by reason of the liability incurred by them as aforesaid, without fraud or further delay, then this obligation to be void and of none effect, or else to be and remain in full force and virtue;” (4) said cork works became bankrupt and a distribution of its assets paid $360.80 to apply on said debt as of September 1, 1909, and the balance remains unpaid; (5) on May 29, 1908, the holder of the $2,000 note made the following indorsement thereon: “For value received I hereby release Geo. W. Evans and B. B. Brown from any responsibility on this note as indorser or maker of the same. Miss S. M. Keith;” (6) the only consideration for the release was the assignment of the bond and mortgage. The note on which said release was written, was never delivered to Evans or Brown, but has continued in the possession of Miss Keith; (7) on February 1, 1908, the Erie Rubber Works, as collateral to the said note of $2,000, gave another note to Miss Keith, for a like amount, with William C. Kraemer as surety; “but that had nothing to do with the said release written afterwards on the (original) note, as above stated, or with the assignment to , her of said bond and mortgage;” (8) no actual consideration was paid by Evans or Brown to Miss Keith for the release to them, excepting the assignment of said bond and ■mortgage; (9) Brown and Evans were not indebted to Miss Keith in any sum whatever at the time the note was given to her by the cork works; but were only liable as indorsers on the note in question; (10) at the time the said note was given Brown and Evans were not indebted to the cork works in any sum whatever, as principal debtors, but became liable as indorsers on the note for the accommodation of said corporation; (11) A. T. Loomis and Marion E. Loomis were not indebted to the Erie Cork Works in any sum whatever on December 19, 1905, the time of the execution of the bond and mortgage to George W. Evans, trustee; (12) no part of the note was ever paid, except the sum of $360.80, which was paid by the receiver of the Erie Rubber Works as a final and only dividend from the assets of the corporation, which is insolvent and without further assets.</p> <p>The court ordered that the plaintiff should be paid the balance of the $2,000 note, with interest thereon, out of the fund in court, and that the surplus of the fund, if any, was to be paid to the defendants.</p> <p>Errors assigned were in refusing defendant’s requests for findings, affirming plaintiff’s requests, findings of fact made by the court, conclusions of law, and awarding the fund to plaintiff.</p> <p>— We suggest that there is no rule of law that will compel the sureties to pay the debt of a principal after the principal has been discharged from liability by his creditors: Miller v. Stewart, 22 U. S. 680; Bensinger v. Wren, 100 Pa. 500; Hutchinson v. Woodwell, 107 Pa. 509; Whelen v. Boyd, 114 Pa. 228; Valentine v. Wheeler, 122 Mass. 566; Donely v. Bank, 40 Ohio, 47.</p> <p>A contract of indemnity inures to the benefit of the indemnitee only, and a third person having a right of action, or a claim against the indemnitee, cannot proceed directly against the indemnitor, though the claim be such as the indemnity contract will apply to save the indemnitee harmless from: Turk v. Ridge, 41 N. Y. 201; French v. Vix, 143 N. Y. 90 (37 N. E. Repr. 612); Union Nat. Bank v. Rich, 106 Mich. 319 (64 N. W. Repr. 339).</p> <p>— Extinguishment of a debt by substituting another one for it, is always a question of intention: Potter & Colfelt v. McCoy, 26 Pa. 458.</p> <p>A creditor may hold an unlimited number of collaterals, and avail himself of any as long as the debt is unpaid: Ayers v. Wattson, 57 Pa. 360; Jennings v. Loeffler, 184 Pa. 318; Ritter v. Henning, 10 Pa. Superior Ct. 458; Brackenbridge v. Cummings, 18 Pa. Superior Ct. 64.</p> <p>A release of a debt, not under seal, requires proof of consideration to make it valid and binding on the releasor: Kidder v. Kidder, 33 Pa. 268; Trough’s Est., 75 Pa. 115; Erb v. Brown, 69 Pa. 216.</p> <p>The so-called release of Evans and Brown is not valid as a gift for want of delivery: Kidder v. Kidder, 33 Pa. 268.</p> <p>It has been well settled that where a creditor extends the time of payment on a debt, without the consent of the surety, and at the same time reserves his rights against the surety, the surety is not released: Hagey v. Hill, 75 Pa. 108; Calvert v. Good, 95 Pa. 65.</p>

<p>Appeals, Nos. 13 and 16, Oct. Term, 1911, by Emma Kleinman and Edward C. Klein-man, separately, from decree of C. P. No. 4, Allegheny County, Third Term, 1909, No. 851, setting aside conveyance of real estate in case of Ferd H. Phillips, Trustee of Estate of Edward Clarence Kleinman, bankrupt, v. Emma Kleinman, Edward Clarence Kleinman and Thomas F. Garrahan.</p> <p>Bill in equity to have a conveyance of real estate set aside as being in fraud of creditors. Before Swearingen, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Errors assigned were in certain findings of fact, in refusing certain points, and the decree of the court.</p> <p>— The facts found by the court, or established by the uncontradicted evidence of the case establish a resulting trust in favor of Emma Kleinman: Rupp’s App., 100 Pa. 531; Bigley v. Jones, 114 Pa. 510; Olinger v. Shultz, 183 Pa. 469; Feig v. Meyers, 102 Pa. 10; Lynch v. Cox, 23 Pa. 265; Galbraith v. Galbraith, 190 Pa. 225; Casciola v. Donatelli, 218 Pa. 624.</p> <p>— 'There never was a resulting trust, as the title to the land in dispute was not put in Kleinman’s name originally in breach of any agreement, duty or trust, to put in Mrs. Kleinman’s name, but on the contrary in pursuance of an express agreement, that the title should be taken in his own name: Byers v. Ferner, 216 Pa. 233; Crawford v. Thompson, 142 Pa. 551; Cornman’s Est., 197 Pa. 125; Heiges v. Pifer, 224 Pa. 628.</p> <p>Emma. Kleinman is barred by laches and estoppel and by the statute of limitation from setting up the trust: Hinman v. Silcox, 91 Md. 576 (46 Atl. Repr. 1017); Humes v. Scruggs, 94 U. S. 22; Kreider’s Est., 212 Pa. 587; Olinger v. Shultz, 183 Pa. 469; Miller v. Baker, 160 Pa. 172.</p>

Appeal, No. 200, Jan. T., 1910, by defendants, from judgment of C. P. McKean Co., June T., 1907, No. 63, on verdict for plaintiff in case of Citizens’ Gas Company of Port Allegheny v. B. L. Whitney and Bradford Gas Company. Ejectment for land in Annin township.

Appeal No. 301, Jan. T., 1910, by plaintiff, from judgment of C. P. McKean Co., June T., 1908, No. 244, on verdict for defendant in case of William Bovaird, Jr., v. City of Bradford. Assumpsit for clerk’s salary under ordinance of city of Bradford. Before Bouton, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 89, Jan. T., 1911, by defendant, from judgment of C. P. Warren Co., Sept. Term, 1910, No. 7, on verdict for plaintiff in case of William Kitchen v. Pennsylvania Railroad Company.</p> <p>Trespass for personal injuries. Before Hinckley, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $3,850. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s point for binding instructions.</p>

Appeal, No. 90, Jan. T., 1911, by defendants, from decree of C. P. No. 2, Phila. Co., Dec. T., 1910, No. 2,123, in case of Howard I. Ireland v. Ireland Advertising Agency, Bertha D. Ireland and Howard M. Donovan. Bill in equity to declare a trust ex maleficio, to annul a contract, for an injunction and an account. Before Wilt-bank, J. The opinion of the Supreme Court states the case. Errors assigned were in certain findings of fact, and the decree of the court.

<p>Murder — Charge—Expression of court’s opinion in the evidence-r-Leaving jury free to act — ■Practice, O. T.</p> <p>1. It is the undoubted right of a judge and often it is his duty to express to the jury his opinion of the weight and the effect of the evidence. The only limitation of the right is that there must be sufficient ground for his statement and that it is not made as a binding direction, but leaves the jury free to act.</p> <p>2. In a trial upon an indictment for murder the case will not be remanded for new trial after a verdict of guilty of murder of the first degree because of an expression of the court’s opinion, possibly at variance with the aspect of the testimony most favorable to the defendant, in a charge which clearly and accurately defined the different degrees of murder, manslaughter and the right of self-defense, and which affirmed without qualification the defendant’s points covering every feature of the ease favorable to him, where the opinion expressed by the court is warranted by the defendant’s ovim account of the occur.rence, and because of the abundant caution repeated in the charge the jurors must have understood that they were entirely free to form their own judgment.</p>

Appeals, Nos. 75 and 76, Jan. T., 1911, by plaintiffs, from decree of C. P. No. 5, Phila. Co., Sept. T., 1904, No. 1,224, dismissing bill in equity in case of Isador M. Gould and Alonzo Bell, Administrator of the Estate of Mary C. Bell, deceased, v. Harry L. Randal. Bill in equity to open judgment entered on a bond and warrant accompanying a judgment, etc. Before Martin, P. J. The opinion of the Supreme Court states the case. The court dismissed the bill. Plaintiffs appealed.

Appeal, No. 37, Oct. T., 1911, by Ida Reamer Ambrose for herself, and as committee, etc., from decree of C. P. Somerset Co., Equity Docket, 1907, No. 7, making partition in case of E. Lawrence King and Alexander King, Jr., v. Ida Reamer Ambrose, for herself and as committee of Mary Kerns Reamer. Bill in equity for partition of lands in Somerset and Bedford counties. Before Koosee, P. J. The facts appear in the opinion of the Supreme Court.

<p>Ejectment — Deed—Fraud—Principal and agent — One of two innocent parties — Misstatement of rule — Charge.</p> <p>1. In an ejectment suit in which the plaintiff claims under a deed alleged to have been signed by the defendant, which the latter denies, the court is not warranted in applying in its charge the rule that when one of two equally innocent parties must suffer by reason of the fraud of another, the loss should fall upon the one whose negligent act or omission has enabled the wrongdoer to commit the fraud, where the evidence shows that if fraud was committed, the only parties to it were the defendant’s brother, with whom she had left her deed for the sole purpose of enabling him to collect the rents for her, and a woman who represented herself as the defendant, there being no evidence of any agency and no act or omission on the defendant’s part enabling the brother to deceive the plaintiff.</p> <p>2. For the court in such a case to say that if one of two innocent parties must suffer loss, the loss must be borne by the one least to blame and it was for the jury to determine which of the parties to the action was least to blame and to find the verdict accordingly, is to state the above rule inaccurately.</p> <p>Principal and agent — Deed—Collection of rents — Implied agency.</p> <p>3. No agency can be implied in a brother to make sale of his sister’s real estate from the fact that the brother had in his possession the deed and had collected the rents from the real estate.</p>

Appeal, No. 150, Jan. T., 1910, by plaintiff, from judgment of C. P. Fayette Co., Dec. T., 1908, No. 238, for defendant n. o. v. in case of Leslie A. Howard v. Anna M. Stillwagon et al. Assumpsit for purchase money paid under a rescinded contract of sale.' Before Umbel, P. J. The facts are stated in the opinion of the Supreme Court. At the trial the jury returned a verdict for the plaintiff for $3,078.60.

Appeal, No. 21, Jan. T., 1911, by defendant, from judgment of C. P. Mifflin Co., Aug. Term, 1909, No. 80, on verdict for plaintiff in case of Elizabeth V. Bollinger v. Crystal Sand Company. Trespass to recover damages for death of plaintiff’s husband. Before Shull, P. J., specially presiding. The opinion of the Supreme Court states the case. Verdict and judgment for plaintiff for $2,000. Defendant appealed.

<p>Appeal, No. 25, Jan. T., 1911, by defendants, from decree of C. P. Fayette Co., No. 578, in equity, granting permanent injunction in case of John S. Griffiths v. Monongahela Railroad Company, a corporation, and M. J. McMename and L. F. Sims, partners doing business as McMename & Sims.</p> <p>Bill in equity to restrain diversion of a water course. Before Van Swearingen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was, among others, the decree of the court.</p>

Appeal, No. 98, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., Oct. Term, 1908, No. 1,194, on verdict for plaintiff in case of W. H. Shepherd & Sons v. First National Bank of Wilkes-Barre. Assumpsit to recover the balance alleged to be due on a building contract. Before Garman, J. The facts are stated in the opinion of the Supreme Court.