Volume 233 — Pennsylvania State Reports

<p>Taxation — Classification of territory — Appeals—Philadelphia—Act of March 24, 1868, P. L. 448.</p> <p>Under the Act of March 24, 1868, P. L. 443, relating to the taxation of real estate in Philadelphia county, no appeal lies from the action of the board of revision of taxes classifying the territory or district in which-real estate is located. An appeal lies to the common pleas from an assessment or valuation, but not from classification.</p>

Appeal, No. 42, Jan. T., 1911, by defendant, from judgment of O. & T. Phila. Co., Nov. Sessions, 1909, No. 213, on verdict of guilty of murder of the first degree in case of Commonwealth v. Michael Comporto. Indictment for murder. Before Carr, J. The facts are stated in the opinion of the Supreme Court. Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed. Errors assigned were in the following form: 1.

<p>Criminal law — Murder—Insanity—Evidence—Presumption of sanity — Preponderation of evidence.</p> <p>1. Evidence of insanity set up in defense of one charged with a crime must be preponderating when weighed against the presumption of sanity and the evidence of the commonwealth in support of it.</p> <p>2. In a murder case the trial judge cannot be convicted of error in charging as follows: "It is the duty of the prisoner, or some one in his behalf, his counsel, to satisfy you by evidence and by appropriate argument that this man was in such a state of mind at the time the act was committed that he is not to be held responsible for what he did. He is bound to show you by such amount of evidence, a preponderating amount of evidence, that is, an overbalancing amount of evidence, when taken in connection with the evidence on the other side and taken in connection with the presumption of sanity, as will satisfy you, as reasonable men, as intelligent men, that this man did not know what he was about.”</p>

<p>Landlord and tenant — Distress — Premature appraisement — Trespass — Act of March 21, 1772, 1 Sm. L. 370..</p> <p>1. If an appraisement of goods distrained by a landlord for rent be made before the lapse of five full days after the seizure, and be followed by a sale, the landlord is a trespasser and liable in damages.</p> <p>2. Where the last day for the replevying of goods levied on under a distress for rent falls on Sunday the tenant has all of Monday in which to replevy them and no appraisement can lawfully be made until Tuesday.</p>

<p>Appeal, No. 299, Jan. T., 1910, by plaintiff, from judgment of C, P, pancaster Co,, Nov, Term, 1909, No. 37, on verdict for defendant in case of Christian F. Quade v. The Columbia & Port Deposit Railway Company.</p> <p>Issue to determine the amount of damages in condemnation proceedings. Before Hassler, J.</p> <p>The court charged as follows:</p> <p>In this case the land in question was taken on March 19, 1907, that being the day upon which the bond was .filed and approved in this court. The property was not conveyed to the present plaintiff, Christian F. Quade, until March 29, or two weeks afterwards. When it was conveyed to him, it was conveyed subject to what the railroad company had taken, and subject to their rights under their bond, and if any injury was done to the property by reason of the railroad company having taken one-tenth of an acre of it, it was an injury to Frederick F, Quade, the former owner. The damages that he would be entitled to are personal, and do not run with the land, so that a subsequent owner had no standing to recover any damages for the taking of that land. We are, therefore, bound to instruct you that under the law and the evidence your verdict must be for the defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was the charge of the court, quoting it.</p> <p>Under the issue, the question of title did not arise, but was an afterthought on the part of the appellee: Ehret v. R. R. Co., 151 Pa. 158; D. L. & W. R. R. Co. v. Burson, 61 Pa. 369; Heise v. R. R. Co., 62 Pa. 67; Turner’s App., 2 Walker (Pa.) 229.</p> <p>In the case in hand, there was nothing whatever on the record disputing the title of the plaintiff or his right to recover the damages: United States v. Agee, 108 Fed. Repr. 10; Ehret v. R. R. Co., 151 Pa. 158; State Line R. R. Co. v. Playford, 14 Atl. Repr. 355; Tissue v. R. R. Co., 12 Pa. Dist. Rep. 175.</p> <p>After the bond was approved, the owner of the land for whose benefit the bond was given could not maintain an action of trespass, ejectment or injunction, but would be obliged to follow the remedy provided by the act of assembly. If he assigns his damages, the assignee would be obliged to pursue the same remedy: Frey v. Ry. Co., 91 Wis. 309 (64 N. W. Repr. 1038); Birch v. Ry. Co., 8 N. Y. Supp. 325; Dyer v. Wightman, 66 Pa. 425.</p> <p>The defendant by not raising the question of title, but admitting it by having the issue framed for the purpose of ascertaining the damages, thereby waives its right to object on-that ground or to raise the question of title on the trial: Chicago & Iowa R. R. Co. v. Hopkins, 90 111. 316; Peoria, Pekin & Jacksonville R. R. Co. v. Laurie, 63 111. 264; St. Paul & Sioux City R. R. Co. v. Matthews, 16 Minn. 341; Helena & Livingston Smelting & Reduction Co. v. Lynch, 25 Mont. 497 (65 Pac. Repr. 919).</p> <p>Damages, being in compensation of an injury in the nature of a trespass, will not pass by a conveyance of land: Schuylkill & Susquehanna Navigation Co. v. Decker, 2 Watts, 343; Zimmerman v. Union Canal Co., 1 W. & S.. 346; Losch’s App., 109 Pa. 72; James v. West Chester Boro., 220 Pa. 490; McFadden v. Johnson, 72 Pa. 335.</p>

<p>Appeal, No. 62, Jan. T., 1911, by plaintiff, from order of C. P. Lancaster Co., Aug. T., 1908, No. 91, refusing to take off nonsuit in case of Mary A. Mitchell v. The Columbia & Port Deposit Railway Company.</p> <p>Appeal from award of viewers. Before Landis, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were (1) refusing to take off nonsuit; (4-6) refusing to permit plaintiff’s witnesses, R. O. Mitchell and J. Frank Bowman, to express an opinion as to values.</p>

Appeal, No. 96, Jan. T., 1911, by defendant, from judgment of C. P. York Co., Aug. T., 1910, No. 12, on verdict for plaintiff in case of Wesley Sterner v. S. Morgan Smith Company. Trespass to recover damages for personal injuries. Before Warner, J. The facts are stated in the opinion of the Supreme Court. The defendant presented the following points: 2.

<p>-• Wills — Construction—Legal heirs — “Then”—Trusts and trustees.</p> <p>1. Where a testator creates a trust for the benefit of his sister during her life, and after her death gives the principal thereof “to her children in equal shares, but in the event that no children survive her, then I give and bequeath the same to my legal heirs,” and the sister dies without children surviving her, the persons who are entitled to the principal of the fund at the death of the sister are the heirs of the testator living at the time of his death.</p> <p>2. In the construction of wills there are instances in which the word “then” as used in connection with the devise of property has been held to be an adverb of time, but this is not the general rule, which is, that it does not point to the time but indicates the event.</p>

<p>Contract — Building contract — Arbitration clause — Scope of arbitration clause — Nonfulfillment.</p> <p>1. The parties to a building or construction contract may legally provide therein that disputes arising out of the contract shall be submitted for decision to the architect or engineer, and that his conclusion or judgment shall be a final adjudication of the questions submitted. Such submission may include the power to determine the right of the parties to liquidated damages under the terms of the contract.</p> <p>2. The right of trial by jury, however, is not to be taken away by implication, and in order to oust the jurisdiction of the courts it must clearly appear that the subject-matter of the controversy was within the prospective submission.</p> <p>3. An agreement of submission is not to be extended by implication beyond its plain words, and a provision therein to submit questions that may arise as to the fulfillment of a contract does not give the right to pass on a claim for damages for nonfulfillment.</p> <p>4. Where a sewer contract provides that the engineer “shall in all cases determine the amount, quality, acceptability and fitness of the several amounts of work and material, and shall decide all questions which may arise as to the measurement of quantities and the fulfillment of this contract .... and shall determine all questions respecting the true construction or meaning of the plans and specifications,” and the contract contemplates extra work, whether additional sewers and removing and relaying paving on the streets in which they were laid, and the depth of excavations for house connections were “work not otherwise provided for” in the contract and to be paid for as extra work are questions for the engineer to determine.</p> <p>5. The decision of an engineer in such case may be erroneous and not in accord with the true intent of the contract, but that does not invalidate it unless it is tainted with fraud or misconduct to which the city was a party.</p> <p>6. Where a city construction contract provides for the construction of sewers at a unit price and it is distinctly stipulated in the contract and specifications that the quantities of work shown on the plans are only approximate, the contractors are entitled to unit prices only for additional sewers, and not for compensation for extra work under a clause in the contract relating to extra work, and providing for its compensation. The same rule applies to a claim for extra excavations for house trenches of a greater depth than that specified in the contract where the cost of excavation is fixed on a unit basis; and also applies to a claim for removing and placing pavements involved in laying additional sewers.</p> <p>7. A municipality is bound by the terms of a construction contract which it has executed and not by the unauthorized representations or declarations of its officers which would change the written stipulations of the agreement.</p> <p>8. Where a sewer construction contract confers exclusive jurisdiction on the engineer to construe the meaning of the plans and specifications, and to determine what is and what is not extra work, but does not confer upon him generally the power to construe the contract as a whole, the engineer exceeds his jurisdiction in passing upon a claim for damages for failure of the city to provide an outlet for sewers, where his decision involves the construction of the whole contract, and not simply of the plans and specifications.</p> <p>9. An engineer has no power to pass upon a claim for damages for delay in the fulfillment of a municipal contract, where there is no provision in the arbitral clause conferring such jurisdiction upon him.</p>

<p>Husband and wife — Agreement of separation — Reconciliation.</p> <p>1. Deeds and postnuptial agreements for the actual and immediate separation of husband and wife, based upon a good consideration and reasonable in terms, are valid and effectual both at law and in equity.</p> <p>2. Where a husband and wife enter into a written agreement to live separate and apart from each other during their natural lives, and in the agreement adjust their respective property rights, but subsequently enter into a second agreement in which they recite the execution of the former agreement, and that the parties have become reconciled and desire to live together, but stipulate that the terms of the former agreement should in no other respect be modified, and thereafter there is no subsequent separation, the husband cannot after the death of his wife demand that he be relieved from the performance of his part of the contract, and claim a share in her estate under the intestate laws.</p>

<p>Appeal, No. 129, Jan. T., 1911, by defendant, from judgment of C. P. York Co., April T., 1911, No. 127, for plaintiff on case stated in suit of Jacob Caslow and Malinda Berthold, Executor and Executrix of Margaret Caslow, Deceased, v. Isaac Strausbaugh.</p> <p>Case stated to determine marketable title to real estate. Before Bittenger, P. J.</p> <p>From the case stated it appeared that Samuel Caslow, husband of Margaret Caslow, died on March 11, 1888, seized in fee of the land in question. By his will he gave his real and personal property to his wife. The material portion of the will is quoted in the opinion of the Supreme Court.</p> <p>Margaret Caslow died on March 15, 1910, leaving a will by which she authorized her executors to sell her real estate at public or private sale. The executors contracted to sell the land in question to the defendant who refused to pay the purchase money alleging that the title was not marketable.</p> <p>The court entered judgment for plaintiffs for $3,730.50. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Food law — Oleomargarine—Application for license — Discretion of dairy and food commissioner — Act of May 29,1901, P. L. 827.</p> <p>1. Under the Act of May 29, 1901, P. L. 327., relating to the sale of oleomargarine, the dairy and food commissioner cannot require that an application for a license to sell oleomargarine shall contain, anything except such matters as are calculated to affect the one single purpose of the act, namely, to advertise to the public the true nature and character of the product to be manufactured or sold, so that the imposition of a counterfeit resemblance may be prevented, and incidentally to facilitate discovery and detection when an attempt is made to evade the law.</p> <p>2. The dairy and food commissioner has no power to refuse a license to sell oleomargarine on the ground that at the time the application was made the applicant, who was then engaged in business under an existing license, was selling oleomargarine which upon examination was found to contain coloration and ingredients which caused it to resemble and imitate yellow butter.</p>

Appeals, Nos. 13 and 15, May T., 1911, by plaintiff and defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1909, No. 172, for the Commonwealth on case tried by the court without a jury in suit of Commonwealth v. Independence Trust Company. Appeal from tax settlement. From the record it appeared that the defendant was incorporated on July 29, 1889, under the general incorporation act of 1874, with an authorized capital of $1,000,000.

<p>Auditors — Findings of fact — Review.</p> <p>An auditor’s findings of fact based upon sufficient evidence and confirmed by the court below will not be reversed by the appellate court in the absence of manifest error.</p>

Appeal, No. 2, May T., 1911, by plaintiff, from order of C. P. Fulton Co., Oct. T., 1906, No. 39, refusing to take off nonsuit in case of William L. Moseby v. Daniel C. Fleck et al. Trespass for an alleged wrongful ejectment from land in Wells township. Before Swope, P. J. From the record it appeared that prior to August 7, 1894, Abram G. Anderson was the owner of the farm from which the plaintiff was ejected.

<p>Appeal, No. 8, May T., 1911, by plaintiffs, from judgment of C. P. Dauphin Co., March T., 1906, No. 161, for defendant non obstante veredicto in case of James Duffy et al. v. York Haven Water & Power Company.</p> <p>Trespass for injuries to improvements and crops. Before McCarrell, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial the jury returned a verdict for plaintiffs for $13,785. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p> <p>It was error to enter judgment n. o. v.: Dalmas v. Kemble, 215 Pa. 410; Edwards v. Woodruff, 25 Pa. Superior Ct. 575.</p> <p>cited: Shaw v. Susquehanna Boom Co., 125 Pa. 324.</p>

<p>Appeal, No. 174, Jan. T., 1910, by plaintiffs, from decree of C. P. Bucks Co., Oct. T., 1908, No. 2, sustaining demurrer to bill in equity in case of Charles F. Wagner, Jr., George B. Atlee and J. Ernest Richards v. Philadelphia, Bristol & Trenton Street Railway Company and the Union Trust Company of Maryland.</p> <p>Bill in equity for a receiver with authority to sell corporate property. Before Stout, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree sustaining demurrer to the bill and imposing the cost and expenses of the receivership on the complainants..</p> <p>This was a bill for the benefit of bondholders. This was not a bill for the foreclosure of the property: Central Trust Co. v. Chattanooga, etc., Ro R. Co., 94 Fed.. Repr. 275; Atlantic Trust Co. v. Dana, 128 Fed. Repr. 209.</p> <p>The authorities go so far as to say that if the bondholder or the trustee do not at once intervene and petition the court to conserve the income of the road for the benefit of the mortgagee, that then there can be no complaint if the railway company shall continue to use the income until there be such intervention: United States Trust Co. v. Wabash Ry. Co., 150 U. S. 287 (14 Sup. Ct. Repr. 86); Ball v. Marske, 202 111. 31 (66 N. E. Repr. 845); Seibert v. Ry. Co., 52 Minn. 246 (53 N. W. Repr. 1151); Galveston R. R. Co. v. Cowdrey, 78 U. S. 459; Gilman v. Illinois & Mississippi Tel. Co., 91 U. S. 603.</p> <p>It was error of the court below, either as a matter of law or upon the evidence taken or upon the pleadings, to charge the expenses of the receivership to the appellant Wagner,, but said expenses should be properly charged to the fund in the hands of the temporary receivers: Atlantic Trust Co. v. Dana, 128 Fed. Repr. 209; U. S. Trust Co. v. Wabash Ry. Co., 150 U. S. 287 (14 Sup. Ct. Repr. 86) ; Galveston v. Cowdrey, 78 U. S. 459; Sage v. Memphis R. R. Co., 125 U. S. 361 (8 Sup. Ct. Repr. 887); Winton’s App., 87 Pa. 77; Wills Valley Mining & Mfg. Co. v. Galloway, 139 Ala. 276 (35 So. Repr. 850); Highley v. Deane, 168 111. 266 (48 N. E. Repr. 50); Hopfensack v. Hopfensack, 61 How. Pr. 498; Heise v. Starr, 44 111. App. 406; Espuela Land & Cattle Co. v. Bindle, 11 Tex. Civ. App. 262 (32 S. W. Repr. 582); Battles v. Laudenslager, 84 Pa. 446; Gowan v. Jeffries, 2 Ashmead, 296; Olmstead v. Distilling & Cattle Feeding Co., 67 Fed. Repr. 24; Johns v. Johns, 23 Ga. 31.</p> <p>The appointment of receivers upon an ex parte application and without notice to the defendants, was illegal: Verplank v. Ins. Co., 2 Paige, 438; Chicago & Allegheny Oil & Mining Co. v. U. S. Petroleum Co., 57 Pa. 83; Gravenstine’s App., 49 Pa. 310; Gowan v. Jeffries, 2 Ashmead, 296; Bank of Florence v. U. S. Savings & Loan Co., 104 Ala. 297 (16 So. Repr. 110).</p> <p>Irrespective of the plaintiff’s method of procedure, his bill of complaint is insufficient in law, because it does not contain a copy of the bond or of the mortgage or a reference to the place where the mortgage is recorded: Haneman v. Pile, 161 Pa. 599; Brown v. Jermyn, 6 Lack. Jurist, 1; Triplett v. Sayre, 3 Dana (Ky.), 590; Hosford v. Johnson, 74 Ind. 479; Knight v. Heafer, 79 111. App. 374.</p> <p>The bill is insufficient because it contains no averment that the plaintiff has requested the trustee under the mortgage to act or that the trustee has refused to act or that the trustee has refused or failed in any way to take proper steps for the protection of the bondholders: Farmers’ Loan & Trust Co, v. R. R. Co., 66 Fed. Repr. 169; McGeorge v. Big Stone Gap Imp. Co., 57 Fed. Repr. 262; Com. v. R. R. Co., 122 Pa. 306; Ettlinger v. Rug & Carpet Co., 142 N. Y. 189 (36 N. E. Repr. 1055); General Elec. Co. v. La Grande Edison Elec. Co., 87 Fed. Repr. 590; Consolidated Water Co. v. San Diego, 92 Fed. Repr. 759.</p> <p>The bill is insufficient because the provisions of the mortgage securing the defendant railway company’s bonds (if this court concludes that said mortgage is before it) clearly bar the complainant from maintaining his bill: Mercantile Trust Co. v. Chicago, etc., Ry. Co., 61 Fed. Repr. 372; Chicago & Vincennes R. R. Co. v. Fosdick, 106 U. S. 47 (1 Sup. Ct. Repr. 10); Farmers’ Loan & Trust Co. v. Winona, etc., Ry. Co., 59 Fed. Repr. 957; Central Trust Co. of N. Y. v. Worcester Cycle Mfg. Co., 93 Fed. Repr. 712.</p> <p>The costs of an improper receivership, including the receivers’ compensation, should be imposed upon the party who secured the appointment of said receiver, in accordance with the general rule that costs in equity fall on the unsuccessful litigant: Biddle’s App., 19 W. N. C. 219; Hutchinson’s App., 147 Pa. 140; Couper v. Shirley, 21 C. C. A. 288 (75 Fed. Repr. 168); French v. Gifford, 31 Iowa, 428; Hickey v. Parrot Silver & Copper Co., 32 Mont. 143 (79 Pac. Repr. 698); Nutter v. Brown, 58 W. Va. 237 (52 S. E. Repr. 88); Cutter v. Pollock, 7 N. D. 631 (76 N. W. Repr. 235); Cassidy v. Harrelson, IColo. App. 458 (29 Pac. Repr. 525); Hamilton v. Dupre, 103 Ga. 795 (30 S. E. Repr. 248); Myres v. Frankenthal, 55 111. App. 390.</p>

Appeal, No. 312, Jan. T., 1910, by defendants, from judgment of C. P. Lycoming Co., Sept. T., 1909, No. 2, on verdict for plaintiff in case of W. A. Dougherty v. William T. Welshans et al. Ejectment for 430 acres of land in Limestone township. Before Hart, P. J. At the trial it appeared that the lands had been warranted to one Jacob Sailor, and subsequently, on July 2, 1795, granted by the commonwealth by patent to one John Kantner.

Appeal, No. 361, Jan. T., 1910, by defendants, from decree of C. P. Lackawanna Co., Nov. T., 1908, No. 1, on bill in equity in case of Alex. Mazaika et al. v. Andrew Krauczunas et al. Bill in equity to obtain a conveyance of property and for an injunction. Newcomb, J., found the facts to be as follows: 1.

Appeal, No. 321, Jan. T., 1910, by defendants, from decree of C. P. Northampton Co., Sept. T., 1909, No. 3, on bill in equity in case of Delaware, Lackawanna & Western Railway Company v. Alice Welser et al. Bill in equity for specific performance. Before Scott, P. J. The chancellor found the facts to be as follows: 1.

Appeal, No. 65, Jan. T.,. 1911, by The Chapot-Shirlaw Company, etc., defendant, from judgment of C. P. Susquehanna Co., Aug. T., 1904, No. 322, for plaintiffs on case tried by the court without a jury in suit of Wilson Kistler, Michael D. Kistler, Michael D. Kistler, assignee of Rufus Kistler, Milo Kistler, Elizabeth Kistler, Mary Lesh, Andrew M. Kistler, Harriet Camp, H. Frederick Lesh and Maud K. Jacobs v. The Chapot Chamois Company, The First National Bank of Susquehanna…

Appeal, No. 215, Jan. T., 1910, by defendants, from judgment of C. P. Blair Co., March Term, 1910, No. 551, on verdict for plaintiff in case of Workingman’s Loan & Building Association of Altoona v. Thomas Heaton et al. Scire facias sur mortgage to recover arrears of dues, interest, premium and fines. Before Baldridge, P. J. The plaintiff building association claimed in all $2,801.60.

<p>Appeal, No. 245, Jan. T., 1910, by plaintiff, from decree of C. P. Fayette Co., Equity No. 552, on bill in equity in case of Daniel Chisholm v. Josiah Y. Thompson et al.</p> <p>Bill to quiet title, to fix the line between two adjoining pieces of real estate, to restrain the defendants from constructing a building, and to ascertain and award damages.</p> <p>The bill averred that the defendants were about to erect a building the easterly wall of which would encroach upon the westerly side of the adjoining lot belonging to plaintiff. The defendants answered that the strip of land upon which the plaintiff claimed they were about to encroach belonged to them and not to the plaintiff.</p> <p>The case was heard on bill and answer and the court below filed an opinion in which the principal material facts were found, and the respective contentions of the parties were stated, as follows:</p> <p>“In the early part of the nineteenth century Isaac Beeson owned in fee simple, inter alia, a lot in the borough of Uniontown, Pa., situate in the block between what is now Beeson avenue and Morgantown street on the south side of and fronting about sixty-four feet five and one-half inches on Main street, extending back the same width, 150 feet to South street. The first improvement on the said lot was a two-story brick dwelling house, which extended from what has long been known as the Harah lot on the east, along Main street westwardly twenty-seven and fifteen one hundredths feet. The west end of this dwelling was a regular nine-inch brick wall, and from the square of the building up, was a triangular gable, highest in the center, sloping to the north and south with the pitch of an-ordinary comb roof.</p> <p>“ About 1832, some years after the erection of the said dwelling, Mr. Beeson erected on a part of the said lot a partly one and a partly two-story brick building for a business block, including in part and extending from the west wall of the dwelling on the east side to the adjoining property on Main street on the west. At the eastern end of the business block it was so constructed that there was a passage or small alleyway to the immediate west of the dwelling, which alley or passageway was open to about the height of the first story, and there was operated through it for many years a tramway for the transportation of merchandise, etc., from Main street to and from the warehouse in the rear. At the top of the Main street end of this passage or alleyway an arch was constructed and above it the business block was extended eastwardly to and connected with the west wall of the dwelling. The front or Main street wall of the business block was built flush or even with the front wall of the dwelling, and from the top of the passage or alleyway the construction was such that the brick were interlocked so that from the aforesaid arch up to the square of the dwelling the two front walls were so joined as now to appear and look like a single wall all built at the same time. The business block extended southwardly beyond the south line of the dwelling at its southwest corner, and from that comer southwardly the east wall of the business block was built so as that its western side was even and flush with the western side of the west end wall of the dwelling and its eastern side was about nine inches east of the said west side of the west end wall of the dwelling, and it was built on the strip of land in dispute.</p> <p>“ From the aforesaid, it will be observed that at the time of the erection of the business block, that part of it immediately west of the dwelling had no east wall of its own separate from the west wall of the dwelling, from the top of the passage or alleyway to the top of the dwelling— the west wall of the dwelling serving for that purpose— but south of and beyond the south line of the dwelling the business block did have a separate and distinct east wall and standing upon the strip of land in dispute. About 1851 a third story was added to a part of the business block and its construction from the top of the old said west end wall of the dwelling it was just built above the gable, so that the east wall for that part of the third story of the business block was only the said west wall of the dwelling extending upwards. Eventually the tramway in the passage or alleyway was abandoned and the opening bricked up by extending that part of the north and south walls of the business block eastwardly to the west end of the dwelling and thus taking the alleyway space into the éast first floor room of the business block, and thereafter the west wall of the dwelling from the ground up was the east wall of the business block. When the alleyway was closed and the walls extended the brick were not interlocked in the front and west wall of the dwelling as they had been from the top of the alleyway .to the top of the square of the dwelling when the business block was originally constructed, but left a broken joint and as a consequence it is not difficult to determine the original outline of the foundation and walls of the dwelling.</p> <p>“ Mr. Isaac Beeson or his lineal descendants owned the fee simple title to the entire lot during all the time of the construction of the said buildings and the making of the said and other changes. In effect when the said changes were completed the two said buildings were really but one building, partly one, partly two and partly three stories high, part used for a dwelling and part for business purposes, so that the west wall of the dwelling and that part of the east wall of the business block were one and the same and was in fact nothing more nor less than what is termed a cross wall, up to the top of the dwelling. If the entire structure be considered as two buildings this cross wall is just as much a part of one as of the other, as without it the dwelling has no west wall, and without it the business block has no east wall, at least the extent of the dwelling, and none at all if plaintiff’s contentions prevail.</p> <p>“ By due process of law it so happened that in 1890 the fee simple title to the whole of said lot and improvement was vested in Miss Jennie B. Beeson and her sister, Mrs. Louisa Mathers, subject to the dower rights of their mother, Mrs. Amanda L. Beeson. At and for some considerable time before the date last aforesaid R. F. Hop-wood, Esq., acted as-agent for the sale of yarious pieces of real estate for the said Jennie B. Beeson and her sister, and as such agent he negotiated with the representatives of the Uniontown Young Men’s Christian Association, and at least one other party, for the sale of the western part of the said lot, which was proceeded in so that on September 10, 1890, a written agreement was concluded between the Beesons and a representative of the Y. M. C. A. for the sale and purchase of all that part of the said ■ lot described as follows, viz.: ‘All that certain lot of ground with the dwelling thereon erected, situate on the south side of Main street, Uniontown, Pa., bounded and described as follows: Beginning at corner of lot of C. Claggett’s heirs and running thence eastwardly along Main street about thirty-eight feet to corner of the house lately used as a dwelling by said first parties, now used for offices; thence southwardly at right angles with Main street 150 feet to South street, thence westwardly along said street about thirty-eight feet to corner of Claggett lot aforesaid; thence northwardly by said lot 150 feet to Main street, the place of beginning. It being the property known as the Beeson store property, having erected thereon a three-story brick storehouse on Main street and a brick warehouse and stable on South street.’ Which said agreement on August 12, 1907, was assigned by the proper authorities of the Y. M. C. A., with the approval of the court of common pleas of Fayette county at No. 185, September Term, 1907, to Josiah V. Thompson and John D. Ruby, and in pursuance thereof on December 12, 1907, the said Jennie B. Beeson et al. executed a deed for the said premises to the said Thompson and Ruby, subject to the dower interests of Mrs. Amanda L. Beeson, and at a later date the said Thompson and Ruby sold and agreed to convey the said premises to Lee Stern, Joseph Stern and Samuel Stern, the other defendants. On December 29, 1893, more than three years after the Y. M. C. A. had purchased and taken possession of the ‘three-story storehouse,’ the plaintiff herein purchased by articles of agreement the remainder of said lot, described as follows, viz.: ‘All that certain lot of ground situate on the south side of Main street in the borough of Uniontown, Fayette county, Pa., and running through from Main to South street, bounded on the east by lot of John S. Harah and on the west by lot of Y. M. C. A., being the same property heretofore used as a dwelling by said first parties, now occupied by offices of O. P. Marldey et al.’ Which article of agreement was followed by a general warranty deed dated April 2, 1894, recorded in the recorder’s office of Fayette county, in Deed Book, vol. 128, p. 334, in which said deed the description is the same as that quoted above from agreement.</p> <p>“ The aforesaid facts developed the contentions between the parties to this action as to the ownership of the said cross wall, the entire east wall of the business block and the strip of ground about nine inches wide extending from Main street through to South street. It is contended on the part of the plaintiff that his agreement and conveyance called for and carried the entire ‘property heretofore used as a dwelling’ and all that part of the lot covered by it, and since the first two stories of the said west or cross wall were built as a part of the dwelling house his lot must of necessity extend to and include everything to the line that was the out and west side of the dwelling house when it was originally constructed, which was the east side of the aforesaid passage or alleyway when the business block was first completed, and he further claimed that the aforesaid purchase by the Y. M. C. A. was only to the corner of the said dwelling and did not include the east wall of the business block. The defendants contend that the contract for the sale to the Y. M. C. A. antedating that to the plaintiff, and ‘it being the property known as the Beeson store property, having erected thereon a three-story brick storehouse on Main street’ and the distance expressed, while it says ‘about thirty-eight feet,’ being within the fractional part of an inch to carry the strip of land in controversy to the Y. M. C. A. and through it to the defendants, the said wall and strip of ground belonged to them. And in support of their contention the aforesaid R. F. Hopwood testified as representing the Beesons, to having made the actual measurement on the ground so as to include the said wall and strip of land in the sale to the Y. M. C. A. and that it was clearly and distinctly the purpose to sell to the Y. M. C. A. the three-story building, and there is other evidence to the same effect. And in addition there is evidence of a fence having once been maintained from the rear of the building toward South street on the line claimed by the defendants, indicating such division of the said lot by the Beesons years ago — which appeared by marks on the ground and by reference to plan No. 2 attached to defendants’ answer. There is some conflict in the testimony regarding the agency of Mr. Hopwood but in our opinion none of a positively serious character, and we cannot conclude otherwise than as testified by Mr. Hopwood in that regard, and also as to measurements made by him on Main street, as, if it had not been the intention to include the wall and strip of ground in dispute in the Y. M. C. A. agreement, the measurement to the broken joint where the alleyway was walled up and the point to where it would then have extended, would have been a very simple matter and could easily have been determined exactly. If that had been the intention, Mr. Hopwood’s measurement was off eight and one-fourth inches, whereas taking what we find the intention to have been, his measurement was correct to within three-eighths of one inch.</p> <p>“ In view of the foregoing and of the fact that at the date of the contract with the Y. M. C. A., the said Jennie B. Beeson and Louisa Mathers were the owners of the entire lot, we conclude and find as a fact that it was the purpose and intention of all parties in interest to sell and purchase the entire three-story brick building and the ground on which it and its necessary walls stood, and having concluded that the wall in controversy is a necessary part of the business block or three-story building, the sale of the said three-story building included the said wall, and this being a fact, we find, conclude and hold as a fact that the title to the said wall and the nine-inch strip of ground passed from Jennie B. Beeson and Louisa Mathers when they sold the ' Beeson store property, having erected thereon a three-story brick store-house,’ to the Y. M. C. A.</p> <p>“ There is no question but that on September 10, 1890, the date of the agreement with the Y. M. C. A., all the parties in interest were under the impression, so far as the matter was given consideration, that at the point in dispute there were two walls — one for the west end of the dwelling and one for the east end of the business block, instead of being merely a single cross wall. While we are satisfied and find as a fact that it was the intention to sell and purchase the whole three-story building by the agreement of September .10, 1890, yet we are equally well satisfied that it was not the intention to sell and purchase a wall- that was supposed to be there as the west wall of the dwelling, yet we do not think that the absence of such wall could affect the sale to the Y. M. C. A.”</p> <p>On May 24, 1910, the court below dismissed plaintiff’s exceptions and confirmed the decree previously entered refusing the injunction, fixing the line between the lots as contended for by the defendants, and dividing the costs between the parties. Plaintiff appealed.</p> <p>Errors assigned were (1) finding of fact that Hopwood acted as agent for the Beesons in negotiating with the Y. M. C. A. for the lot subsequently deeded to the defendants; (2) admission of Hopwood’s testimony showing how he made the measurements of the front of defendants’ lot so as to include the wall in dispute; (3) admission of Hopwood’s testimony to the effect that at the time of the conveyance to the plaintiff he had explained to him the prior conveyance to the defendants, that he had declined to permit his clients, the plaintiff’s grantors, to make a deed to the plaintiff describing the property as containing any defined frontage, and that this was done for the purpose of not expressly including the wall in such conveyance to the plaintiff; (4) finding of fact that the sale to the Y. M. C. A. passed the title of the .strip of land and wall in dispute; (5) conclusion that monuments upon the ground designated by the parties sufficiently marked the measurements so as to include the strip of land in dispute in the property conveyed to the defendants; (6) conclusion of law that the principle “that where one of two or more innocent parties must suffer, the loss must be sustained by those who are most to blame” applied in this case in favor of the defendants; (7, 8) form of decree; (9) final order dismissing exceptions and confirming the decree.</p> <p>Parol testimony cannot be introduced to modify or explain descriptions embraced in deeds for real estate except in cases of latent ambiguity in the descriptions themselves, or fraud, accident or mistake: Shepherd v. Watson, 1 Watts, 35; Duffield v. Hue, 129 Pa. 94; Fuller v. Weaver, 175 Pa. 182; Hunter v. Hunter, 37 Pa. Superior Ct. 311; Root’s Est., 187 Pa. 118; Henry v. Huff, 143 Pa. 548; Hughes v. Westmoreland Coal Co., 104 Pa. 207.</p> <p>The fifth assignment is supported by Thompson v. Kauffelt, 110 Pa. 209; Breneiser v. Davis, 134 Pa. 1.</p> <p>Appellant’s counsel lay much stress on the wording of the contract of sale to the Y. M. C. A. As Chisholm, the appellant, does not claim under this contract, it is not clear that it is a vital matter to him: Province v. Crow, 70 Pa. 199.</p> <p>That parol evidence is competent in such a case is well established: Safe Deposit & Trust Co. v. Mfg. Co., 229 Pa. 295; Swartz v. Moore, 5 S. & R. 257; Carroll v. Miner, 1 Pa. Superior Ct. 439.</p> <p>The mention of a building may constitute it a monument so as to carry the limits of the land conveyed by a deed beyond the distance mentioned therein: White v. Williams, 48 N. Y. 344; Cecconi v. Rodden, 147 Mass. 164 (16 N. E. Repr. 749); Tyler v. Fickett, 73 Me. 410.</p>

<p>Appeal, No. 342, Jan. T., 1910, by plaintiffs, from judgment of C. P. Lancaster Co., Aug. Term, 1908, No. 104, for defendant non obstante veredicto in case of J. Jacob Shannon & Company v. Lancaster City.</p> <p>Trespass for an alleged wrongful taking of material. Before Hassler, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $3,237.25. Subsequently the court entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p> <p>cited: Muscrelli'v. Mercantile Trust Co., 219 Pa. 602.</p> <p>cited: Hazard v. Hamlin, 5 Watts, 201; Fell v. Fortner, 3 Del. County, 568.</p>

Appeal, No. 182, Jan. T., 1910, by plaintiff, from decree of C. P. Blair Co., Equity Docket D. No. 588, dismissing bill in equity in case of Joseph B. Condron v. The Pennsylvania Railroad Company. Bill in equity for an injunction to restrain the vacation and abandonment of a crossing at Montgomery street in the borough of Hollidaysburg. From the record it appeared that the plaintiff was the owner of a planing mill, lumber and coal yard south of the Montgomery street crossing.

Appeal, No. 251, Jan. T., 1910, by plaintiff, from judgment of C. P. Bucks Co., Oct. T., 1907, No. 5, for defendant non obstante veredicto in case of Morris Rosenbaum v. Rowland H. Hazard. Assumpsit for the amount of a check. Before Stout, P. J. At the trial the jury returned a verdict in favor of the plaintiff for $4,583.25.

<p>Appeal, No. 212, Oct. T., 1911, by defendants, from decree of C. P. No. 2, Allegheny Co., Oct. T., 1911, No. 703, on bill in equity in case of Jacob J. Meisel et al. v. J. Denny O’Neil, I. K. Campbell and S. J. Toole, County Commissioners of Allegheny County.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree awarding injunction.</p> <p>The schedule is not part of the constitution, but is only an auxiliary to it for the purpose of carrying its provisions into effect bridging the chasm between it and the old, and cannot be interpreted to supplant it: Commonwealth v. Clark, 7 W. & S. 127; Elton v. Geissert, 10 Phila. 330; Commonwealth v. Hartranft, 77 Pa. 154; Commonwealth v. Kilgore, 82 Pa. 396.</p> <p>A schedule is not to be construed so as to extend it beyond the fair language used in it: Commonwealth v. Kilgore, 82 Pa. 396.</p> <p>The courts will so construe the law as to shorten the term of a public officer rather than to lengthen it: Commonwealth v. McCarthy, 3 W. N. C. 477.</p> <p>The second paragraph of the schedule was introduced ex cautela: Portuondo’s Estate, 191 Pa. 28; Jones v. Tatham, 20 Pa. 398; Commonwealth v. Charity Hospital, 199 Pa. 119.</p> <p>The court will not give a proviso such an effect as to enlarge the scope of the enacting clause, or use the proviso as an enacting clause itself. Jones v. Tatham, 20 Pa. 398; Commonwealth v. Charity Hospital, 199 Pa. 119; Collner’s Estate, 22 Pa. C. C. Rep. 198.</p>

<p>Elections — Public officers — Cities of the third class — Treasurers—■ Constitutional amendments of 1909 — Schedule—Act of June 21, 1911, P. L. 1102.</p> <p>1. The schedule to the constitutional amendments of 1909 extended for one year the term of office of a treasurer of a city of the third class who had been elected in 1909, and therefore no valid election to fill the office could be held in November, 1911.</p> <p>2. The Act of June 21, 1911, P. L. 1102, providing that the incumbents of certain offices shall hold their 'offices until the first Monday of December, 1911, and no longer, does not affect the office of treasurer of a city of the third class elected in 1909, because it violates the schedule of the constitutional amendments of 1909, in that (1) it shortens the term of an officer whose official term was lengthened by the schedule; and (2) it cuts down the term of such an officer to a certain number of months, thus making the term an uneven number of years.</p>

<p>Appeal, No. 259, Jan. T., 1911, by petitioner, from order of C. P. Fayette Co., Dec. T., 1911, No. 175, refusing writ of mandamus in case of Commonwealth ex rel. William A. Bishop v. John S. Langley et al., Commissioners of Fayette County.</p> <p>Petition for mandamus. Before Van Swearingen, J.</p> <p>The petition averred that the petitioner was a resident and citizen of the fifth ward of what was formerly the borough of Connellsville, now the city of Connellsville; that on May 12, 1911, the governor by letters patent had created the borough of Connellsville a city of the third class; that the petitioner had tendered to the defendants a proper nomination paper as a candidate for the office of select councilman of the fifth ward of the city of Connellsville and that such paper had been refused, and that the commissioners had also refused to print the name of the petitioner as a candidate. It was further averred that the act of June 21, 1911, provided for the election of city officers in the city of Connellsville at the municipal election in November, 1911. The court dismissed the petition.</p> <p>Error assigned was the order of the court.</p> <p>The charter may be in abeyance for every other purpose, but for the purpose of electing officers it is in full force and effect: Com. v. McGroarty, 148 Pa. 606.</p> <p>Connellsville having received letters patent on May 12, 1911, is not within the provisions of sec. 1 of the act of 1911. The city of Connellsville at the date of the passage of the act of June 21, 1911, had the right under existing law to elect city officers at the municipal election of 1911, and appellant confidently submits that this act did not destroy that existing right.</p> <p>It is the policy of the law of this state that public officials both state and local, be elected at fixed times for definite terms, and that they should assume the duties and exercise the powers of their respective offices within a short time after their election, so that state and local governments will be established on a systematic and orderly basis. And especially, that they may operate without jar or friction, and that no interregnums shall occur. The words, “next succeeding,” and the words, “next preceding,” are found in the act of June 21, 1911. The words, “next succeeding,” appear in the old and new sec. 3, of art. I, sec. 5, art. Ill, and sec. 16, art. IV. The words, “next preceding,” appear in the old and new sec. 16, art. IV.</p> <p>An examination and analysis of these sections will show that, in every instance, in both old and new sections, the words, “next succeeding,” and the words, “next preceding,” qualify the name of a month.</p>

<p>Appeal, No. 105, Oct. T., 1911, by defendant, from decree of C. P. No. 3, Allegheny Co., Aug. T., 1910, No. 293, overruling demurrer to bill in equity in case of Esther A. Stuchul v. A. J. Stuchul.</p>

<p>Appeals — Interlocutory order — Condemnation of water — Approval of bond — Water companies — Discretion.</p> <p>An order approving a bond filed in proceedings by a water company for the appropriation of the water of a stream is interlocutory in its nature, and from it no appeal is given by statute. If such an appeal be regarded in the light of a certiorari, and there is nothing in the record to show an abuse of discretion by the court below, it will be dismissed by the' appellate court.</p>

Appeal, No. 187, Jan. T., 1911, by plaintiff, from order of C. P. No. 3, Phila. Co., March T., 1911, No. 4,385, dismissing petition for mandamus in case of Robert D. Kinney v. Mexican Plantation Company, William H. Armstrong et al. Petition by stockholder for mandamus. The opinion of the Supreme Court states the case. Error assigned was order dismissing the petition.

<p>Appeal, No. 147, Jan. T., 1911, by defendant, from judgment of C. P. Northampton Co., Dec. T., 1910, No. 27, for plaintiff on case tried by the court without a jury in suit of Commonwealth ex rel. Samuel Clark v. George W. Roydhouse.</p> <p>Quo warranto to determine the legality of a corporate election. Befor.e Scott, P. J.</p> <p>From the record it appeared that the case turned upon the effect to be given a voting trust agreement entered into between certain of the stockholders of the Bath Portland Cement Company and the Equitable Trust Company as trustee. The agreement recited that it was deemed desirable “in order to promote and protect the individual interests of stockholders who have signed this agreement,” that the stock should be delivered to the trustee, to be held for the term of five years for the purpose of carrying out the agreement. The agreement further provided as follows:</p> <p>“The said Trustee shall issue to depositors Trust Certificates in substantially the form hereto annexed as Exhibit ‘A,’ which shall be transferable only on the transfer books of Trustee. The said Trustee shall hold said shares under the terms and conditions hereof and shall vote same from time to time, at any annual or special meetings of the stockholders, in accordance with the written instructions of a majority of a committee of three, to be appointed by an instrument in writing, lodged with said Trustee and signed by a majority in interest of the holders of said Trust Certificates, as registered on the said books of said Trustee.</p> <p>“Any vacancies in said committee from any cause, shall be filled from time to time in a similar manner. The written instructions of said committee or a majority thereof, as aforesaid, shall be a complete, full and sufficient warrant and protection to said Trustee for so voting, and shall relieve it from any liability or responsibility whatsoever, anything herein contained to the contrary notwithstanding.</p> <p>“Dividends when paid to Trustee, shall in due course be distributed to the holders of said Trust Certificates.</p> <p>“Upon the expiration of said five (5) years from the date thereof, the shares of stock deposited hereunder shall be transferred to the holders of Trust Certificates as the same are surrendered, duly indorsed.</p> <p>“The said Trust Certificates, and the interest represented thereby, shall be assignable and new Trust Certificates may be issued, upon surrender of the outstanding Certificates. The holders of such assigned Certificates, shall, by virtue of accepting the same, become parties to this Agreement.”</p> <p>1. The capital stock of the Bath Portland Cement Company consists of 7,000 shares, of which certificates for 6,754 had been issued and were outstanding on October 26, 1910, the date of the annual election for corporate officers, as appointed by the by-laws.</p> <p>2. On July 27, 1910, individual stockholders holding certificates in the aggregate for 3,591 shares of this capital stock, executed and delivered to the Equitable Trust Company of Philadelphia, a “voting trust” agreement to continue five years, wherein it appears (without more specific mention here) that the stockholders named were to deposit with the trust company their certificates in trust “to be used only for the uses and purposes stated in this agreement. Such deposit shall vest in said trustee the complete title to said shares and must be accompanied by the certificates properly assigned to said trustee.” The trust company is to vote this stock, for which it was to issue its own certificates, “from time to time at any annual or special meetings of the stockholders in accordance with the written instructions of a'majority of a committee of three, to be appointed by a paper in writing, lodged with said trustee and signed by a majority in interest of the holders of said trust certificates, as registered on the books of said trustee.”</p> <p>3. The 3,591 shares were deposited with the trust company by the individual holders prior to October 6, 1910, for all of which the trust company aforesaid issued receipts, but its own certificates to the assignors, while written out, were never signed or issued. The certificates for 1,581 shares (the votes now in dispute) thus transferred, were surrendered by the trustees to the Bath Portland Cement Company, which issued new certificates therefor October 3, 1910, to the “Equitable Trust Company, Trustee, under stockholders’ agreement dated July 27, 1910;” thereupon registered the same in the name of the trustee on the books of the company and paid to it for distribution, according to the terms of the trust agreement, the dividends declared on or about October 6 following.</p> <p>“Note. The remaining 2,010 shares were in possession of the Equitable Trust Company, under properly executed assignment, with letters of attorney to transfer the same on the books from the stockholders, but the certificates had not been yet surrendered to the Bath Portland, and the shares remained registered on the books of the latter in the names of the individual holders. These shares were voted without objection for the relator at the corporate meeting by the Trust Officer of the Equitable Trust Company holding their personal proxies, and the validity of these votes generally is not now put in issue by the answer of respondent. The holdings of Samuel Clarke, the relator, however, numbered 995 shares and were included in this class of 2,010. As a director must be a stockholder, the effect of his transfer to the trustee as divesting him of title is a pertinent inquiry.”</p> <p>4. Art. I, sec. 3, of the by-laws of the Bath Portland Cement Company provides, inter alia, that each stockholder shall be “entitled to one vote, either in person or proxy, for each share of stock standing registered in his or her name on the 20th day preceding the election.”</p> <p>5. Upon the day of the corporate election in Philadelphia, the trust officer of the Equitable Trust Company, tendered the vote of the 1,581 shares, with a copy of the trust agreement attached to the ticket, in accordance with the written instructions of a committee appointed, as assumed to be required by the said agreement, signed by stockholders holding 1,046 shares, representing a majority of the 1,581, but not of the entire trust interest in 3,591, all of whom were among those holding the particular 1,581 shares above mentioned, then registered on the books of the Bath Portland Cement Company in the name of the trustee. When these ballots were offered, a duly qualified and voting stockholder filed with the election judges the written objection, a copy of which, stating specifically the grounds of protest, is appended to respondent’s answer and the respondent himself filed the written objection, a copy of which, with the accomparrying affidavit, will be found therein. No more extended recital of either is necessary here. The trust officer declined to take the oath specified in the Act of March 28, 1820, P. L. 169, as demanded. Concurrently with this tender by the trust officer, and these objections, he offered to the board the same votes on behalf of the beneficial owners thereof (Act of May 26, 1893, sec. 2, P. L. 141), by virtue of their individual proxies, executed at various dates, but all less than two months prior to that election: Act of March 5, 1903, sec. 1, P. L. 14. Each proxy was in form following, viz.:</p> <p>“Know all men by these presents that the undersigned, a stockholder of Bath Portland Cement Company, hereby constitutes and appoints Howard B. French, or in his absence, C. Percy Wilcox as substitute and proxy to attend the annual meeting of the stockholders of Bath Portland Cement Company on Wednesday, October 26, 1910, and any and all adjournments or continuances thereof, and to vote the shares standing in the name of the undersigned upon all matters coming before the said meeting, and adjournments or continuances thereof, and at elections then and there held, as fully as the undersigned might do if present in person, hereby revoking any proxy heretofore given.”</p> <p>Before the vote was tabulated, but after decision to accept this vote, counsel for stockholders again demanded that the proxy voter should take the affidavit under the act of 1820. Howard B. French, named therein as attorney, was the president of the Equitable Trust Company, and the alternate, C. Percy Wilcox, was its trust officer. On December 20, 1910, the trustee and all of the stockholders whose proxies were thus executed, formally ratified and confirmed,' under seal, the act of Wilcox in voting these shares.</p> <p>6. After consideration of the objections the judges of election rejected the votes as offered by the trustee, but received them, by a majority of two against one opposed, under the personal proxies of the individual shareholders. Eleven directors were to be chosen and the attorney accumulated the votes upon six, of whom the relator was one; he was thereby declared elected, and was afterwards chosen president of the new board, and duly qualified. Of the votes thus cast and counted the relator received 6,583 and the respondent 4,966 6-7. The 1,581 shares by the cumulative ballots, the validity of which is the question here, gave the former 2,898, without which the respondent had a majority.</p> <p>7. The beneficial ownership of the 1,581 shares voted, as above set forth, remained in those stockholders of the Bath Portland Company, who executed the personal proxies for the same and were entitled to the trustees’ certificates. No transfer, assignment, or pledge of them had been made other than under the agreement with the Equitable Trust Company. This was established by proof to the board of election before the proxies were received.</p> <p>The conclusions of law are quoted in the opinion of the Supreme Court.</p> <p>Error assigned was the judgment of the court.</p> <p>The voting trust agreement was legal: Rigg v. Ry. Co., 191 Pa. 298; Com. v. Detwiller, 131 Pa. 614; Fitzsimmons v. Lindsay, 205 Pa. 79; Bright-man v. Bates, 175 Mass. 105' (55 N. E. Repr. 809); Williams v. Montgomery, 148 N. Y. 519 (43 N. E. Repr. 57); Boyer v. Nesbitt, 227 Pa. 398.</p> <p>The execution of the agreement of July 27, 1910, and the delivery of the certificates of stock by the subscribers thereto divested such subscribers of all their interest in the stock of the Bath Portland Cement Company: Witham v. Cohen, 100 Ga. 670 (28 S. E. Repr. 505); Argus Co.’s Petition, 138 N. Y. 557 (34 N. E. Repr. 388); Com. v. Dalzell, 152 Pa. 217.</p> <p>A by-law of a corporation limiting the voting to stockholders of record twenty days preceding the election is a reasonable regulation: Com. v. Dalzell, 152 Pa. 217; Com. v. Detwiller, 131 Pa. 614; Bank of Commerce’s Appeal, 73 Pa. 59.</p> <p>Sec. 2 of the act of 1893 does not permit voting by proxy and does not relieve a proxy from the requirements of the act of 1820: Com. v. Bringhurst, 103 Pa. 134; Com. v. Detwiller, 131 Pa. 614.</p>

<p>Equity' — Pleading—Responsive answer — Matter by way of avoidance — Two witness rule.</p> <p>1. An answer to a bill in equity is not responsive so as to require the testimony of two witnesses, or of one witness and other corroborative circumstances, to avoid it, where the bill alleges the making of a written contract under seal “for divers good and valuable considerations” and charges a violation thereof by the defendant, and the answer admits the execution of the contract and the correctness of the copy, but avers that the defendant has wholly repudiated it and sets up unlawfulness of consideration. The latter averments are matters by way of justification and avoidance which the law requires he should próve.</p> <p>Evidence — Exemplification of record — Certification—Offer of proof.</p> <p>2. An exemplification of the record of proceedings in the courts of Great Britain, certified both by the court and the shorthand writer to be the proceedings at the trial and authenticated under the hand and seal of an American consul', is admissible in evidence over objection, without any certificate of a proper officer that "the foregoing is the entire record of the proceedings as the same appears before us of record.”</p> <p>3. An offer to prove in support of an objection to the admission of such records that they did not constitute the whole record of the case of which they were a part is properly overruled.</p> <p>Jurisdiction — Federal court — State court.</p> <p>4. Where a controversy is not wholly between citizens of different states, the state court commits no error in refusing a petition on the part of one of the litigants to transfer the proceedings to a federal court.</p>

Appeal, No. 260, Jan. T., 1910, by defendant, from judgment of C. P. Cumberland Co., Sept. T., 1908, No. 177, on verdict for plaintiff in case of Margaret Moser v. Philadelphia, Harrisburg & Pittsburg Railroad Company. Trespass to recover damages for an alleged discrimination in the matter of siding facilities.

Appeal, No. 143, Jan. T., 1911, by defendant, from decree of C. P. York Co., April Term, 1911, No. 106, awarding judgment of ouster in case of Commonwealth ex rel. R. P. Sherwood, District Attorney v. J. H. Bennett. Quo warranto. Before Bittenger, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was the judgment of ouster. Council itself is the exclusive judge of the right of one of its members to hold an alleged incompatible office: Com. ex rel.

Appeal, No. 169, Jan. T., 1911, by defendant, from judgment of O. & T. Phila. Co., Sept. Sessions, 1910, No. 624, on verdict of guilty of murder in the first degree in case of Commonwealth v. Jerry Green. Indictment for murder. Before Willson, P. J. Verdict of guilty, upon which judgment of sentence was passed. Errors assigned were in the following form: 1.

Appeal, No. 170, Jan. T., 1911, by George Watson, defendant, from judgment of O. & T. Lancaster Co., Nov. T., 1910, No. 55, on verdict of guilty of murder of the first degree in case of Commonwealth v. George Watson and Julie Harris. Indictment for murder.

Appeal, No. 112, Oct. T., 1911, by defendant, from judgment of C. P. Cambria Co., June Term, 1909, No. 83, on verdict for plaintiffs in case of James Smith et al. v. Benjamin F. Ribblett. Ejectment for land in West Taylor township. Before O’Connor, P. J. At the trial it appeared that plaintiffs claimed the land as heirs of George L. Bowser, deceased.

Appeal, No. 119, Oct. T., 1911, by defendant, from judgment of C. P. Cambria Co., Dec. Term, 1909, No. 545, on verdict for plaintiff in ease of Patrick Burns v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before O’Connor, P. J. ' The faets are stated in the opinion of the Supreme Court. Verdict for plaintiff for $7,000, on which judgment was entered for $6,000, all above that amount having been remitted. Defendant appealed.

Appeal, No. 185, Oct. T., 19Í1, by defendant, from judgment of C. P. Cambria Co., Sept. Term, 1909, No. 381, on verdict for plaintiff in case of Frank S. Croyle v. Cambria Land & Improvement Company, .Limited. Assumpsit for breach of contract.

<p>Detimie — Possession—Evidence.</p> <p>1. Prior possession is sufficient to sustain detinue by the prior possessor against anyone who cannot show a superior right of possession.</p> <p>Gifts — Gift inter vivos — Evidence—Burden of proof — Detimie.</p> <p>2. Where the defendant in an action of detinue sets up a gift inter vivos as a defense, the burden of proof is upon him to establish all the facts essential to the validity of such gift.</p> <p>3. The essential elements of a gift inter vivos are an intention to give, and such actual or constructive delivery of the thing given as places the absolute control or dominion over the gift in the donee.</p> <p>4. When an alleged donor has been surrounded during his last sickness by the family and relatives of the alleged donee, and the claimant has had opportunities to obtain possession of the subject of the alleged gift without title, the proof in support of the claim ought to be clear and satisfactory upon every point essential to title by gift.</p> <p>5. The mere fact that a person claiming property as a gift has it in his possession after the death of the alleged donor has little, if any, weight on the question of the gift, where the claimant has had access to the property and effects of the alleged donor during his last sickness, or after his death. Thus where a father claims negotiable bonds as a gift inter vivos from his deceased son, the fact that the father had possession of the bonds immediately after the son’s death is to be given little weight where the evidence would justify a finding that the son kept the bonds with his other valuable papers in his father’s house where he resided, and that the father had access to such papers.</p> <p>6. In an action of detinue by an executor against the decedent’s father to recover possession of negotiable bonds found in possession of the father after the son’s death and claimed by the father as a gift inter vivos from the son, the mere proof that the son had retained the bonds and collected the interest on them until within three weeks of his death does not make out a prima facie case for the plaintiff as to the ownership of the bonds. In such a ease if the bonds were negotiable securities, the father, as having possession of them, will be deemed to be in a position of a bona fide holder for value, and before maturity; but very slight circumstances will throw upon the father in such a situation the burden of proving that the bonds were obtained by him bona fide.</p> <p>7. In an action of detinue to recover bonds claimed by the defendant as a gift inter vivos from his son, the testimony of witnesses as to their having seen bonds in the possession of the father of the son during the latter’s lifetime is to be given little weight, where they do not identify the bonds in the possession of the father as the bonds seen by them in the son’s lifetime.</p> <p>8. In such an action it is proper to admit proof of the amount of the son’s estate, his indebtedness, that he left a surviving daughter, and the relations of the father and son at the date of, and some time prior to, the death of the latter.</p>

<p>Appeal, No. 25, Oct. T., 1911, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1909, No. 156, on verdict for plaintiff in case of Jacob F. Kammerdiener v. Rayburn Township.</p> <p>Trespass to recover damages for death of plaintiff’s wife. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $4,000. Defendant appealed.</p> <p>Error assigned among others was in refusing binding instructions for defendant.</p> <p>cited: Arthurs v. Wilson, 40 Pa. Superior Ct. 604; Heister v. Fawn Twp., 189 Pa. 253; Schaeffer v. Jackson Twp., 150 Pa. 145; Nichols v. Pittsfield Twp., 209 Pa. 240; Brendlinger v. New Hanover Twp., 148 Pa. 93; Forks Twp. v. King, 84 Pa. 230.</p> <p>cited: Scott Twp. v. Montgomery, 95 Pa. 444; Newlin Twp. v. Davis, 77 Pa. 317; Mahanoy Twp. v. Scholly, 84 Pa. 136; Pittston Boro, v. Hart, 89 Pa. 389.</p>

<p>Executors and administrators — Foreign administrator — Ancillary administrator — Foreign judgment — Foreign attachment — Conflict of laws— Act of March 15,1832, P. L. 135.</p> <p>1. A domiciliary administrator may sue in his own name in another state on a judgment recovered by him in his representative capacity in the state of the domicile.</p> <p>2. Where a domiciliary administrator in another state brings in the court of the domicile a foreign attachment against a citizen of Pennsylvania, and the defendant appears by counsel and contests the case, and judgment is entered against him, the domiciliary administrator may bring a suit on such judgment against the defendant in Pennsylvania, and it is immaterial that such suit be instituted in his representative character as his official title is surplusage and may be disregarded; and in such a ease it is also immaterial that an ancillary administrator had already been appointed in Pennsylvania before the suit on the judgment was brought. The ancillary administrator under such circumstances cannot sue on the judgment inasmuch as he is not a party to it, nor in privity with the foreign administrator; nor can he sue on the original debt, inasmuch as the debt was merged in the foreign judgment which barred a new action.</p>

<p>Promissory notes — Gift—Question for jury — Pleading—Allegata and probata — Appeals.</p> <p>1. In an action by a mother against her son’s executor on a promissory note in the usual form, made two years before the son’s death and payable three years after its date, the trial judge commits no error in submitting to the jury the question whether the note was given to the mother as a gift, where the mother, on being called for cross-examination, testifies that the note was in fact a gift, that nothing was said between herself and her son as to when it was to be paid, but that she understood that it was to be paid after his death.</p> <p>2. In an action on a promissory note made by a son to his mother, where the affidavit attached to the declaration states that the note was given for a loan, and the proofs at the trial show that it was delivered as a gift, a judgment on a verdict for the mother will not be reversed on the ground of variance, where the question of variance was not raised at the trial, nor plea of surprise then entered, and no assignment of error raising the question is presented to the appellate court.</p>

<p>Mines and mining — Defective mining — Defective support — Negligence —Case for jury — Adjoining landowners.</p> <p>1. Where one takes the risk of injuring others to save trouble or expense to himself in the use or enjoyment of his property, he makes himself liable for any loss his conduct may inflict upon his neighbor.</p> <p>2. In an action against a coal company to recover damages for the destruction of a house and injury to land caused by a slide, the case is for the jury where expert witnesses for the plaintiff testify that the slide was due to the excessive weight of a tramway upon a surface weakened in texture and strength by the escape of mine water through it; that the defendant could have conducted the water in a harmless channel as was customary in such operations; that the tramway could have been fortified by artificial support at small expense; and other witnesses testify that no such thing as a slide had ever occurred at the locality until after the defendant had started mining operations.</p>

<p>Negligence — Damages—Evidence—Inadequacy of charge.</p> <p>1. In a negligence ease against a railroad company where the plaintiff offers some evidence as to injuries to her leg, but produces no evidence whatever as to expenses which had been incurred by reason of the injury, or were yet to be incurred, and no evidence upon which to base an allowance for loss of earning power, it is reversible error for the trial judge to instruct the jury that they were warranted in taking these elements into consideration in making up the verdict without any further directions.</p> <p>2. In a negligence case damages are never presumed; they must be proven, or at least such facts must be established as will furnish a basis for their assessment according to some definite and legal rule. It is the duty of the trial judge to instruct the jury as to the proper measure of damages, and what the law requires in their ascertainment.</p>

<p>Deed — Construction—Interpretation by parties — Evidence.</p> <p>1. In construing a doubtful instrument the contemporaneous construction placed upon the instrument by the acts of the parties themselves will be adopted by the courts.</p> <p>2. Where the terms of a deed are doubtful the courts will adopt that construction which is most strongly against the grantor and in favor of the grantee.</p> <p>3. Where a deed conveying oil and gas with certain rights as to pipe lines, conduits and machinery in or on the grantor’s land, is ambiguous as to whether it includes the right to erect and maintain on the land a pumping station, the court will construe the instrument so as to give such a right to the grantee, if it appears that the latter erected a pumping station on the land and operated it for fourteen years without objection by the grantor.</p>

<p>Building and loan associations — Insolvency—Bights of borrower.</p> <p>1. The duty of a trustee of an insolvent building and loan association is to wind up the affairs of the association in such a manner as to do equity between it and its creditors and between the stockholders. It is the duty of the trustee to require a borrower to repay what he had actually received with interest, and to allow him after all the debts are paid a pro rata dividend with the nonborrowers on the payments made on his stock.</p> <p>2. Where the stockholder of a building and loan association borrows from the association on a mortgage, pledges his stock as collateral security and agrees to pay monthly installments of dues and interest, the payment of dues on stock is not a payment on account of the loan.</p> <p>Affidavit of defense — Practice, C. P. — Averments of conclusions.</p> <p>3. Averments in an affidavit of defense of conclusions merely based on a misconstruction of writings and wholly inconsistent with the writings, will be disregarded by the court.</p>

<p>Beneficial associations — Suits against — Equity—Unincorporated association — Parties.</p> <p>1. The proper method of suing an unincorporated beneficial association is to institute a suit in equity against some of the members as representing themselves and all others having the same interest, and after judgment, to compel the defendants to see that the treasury of the association pays the claim.</p> <p>2. Under the Act of April 28, 1876, P. L. 53, “relieving members of beneficial societies from individual liability for lodge indebtedness,” and providing that “members shall not be individually liable for the payment of periodical or funeral benefits, or other liabilities of the association, and the same shall be payable out of the treasury,” the words “other liabilities” mean all liabilities properly chargeable to the treasury of the society and contemplate obligations in addition to funeral expenses or death benefits.</p> <p>3. Where a suit is brought to protect property rights of a beneficial association, and the legal estate in the property taken or injured is vested by the laws of the association in trustees whose duty it is not only to hold the title, but take charge of the property, the suit should be brought in the name of such trustees.</p> <p>4. The revocation of a charter of a subordinate body of a beneficial association by the supreme body does not have the effect of vesting in the supreme body the property of the subordinate body, and if the supreme body, after the revocation, reissues the charter to certain of the members only of the subordinate body, it does not give them any ■ right of possession of the property peculiar to themselves and apart from the other members of the subordinate body.</p>

<p>Appeal, No. 154, Oct. T., 1911, by plaintiff, from judgment of C. P. Armstrong Co., March T., 1911, No. 244, on verdict for defendant in case of Charles. Reese v. Pennsylvania Railroad Company, a Corporation, Lessee or Owner, and operating the Allegheny Valley Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Patton, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error, assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 198, Oct. T., 1911, by plaintiff, from order of C. P. Armstrong Co., March Term, 1911, No. 241, dismissing petition to quiet title in case of Elizabeth C. Earhart v. James W. Marshall and Kate Marshall.</p> <p>Petition to quiet title.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order dismissing petition.</p> <p>cited: Fearl v. Johnstown, 216 Pa. 205; Kimmel v. Shaffer, 219 Pa. 375; Pifer v. Berkey, 229 Pa. 394; Ullom v. Hughes, 204 Pa. 305; Del. & Hudson Canal Co. v. Genet, 169 Pa. 343.</p> <p>cited: Loveland v. Howe, 2 Lack. L. N. 34; Hutchinson v. Dennis, 217 Pa. 290; Kimmel v. Shaffer, 219 Pa. 375.</p>

<p>Will — Estate in fee simple — Estate for life — Defeasible fee.</p> <p>Testator in his will directed as follows: “I will and bequeath to my wife all my real and personal estate, including my household and kitchen furniture, so long as she remains my widow. In case my wife should marry again she is to have all that is in the house, two cows and two thousand dollars, and the balance of my real and personal estate, in case my wife should remarry, is to go to my six sisters,” naming them. The widow died without having remarried. Held, that the widow took a defeasible fee, which upon her dying without remarrying became a fee simple absolute.</p>

<p>Evidence — Striking out evidence — Harmless error.</p> <p>1. In an action against a carrier, where a witness for the defendant in reply to a question as to the weather testifies that “our record showed that it was clear,” and on cross-examination it appears that the witness had not made the record, the trial judge cannot be convicted of reversible error in refusing to strike out the testimony, where the plaintiff himself subsequently introduces the record in evidence in cross-examination of a witness for the defendant who had made the record.</p> <p>Trial — Charge of court — Mistake of judge — Correction of error — Duty of counsel.</p> <p>2. A party may not sit silent and take his chances of a verdict, and then if it is adverse, complain of a matter which, if an error, would have been immediately rectified and made harmless.</p>

<p>Appeal, No. 88, Oct. T., 1911, by defendant, from judgment of C. P. Westmoreland Co., May T., 1903, No. 205, on verdict for plaintiffs in case of Lemon Marks et al. v. Ligonier Borough.</p> <p>Trespass to recover damages for the appropriation of land.</p> <p>At the trial the jury returned a verdict for $1,931.30 ■ for plaintiffs.</p> <p>On motion for a new trial Galbreath, P. J., specially-presiding, filed the following opinion:</p> <p>The pending case is an action in trespass brought by the plaintiffs against the defendant borough to recover damages alleged to have been sustained by reason of the taking of a portion of ground for reservoir purposes and the laying of water lines in connection therewith. The land so taken is part of a larger tract of fifty-five acres situate in Ligonier township, Westmoreland county, the title to which at the inception of this suit was claimed by the plaintiffs herein and also .by Beck and Brown to whose predecessors in title, the Franklin Investment Company, the borough of Ligonier gave bond when it entered upon and appropriated the land for reservoir purposes. Subsequent to that time the title of the Franklin Investment Company, through sundry conveyances, vested in John E. Beck and George Brown. The title to the land taken for reservoir purposes being thus in dispute, said Beck and Brown brought an action in ejectment against the present plaintiffs and Marks’ heirs at No. 481, August Term, 1907, for the said larger tract of fifty-five acres claimed by both parties. The verdict of the jury in that case was as follows: “Now, to wit: 21 February, 1908, we, the jurors empanelled in the above entitled case, find for the defendants the five acres as per Exhibit No. 5; also the eleven acres and one hundred perches as per Deed Book 64, page 66, a total of sixteen acres and one hundred perches; the balance of the fifty-five acres in dispute to go to the plaintiffs with six cents damages and costs.”</p> <p>The deed referred to in the above-recited verdict was made by Catherine Wadsworth to Nancy Marks, who was the mother of the present plaintiffs, and described the land conveyed as being “bounded on the North by Washington Furnace Run; by the Furnace Lands on the East and South and on the West by lands of the said Nancy Marks and Joseph Naugle, containing eleven acres and one hundred perches.”</p> <p>There is no question as to the location of the five acres as shown on exhibit No. 5 in that case. The controversy arises over the true location of the eleven acres and 100 perches described in the deed recorded in Deed Book 64, p. 66. Plaintiffs claim that the reservoir site is a portion of the land described in said deed. The defendants contend that it is not.</p> <p>It appears that no location of the eleven acres and 100 perches can be made which will, in all respects, fit in with 'the description found in the deed, nor is it necessary that the description should be technically correct provided it is sufficiently precise to enable a surveyor to locate it. On the trial of the case a plot or draft was offered in evidence, showing the location of the land as claimed by the defendant and which, while not fitting in precisely with the description in said deed, yet conformed thereto in reasonable measure and which so located the land as to exclude the reservoir site. No plot or draft was introduced on part of the plaintiffs to locate their claim to the eleven acres and 100 perches. They offered oral testimony, however, tending to show that it could with an equal degree of certainty be so located as to include the reservoir site. It was brought out also on cross-examination of W. H. Mathews, a surveyor called as a witness by the defendant, that if certain facts in evidence were assumed he would have located the eleven acres and 100 perches where the reservoir now is. In addition to this it was testified by W. H. Buell, a witness on part of the plaintiffs, that his father who sold the land to Catherine Wadsworth, who made the aforesaid deed to Nancy Marks, did not convey all the land owned by him, but reserved the northwest portion lying north of the five-acre tract owned by the Marks. If this be correct it follows that the portion so retained not having passed to Catherine Wadsworth did not therefore pass by her deed to Nancy Marks, but the portion so retained is included in defendant’s draff, exhibit No. 1, above referred to. If its inclusion was therefore an error it is evident that the plot must be extended eastward and so exclude the reservoir site in order to make up the eleven acres and 100 perches.</p> <p>These matters are adverted to for the purpose of showing that the location of the land described in Deed Book 64, p. 66, was a question of fact to be determined by the jury and not one of law to be determined by the court, as contended for by defendant’s counsel. The land as described in said deed can with almost equal degree of certainty or uncertainty be located so as to include or exclude the reservoir site. This being true, the court on the trial of the case, admitted oral testimony showing the occupancy of the reservoir site by the Wadsworths before the said deed was made and by Nancy Marks and those holding under her after the making of said deed. This testimony tended to show the understanding of the description in the deed by the parties whose negotiations and intentions were merged in it and helped to solve the latent ambiguity growing out of the situation.</p> <p>The form of the verdict is as follows: “And now, to wit: December 1, 1909, we, the Jurors empanelled in the above entitled case, find for plaintiffs. We find the reservoir is on the eleven acres, one hundred perches belonging to Marks Heirs, as on Exhibit No. 5. We find damages in the sum of $1931.30 and costs.” This verdict is inartfully drawn in that it connects the eleven acres and 100 perches with exhibit No. 5, instead of with the description contained in the deed recorded in Deed Book 64, p. 66. The purport, however, is clear and the verdict should be given the effect of its evident meaning and this can well be done by discarding as surplusage its reference to exhibit No. 5. It is also urged that the verdict is excessive. The evidence relative to the amount of damage sustained, it may be conceded, was not only conflicting, but lacking in that degree of definiteness which is desirable. When we consider, however, that the land was appropriated some fourteen years ago and that the witnesses were required to give their estimates as of that time, it is not surprising that the evidence is less satisfactory than could be desired. But we may assume that after this interval of years, the evidence adduced was the best possible under the circumstances. The length of time since the taking of the land accounts also, in part, no doubt, for the amount of the verdict, which represents not only the compensation due the plaintiffs for the damage sustained at the time the land was taken, but also that arising from the detention of such damage from the time it was sustained up until the date of the trial and verdict. On a former trial of the case, more than five years prior to that now under consideration, a verdict was rendered for the plaintiffs in the sum of $775.</p> <p>We are well aware that the situation arising from any verdict and judgment in this case in favor of either party is unsatisfactory in that it does not necessarily settle the question of the location of the eleven acres and 100 perches of land between the present plaintiffs and Beck and Brown, who are not parties to the pending action, but that fact in no way militates against the right of the plaintiffs to prosecute their claim for damages as they have done in this case against the defendant borough.</p> <p>When we consider that almost eight years have elapsed since the bringing of this suit, that two trials of the action have resulted in verdicts for the plaintiffs and that the principal question involved is one of fact for the jury and not of law to be declared by the court, and not being convinced of any serious error committed in the trial of the case, we conclude that the rule for a new trial should be discharged and it is discharged accordingly and judgment is directed to be entered on the verdict, sec. reg.</p> <p>Errors assigned were various instructions by which the court submitted the question of the location of the land to the jury.</p> <p>When the location of land described in a deed is certain it needs not a jury to distinguish it from'another tract. If it be admitted that the boundaries of the tract of land actually exist on the ground as named in the deed, the jury should not interpret the deed or determine that the land is in another place: Hughes v. Westmoreland Coal Co., 104 Pa. 207; Harvey v. Vandegrift, 89 Pa. 346.</p>

<p>Appeal, No. 124, Oct. T., 1911, by defendant, from judgment of O. & T. Somerset Co., Feb. T., 1911, No. 7, on verdict of guilty of murder of the first degree in case of Commonwealth v. Henry Brent.</p> <p>Indictment for murder. Before Kooser, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder of the first degree.</p> <p>Errors assigned were as follows:</p> <p>1. “ The court erred in saying to the jury, ‘The offense is murder of the first degree.’ These words form the conclusion of the instructions as to murder of the first degree, but they are a separate expression; they are just such an expression as the jury would seize and construe to be an expression of the opinion of the court that the jury should convict of murder of the first degree.”</p> <p>2. “ The court erred in his answer to defendant’s first point which is as follows: ‘The burden of proving every element of any offense is on the commonwealth and never shifts or changes.’ The answer was as follows: ‘I affirm that. The commonwealth must satisfy your minds beyond a reasonable doubt of every material element of the charge against the defendant, but when the defendant sets up as a defense that he was intoxicated to a degree that he was incapable of forming a willful, deliberate and premeditated intent to take life, the burden rests upon the defendant to satisfy you of such degree of intoxication, not beyond a reasonable doubt, but by a preponderance of the evidence.’ The court erred in that he did not affirm this first point without qualification. He further erred in not defining to the jury the meaning of the phrase “preponderance of the evidence.” The qualification destroyed the force of the court’s affirmation of the point. The court further erred in emphasizing the matter of premeditation when there was no evidence offered by the commonwealth to show premeditation,”</p> <p>3. “ The court erred in his answer to the fourth point which was as follows: 'The defendant is entitled to the benefit of any reasonable doubt that may exist in the mind of any one of the jurors who try him, after a calm, full and passionless consideration of all the evidence submitted.’ The answer was as follows: ‘The verdict of a jury in the criminal courts in Pennsylvania must be unanimous, and of course as there cannot be unanimity so ,long as anyone persist he is in possession of a reasonable doubt, there cannot be a verdict of guilty, and so far that condition of this point is affirmed, but it is the duty of the jurors to discuss and weigh and carefully consider the testimony of the case and all the facts in the case and to arrive at a unanimous conclusion if they can. If they cannot it results in a mistrial, of course. A reasonable doubt is not a doubt that you can summon up out of nothing, to escape a duty that might seem disagreeable or burdensome, but that doubt must arise and stand upon the testimony in the case. If the testimony raises such a doubt in the mind of a juror or more than one juror so as to prevent a unanimous verdict of the jury, that of course enures to the benefit of the defendant as stated in this point.’ The point should have been affirmed without qualification. The attempted definition of reasonable doubt fails to give any adequate notion of what constitutes a reasonable doubt.”</p> <p>4. “ The court erred in his answer to the fifth point, which was as follows: ‘It is the duty of any one of the jurors in whose mind, after a careful consideration with his fellow jurors of all the evidence, a reasonable doubt exists as to any essential element of first degree murder, to refuse to convict the defendant of first degree murder.’ The answer was as follows: ‘As I have said to you in the other point, it is the duty of the jurors to weigh together and carefully consider the evidence and arrive at a conclusion if you can. I have already answered you that if a reasonable doubt exists as to any essential element of murder of the first degree, you could not convict of murder of the first degree, but if on the other hand there would be no such doubt it follows you should convict, and just as I have said with reference to the preceding point, there must be unanimity of verdict, and as long as one juror has a reasonable doubt, it is his duty to weigh the testimony with the others and banish the doubt if he can.. If not it enures to the benefit of the defendant.’ The court erred in this that he did not affirm the defendant’s fifth point without qualification.”</p> <p>5. “The court erred in his answer to the defendant’s sixth point, which was as follows: ‘Evidence of good character is to be regarded as a substantial fact, like any other tending to establish the defendant’s innocence, and ought to be so regarded by the court and jury.’ The court erred in not affirming this point without qualification and further erred in reading and answering it in connection with the seventh point.”</p> <p>6. “ The court erred in his answer to defendant’s seventh point, which was as follows:' ‘Evidence of good character is not a mere makeweight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence and may of itself, by the creation of a reasonable doubt, produce an acquittal.’ The answer to the sixth and seventh points was as follows: ‘That is true and these points are affirmed, that is to say, good character may work an acquittal, but good character is to be considered not by itself so as to work an acquittal upon it alone. It may of itself raise a reasonable doubt, but it is to be considered, together with the other testimony, and if all the testimony raises such doubt it operates as I have said to the benefit of the defendant in his acquittal. If not, if after considering all the testimony you have no reasonable doubt of the defendant’s guilt, and the degree of the crime, you will render your verdict accordingly.’ The court erred in that he did not answer these points separately. The court further erred in that he did not affirm each of them separately and without qualification. The court further erred in that he misstated the law as to evidence of good character in saying, ‘Good character is to be considered not by itself so as to work an acquittal upon it alone.’ Good character may be the only defense and may work an acquittal with nothing else. In this case the good character for peace of the defendant was entitled to very careful consideration. The manner in which the points were read and their being answered as they were, robbed them of all force in the minds of the jury.”</p> <p>7. “ The court erred in his answer to the eighth point, which was as follows: ‘If jury believe from the evidence that at the time of the killing, the defendant, Henry Brent, did not know the consequences of his act and did not commit said act in pursuance of a previously formed purpose or design, then the law does not regard him as guilty of murder of the first degree.’ The answer was as follows: ‘I affirm that point, saying to you as I did before that purposes may be formed quickly or may be of a longer standing.’ The court erred in not affirming the point without qualification. • What difference did it make as to when a purpose could be formed if the defendant could not form an intent? ”</p> <p>8. “The court erred in overruling the motion for new trial and in arrest of judgment.”</p>

<p>Appeal, No. 99, Oct. T., 1911, by plaintiff, from judgment of C. P. Somerset Co., May T., 1907, No. 282, on verdict for defendant in case of Newton A. Mostoller v. The Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

Appeal, No. 189, Oct. T., 1911, by plaintiff, from judgment of C. P. Venango Co., Aug. T., 1908, No. 83, on verdict for defendant in case of Second National Bank of Pittsburg v. Taylor Hoffman. Assumpsit on a promissory note. Before Criswell, P. J. ■ The facts appear by the opinion of the Supreme Court and by the previous report of the case in 229 Pa. 429. At the trial the plaintiff presented these points: 2.

Appeal, No. 46, Oct. T., 1911, by plaintiffs, from decree of C. P. Greene Co., No. 106, in Equity, in case of E. R. Clovis, J. C. Clovis and E. R. Clovis, Guardian of F. M. Clovis, v. H. J. Price, Smith Hood, Jr., and W. K. Hatfield. Bill in equity for the cancellation of a contract for the sale of coal. Cross bill for specific performance. Porter, P. J., specially presiding. The case turned on questions of fact.

Appeal, No. 68, Oct. T., 1911, by defendant, from judgment of C. P. Greene Co., June Term, 1908, No. 91, on verdict for plaintiff in case of Lizzie J. Curtin v. People’s Natural Gas Company. Assumpsit upon a parol contract to recover the purchase price of articles sold by the plaintiff to the defendant.

Appeal, No. 204, Oct. T., 1911, by plaintiff, from judgment of C. P. Indiana Co., June T., 1910, No. 79, on verdict for defendant in case of Frank H. Horton v. W. H. McCall. Ejectment for lands in Banks township. Before Tel-ford, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned among others was (1) in directing verdict for the defendant.

<p>Election law — Candidate’s petition — Apparent regularity — Duty of county commissioners — Withdrawal from petition — Act of February 17, 1906, P. L. 36.</p> <p>1. It is the plain duty of the county commissioners, under the Act of February 17,1906, P. L. 36, when a candidate’s petition is presented to them, even though it be regular on its face, to inquire whether the requirements of the act have been complied with in regard to the number of signers and their qualifications as electors of the division.</p> <p>2. In such a case the commissioners have authority to refuse such a petition, where it appears that ten of the fifty-six signers of the petition had been induced to sign upon a false representation that the candidate was a democrat and had withdrawn from the petition, and that the remaining signers were not qualified voters of the democratic party.</p> <p>3. There is nothing in the relation of a signer of such a petition to the other signers that would make it inequitable for them to withdraw.</p> <p>Mandamus — Practice, C. P. — Alternative vorit — Act of June 8, 1893, P. L. S/t5.</p> <p>4. It is only where the right to require the performance of an act is clear that a peremptory mandamus may be awarded in the first instance. An alternative writ under the Act of June 8, 1893, P. L. 345, should be asked in a proceeding to compel county commissioners upon petition to print a candidate’s name on the ballots under the uniform primary act.</p>

<p>Equity — Injunction—Jurisdidion—Ordinance—Police power — Street railway — Threat to arrest employees — Municipalities.</p> <p>1. Equity has jurisdiction to interfere by injunction against a municipality where the validity of a police power ordinance is in question, and there is a threat to take the employees of a street railway company off its cars by arrest.</p> <p>Municipalities — City of the third class — Penal ordinances — Regulation of common carriers — Standard of care — Safety devices — Powers.</p> <p>2. In the absence of express authority conferring the power of enactment such a penal ordinance as one purporting to regulate the safety devices to be adopted-by a street railway, which undertakes to enforce a higher standard than that imposed by the principles of common-law, should not be sustained.</p> <p>3. An ordinance of the city of New Castle, a city of the third class, required all companies operating street railway lines in the city to equip every car operated with “the latest, best and most approved safety brakes,” and specified by name two kinds of brakes to be used, with provision for fine or imprisonment for violation of the ordinance. On appeal from a decree dismissing bill praying for an injunction declaring the ordinance invalid, held, that there is nothing in the Act of February 25,1869, P. L. 249 (incorporating the city of New Castle), in the Act of May 16,1901, P. L. 224, or in the Act of March 22,1887, P. L: 8, which confers upon the city the express right to enact such an ordinance; nor has the city any incidental or implied power which would enable it to do so.</p> <p>Railroads — Operation of road — Duty to protect public — Board of directors.</p> <p>4. In the operation of its road and in the running of its cars the judgment of the board of directors of a railroad company, in the absence of statutory provision, is supreme and exclusive. The public safety imperatively requires that there be no division of this great responsibility with others, not even municipalities. What particular means shall be employed to protect the public is left to the company, the law merely demanding and requiring reasonable care.</p>

<p>Practice, C. P. — Statements—Allegata and probata — Evidence—Negotiable instruments — Promissory notes — Guaranty—Nonsuit.</p> <p>1. The purpose of pleading is to form a clear and distinct issue for the trial of the cause between the parties. The statement should be sufficiently explicit to enable the defendant to prepare his defense. A plaintiff cannot file a statement which avers one cause of action, and be permitted, on the trial, to prove a different cause of action. He must state the claim on which he will rely to recover so clearly and concisely that the defendant may be fully advised as to what he is called upon to meet.</p> <p>2. In an action of assumpsit by a bank, as payee, against a corporation, brought to recover on a contract guaranteeing the payment of a promissory note for $5,000, dated February 10, 1903, where the declaration avers that the money for which the note in suit was given was borrowed by the maker on February 10,1903, and that it was borrowed for the defendant company and was the consideration for the alleged guarantee, the plaintiff is not entitled, under the pleadings, to the admission of testimony offered to prove that the note in evidence was a renewal of another note of like amount between the same parties, dated May 1, 1900, on which the maker received the money which was passed to his credit on the books of the bank; that the plaintiff bank loaned the maker $5,000 on May 1, 1900, for which he gave it his note of that date and deposited with the bank certain collateral and that said loan was made for the benefit of the defendant company; that on May 4, 1900, the maker drew his check for $5,000 to the defendant’s order; that the note was renewed from time to time until February 10, 1903, when the maker made a new note to the plaintiff bank for $5,000, and withdrew a part of the collateral which he deposited with the original note and which had remained with the bank as collateral during the time of renewal and the defendant, in order to enable him to withdraw the collateral and in consideration of having received the $5,000 on May 4, 1900, made the contract on which the suit was brought.</p> <p>3. Since in such case it is manifest that if, as alleged in the offers, the loan was obtained for the defendant’s benefit, it was procured by the maker individually from the bank; and that if the defendant borrowed the $5,000 obtained by the maker from the bank it was borrowed from the maker and not from the bank and that the loan could not have been procured on the faith of, or by virtue of, the contract of guarantee since the guarantee was not then in existence, and since it could not be successfully contended that the defendant received any benefit in 1903 by reason of the guarantee for the reason that the forbearance or extension of time given the maker by the renewal of his note in that year and the exchange of the collaterals were of no benefit to the defendant company, it not being liable to the plaintiff for the loan, it follows that even if the offers of evidence were admitted there could be no recovery and, therefore, a nonsuit entered by the court below will not be disturbed on appeal.</p> <p>Corporations — Unauthorized act of officers — Guaranty.</p> <p>4. Where a person seeks to hold a corporation liable on a guaranty made by its officers without authority, the burden is upon him to show that the corporation received and retained the benefit of the unauthorized .act of its officers.</p> <p>Appeals — Assignments of error — Rejection of evidence — Reference to page in paper-book.</p> <p>5. An assignment of error to the rejection of evidence is insufficient and improper, if it fails to give a reference to the page of the paper-, book or appendix, where the offer and rejection of the evidence may. be found.</p>

<p>Judgment — Opening judgment — Warrant for confession of judgment— Cancellation — Novation. .</p> <p>1. Judgment on a single bill will be stricken off where it appears that the note upon which judgment was entered had been marked “Paid” more than two years before by the deliberate and intentional act of the judgment'plaintiff, in pursuance of an understanding by which it took over as owner the equivalent of the note in bonds pledged as collateral security therefor, and credited this payment on its books; that there was no clerical error in so marking the note;-and that there was substituted for the note a written agreement by which the defendant undertook to save the plaintiff from loss up to the amount of the note, liability under which is not denied; and it makes no difference that the whole transaction was entered into under a mutual mistake of law as to the validity of the lien of the mortgage upon which the bonds were secured, as a result of which the plaintiff failed to realize anything on the bonds. In such a case the note ceased to be in itself a valid obligation, and the warrant on it was no longer authority for the confession of judgment.</p> <p>2. As a general rule a judgment, regular on its face, will not be stricken off, but when jt is entered wholly without authority it may be stricken off, for it is no judgment at all, so far as it affects the rights of the defendant.</p>

<p>Appeal, No. 192, Oct. T., 1911, by respondent, from order of C. P. Lawrence Co., March Term, 1911, No. .86, In re Petition of Western Allegheny Railroad Company for connection with the Pittsburg & Western Railroad Company.</p> <p>Proceedings under the act of April 4, 1868, for connection of tracks of railroad companies. Before Porter, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in dismissing exceptions to report of jury and in approving said report.</p> <p>The provision in the constitution that every railroad company shall have the right to intersect, connect with or cross any other railroad, does not change the policy of the statute as embodied in the act of June 19, 1871, to prevent railroad crossings at grade where that is reasonably practicable: Northern Central Ry. Co.’s App., 103 Pa. 621; Pittsburg Junction R. R. Co.’s App., 122 Pa. 511; Lake Shore & Michigan So. Ry. Co. v. N. Y., etc., Ry. Co., 8 Fed. Repr. 858; Pitts. & Lake Erie R. R. Co. v. Lawrence County, 198 Pa. 1; Pittsburg Junction R. R. Co. v. Ft. Pitt Pass. Ry. Co., 192 Pa. 44; Perry County R. R. Extension Co. v. Newport & Sherman’s Valley R. R. Co., 150 Pa. 193.</p> <p>The petitioner has the constitutional right to connect with the respondent railroad subject to the control of a court of equity under the provisions of the act of 1871: Smethport R. R. Co. v. Pittsburg, Shawmut & Northern R. R. Co., 203 Pa. 176.</p> <p>The act of 1871 applies to a crossing over a branch road or siding: Pennsylvania R. R. Co. v. Conshohocken Ry. Co., 4 Pa. Dist. Rep. 12; Pennsylvania Schuylkill Valley R. R. Co. v. P. & R. R. R. Co., 160 Pa. 232; Pensylvania Co. v. R. R. Co., 204 Pa, 356.</p>

<p>Appeal, No. 194, Oct. T., 1911, by defendant, from judgment of C. P. Lawrence Co., March T., 1906, No. 93, on verdict for plaintiff in case of Katherine Weinschenk, Executrix of George G. Weinschenk, deceased, v. Western Allegheny Railroad Company.</p> <p>Appeal from report of jury of view. Before Porter, P. J.</p> <p>At the trial, while the witness, Henry Weinschenk, was on the stand, the following questions were asked:</p> <p>“Q. Did it have a value in addition to the use that had already been made of it? A. Well, that is all the value of it — that is all the use but of course we could have made other uses of it. Q. What other uses would it have had?”</p> <p>Objected to as incompetent and immaterial.</p> <p>The Court: We will allow the witness to state what other uses the spring reasonably could be put to, considering the character of the land and the purposes for which it was used or adapted. The witness may answer the question and an exception is sealed for the defendant.</p> <p>Question read witness.</p> <p>“A. Why, the spring being an exceptionally strong spring could have been cleaned out and fixed for drinking purposes, and used for irrigating, being nice clear water it would have been exceptionally well adapted for that purpose. Q. Would it or would it not have a value for household use? A. Yes.”</p> <p>Defendant’s counsel object and ask that the last and preceding answers be stricken out and withdrawn from the jury.</p> <p>. The Court: We will allow the evidence to stand and seal an exception for the defendant. [1]</p> <p>“Q. Where has the water been obtained for this garden and other purposes necessary on this land since the railroad was constructed over this spring?”</p> <p>Objected to as incompetent.</p> <p>Counsel for plaintiff propose to show that this particular spring having been taken plaintiff has been compelled to go outside of the premises for water for garden and all other purposes on the land.</p> <p>Objected to as incompetent and immaterial.</p> <p>The Court: The witness may answer and an exception sealed for the defendant. [2]</p> <p>“A. Well, the spring that is located on the Sweikert farm. Q. Amd not on these lands? A. No, sir. Q. And it is not on this land, that spring? A. No, sir.”</p> <p>F. E. Alborn was asked these questions:</p> <p>“Q. What was this land worth just prior to the time the railroad entered and appropriated this land? A. Well</p> <p>for the purpose it was used- Q. What was it worth</p> <p>on the market? A. About $500 per acre. Q. And taking into consideration, Mr. Alborn, the fact that the railroad company went there and went through the center of it from north to south and took a strip of ground 100 feet wide, containing 2.59 acres, in the manner in which the roadway is constructed and for the purpose of operating a railroad thereon the full width of 100 feet or the full width of the right of way, what, in your opinion, would be the market value of that land afterwards?”</p> <p>Objected to as being incompetent and irrelevant, the question of the manner in which the railroad bed was constructed is not an element to assess damages by. Question read at suggestion of court.</p> <p>The Court: The witness may answer and an exception is sealed for defendant. [3]</p> <p>"A. About half.”</p> <p>C. B. Reno was asked these questions:</p> <p>“Q. What was the market value of this land as a whole affected by the taking of the land and the operation of the railroad upon it? A. Well, from a third to a half. Q. What would you say that was? A. In dollars? Q. Yes, for 26.12 acres I believe of it originally. A. I would say it was a damage to the farm of $5,000, that includes the spring, as I view it the land taken and the perpetual damage to the farm.”</p> <p>Cross-examination by Mr. Martin:</p> <p>“Q. What do you include in the perpetual damage to the farm, Mr. Reno? A. The annoyance from the persons operating it watching the trains going back and forward, causing delay.in their work, the delay of the employees, the danger attendant to grade crossing and things like that. Q. What else do you include in that? A. I would include the damage to growing crops by soot and smoke falling on them, necessitating loss of the stuff itself, beside the inconvenience — the greater inconvenience in preparing the same for market, I would add that. Q. Anything further? A. Not further than what was stated in my direct examination — not that I think of now. Q. You say you include in that the loss of the employees doing their work? A. Yes, sir. Q. What do you mean by that? A. I mean the natural tendency of the human family when a train is going along the road to stop work and watch that train for a few minutes. Q. And you include that in your estimate of $5,000? A. Yes, sir, I did. Q. Do you also include in that the possibility or probability of having the crossings stopped by trains crossing? A. The annoyance caused by that, yes, sir.”</p> <p>Counsel for defendant now moves the court to strike out and withdraw from the consideration of the jury all the testimony of this witness, for the reason that he includes in his estimate of damages elements that are not proper to be included in an estimate of damages in this character of cases.</p> <p>Mr. Aiken: The witness has only stated the facts in connection with the ordinary operation of a railroad.</p> <p>The Court: We will permit the testimony to stand, upon the condition, however, that the witness will eliminate and we now instruct the witness, that the natural tendency of the human family to stop and look at moving objects is not a proper matter for compensation in this case. You will have to eliminate that from your estimate of damage. You can state your damage after eliminating that factor, because that is not such a factor as the jury can consider in determining the damages.</p> <p>Judge Martin: We ask an exception to the ruling of the court.</p> <p>The Court: You may inquire further on that point. An exception is sealed for defendant.</p> <p>Mr. Aiken: “Q- You have stated, Mr. Reno, that the total damage is $5,000 to this piece of land? A. Yes, sir. Q. Now, would you reduce that on account of this item being eliminated, if so, to what extent? A. I don’t think I would.”</p> <p>Judge Martin: I now renew my request to strike out the entire testimony of this witness on account of the fact that he has included in his testimony items that are not proper to be included in an estimate of damages in a case of this character.</p> <p>The Court: I do not recall any other item he included that is not proper to consider. I cannot think of any now. We will overrule the motion and seal an exception ■for defendant. [4]</p> <p>Verdict for plaintiff for $6,354.28 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were (1, 4) in various rulings on evidence as above.</p> <p>The manner of construction was for the company and not an element in assessment of damages any more than evidence as to the value of the property before completion, and this is not admissible: Hoffman v. Bloomsburg & Sullivan R. R. Co., 157 Pa. 174.</p> <p>Where evidence has been improperly admitted, which tends to prejudice the minds of the jurors, the error is not cured by an instruction in the charge disregarding or to ■withdraw it from their consideration: Willock v. Beaver Valley R. R. Co., 222 Pa. 590; s. c., 229 Pa. 526; Hamory v. Pennsylvania, Monongahela & Southern R. R. Co., 222 Pa. 631.</p> <p>The land had been used for gardening, and on this land was the spring of water, and it was proper for the witness “to include in his estimation any and every feature and consideration which in his judgment would influence the general buyer.” Savings & Trust Co. v. It. It. Co., 229 Pa. 484; Wilmington & Reading R. R. Co. v. Stauffer, 60 Pa. 374.</p> <p>Any burden cast upon the land by the construction of the railroad which detracts from its value is to be considered by the jury in determining the damages: Port v. R. R. Co., 168 Pa. 19; Holier v. Canal Co., 87 Pa. 221; Western Penna. R. R. Co. v. Hill, 56 Pa. 460; Comstock v. Ry. Co., 169 Pa. 582.'</p> <p>The credibility of the witness Reno and the value and weight of his testimony were for the jury: Brennan v. R. R. Co., 230 Pa. 228; Lewis v„ Springfield Water Co., 176 Pa. 230.</p>

<p>Appeal, No. 199, Oct. T., 1911, by defendant, from judgment of C. P. Lawrence Co., Dec. T., 1908, No. 34, on verdict for plaintiff in case of Charles Hobel v. Mahoning & Shenango Railway & Light Company.</p> <p>Trespass for personal injuries. Before Porter, P. J.</p> <p>The opinion of the Supreme Court states the case. See 229 Pa. 507.</p> <p>Error assigned was in refusing defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 2, Oct. T., 1911, by defendant, from judgment of C. P. Beaver Co., Nos. 138, and 145, June T., 1908, on verdict for plaintiff in case of Naomi Martin v. Borough of Baden.</p> <p>Appeals from award of viewers. Before Holt, P. J.</p> <p>In the year 1906, the borough of Baden in Beaver county, improved a number of its streets, one of which, Schiller street, was graded, and one, State street, being one and five-eighths miles in length,-was widened, graded, curbed and paved with concrete and brick. After the improvements were completed, on petition of the borough under the Act of May 16, 1891, P. L. 75, to assess benefits and award damages caused by the improvement, viewers were appointed. The plaintiff, Naomi Martin, an owner of property on both streets, was not awarded any damages by the viewers and thereupon an appeal was taken to the common pleas.</p> <p>Verdict for plaintiff for $3,529.33 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were as follows:</p> <p>1. The court erred in admitting ordinance No. 19 of the borough of Baden, it being an ordinance granting a franchise to the Ambridge and Baden Electric Street Railway Company to construct and operate a street railway on State street in said borough; the ordinance being incompetent, irrelevant and immaterial.</p> <p>2. The court erred in refusing to instruct the jury as requested by the defendant, as follows:</p> <p>If the jury believe that the property of the plaintiff by reason of the improvement of State street has been benefited over and above the damage sustained, they can find in favor of the defendant and against the plaintiff in a sum not to exceed $900, that being the total amount of damages awarded by the jury of view that the borough was compelled to pay by reason of said improvement.</p> <p>3. The court erred in admitting testimony showing that plaintiff was deprived of the use of her mill while it was being raised and consequently suffered a loss in business.</p> <p>4. The court should have instructed the jury that when the plaintiff gave her consent to the borough to raise her mill building so as to conform to the new grade of the street, that she thereby assumed the risk of any injuries done in the raising thereof, and that having given her com sent, she has no standing now to complain of the manner in which it was raised.</p> <p>5. The court erred in not admitting testimony per-. mitting the defendant to show what the plaintiff had paid for the mill and machinery a few years prior to the time it was raised by the defendant. The only difference in the property and machinery therein at the time plaintiff purchased it and at the time it was raised being a secondhand gas engine, the cost of which was testified to by one of the. plaintiff’s witnesses.</p> <p>6. The court erred in admitting the testimony of J. D. Frazier to testify as to the injuries done to the property of the plaintiff for the reason that he did not see the property until two years after the building and machinery were raised.</p>

<p>Negligence — Master and servant — Defective machinery — Notice — Promise to repair — Continuing in employment — Boroughs.</p> <p>1. A servant may be guilty of contributory negligence in continuing to use a machine which he knows to be in dangerous condition, notwithstanding he has protested against such use, and received the master’s promise to repair; but the test of contributory negligence in such case is whether the danger in using the machine was so imminent that no man of ordinary prudence would assume the risk. Except where the danger is so imminent that a reasonably prudent man would not incur it, the servant may, in reliance on the promise of the employer to remedy it, remain for a reasonable period in the employment without forfeiting his right to recover for injuries received because of these conditions.</p> <p>2. In an action by an employee against his employer, a borough, to recover damages for injuries sustained by reason of the breaking of an engine of which plaintiff was in charge, the questions of defendant’s negligence and of plaintiff’s contributory negligence are for the jury where it appears that more than a month before the accident, defendant’s attention was called to the defective condition of the engine, and repairs were made without remedying the condition, of which fact defendant had notice; that subsequently the plaintiff again called the defendant’s attention to the defective part and at the same time expressed the opinion that its condition made it dangerous to operate and the defendant’s representative replied, “We will have to have the light, George, you go on running and we will have it repaired;” and that plaintiff with full apprehension of the danger continued in employment on the assurance that the defect would be remedied.</p>

<p>Negligence — Railroads—Imputed negligence — Automobiles—Passenger —Contributory negligence.</p> <p>In an action against a railroad company to recover damages for personal injuries, the case is for the jury where it appears that the owner and operator of an automobile was engaged to take a lunatic to an asylum; that the plaintiff and another attendant, who were in charge of the lunatic, were seated with him on the back seat; that they were traveling on a borough street which crossed the defendant company’s road at grade; that the buildings on either side of the street shut off any view of the railroad until a point eighteen or twenty feet from the tracks was reached, from which there was an unobstructed view for several hundred feet; that the driver, when twenty-five or thirty feet from the track, slackened the speed of the automobile almost to a full stop and then suddenly started it forward and ran onto the crossing, where the automobile was struck by a shifting engine of the approach of which no notice was given; and it further appears that the lunatic became excited as the speed of the automobile was slackened, and the plaintiff’s attention was partly directed to him, but he looked and listened for trains, and plaintiff testifies that he saw the driver of the automobile slacken its speed until it was almost at a standstill and he thought the driver was going to bring it to a full stop.</p>

<p>Appeal, No. 153, Oct. T., 1911,,</p> <p>by plaintiffs, from decree of C. P. Butler Co., June T., 1910, No. 4, in Equity, dismissing bill in suit of Mary E. Berg et al. v. The Butler Savings & Trust Company.</p> <p>Bill in equity to restrain the obstruction of an alleyway, and for damages. Before Galbreath, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Appeal, No. 197, Oct. T., 1911, by defendant, from decree of C. P. Butler Co., Dec. T., 1907, No. 6, in Equity, granting partition in case of W. D. Brandon and Ella Harley, Guardian of Edna E. Harley, v. Margaret McKinney, widow, James McKinney, M. H. McKinney, D. T. McKinney, T. D. McKinney, W. S. McKinney, Robert McKinney, H. B. McKinney, A. F. McKinney, Mrs. Mary B. Wahl, Mrs. Clara McKinney, E. M. Saylor and T. W. Terwilliger, A. F. McKinney, and Robert McKinney, executors of the last will of C. A. McKinney, deceased.</p> <p>■ Bill in equity for a partition. Before Galbreath, P. J.</p> <p>It appeared by the record that C. A. McKinney died .March 13, 1887, testate and seized of the land sought to be apportioned. By his last will and testament he directed that sufficient of his land be sold to pay all just claims against his estate. Of the balance, one-third was given to his wife, Margaret, and minor children, should there be any, and he directed that after the decease of his wife, his farm be sold and the proceeds divided equally among his Surviving children. Two of his sons, Amos, and Robert, were appointed executors of his will.</p> <p>On December 17, 1888, a lease for oil and gas purposes on a portion of the land was made by the widow and heirs of decedent to I. G. Smith by virtue of which operations were subsequently carried on and oil produced and a one-eighth royalty interest thereof was run to the credit, in the pipe line, of the widow and children of C. A. McKinney, deceased, pursuant to a division order signed by all of them and delivered to the National Transit Company February 28, 1891, certifying that they were the legal owners of said royalty interest and the proceeds of sale of said royalty interest were received by said widow and heirs. This lease was joined in by leave of court by W. D. Brandon as guardian of Margaret Eva McKinney, then a minor, subsequently married to George H. Harley. At the time of the execution of this division order, which was after her marriage, she was of lawful age and signed the same and thereafter received her portion of the oil.</p> <p>A lease for oil and gas purposes bearing date October 15, 1889, to Stewart and Hoffius was executed by the widow and all the children of C. A. McKinney, deceased, for thirty acres of said land, which lease was signed also by William Wahl and George H. Harley, husbands of the two • married daughters of decedent, but was not acknowledged ' in any form by said married daughters. Operations were carried on under said lease and oil was obtained and a division order bearing date October 7,1890, signed by the widow and all the heirs of said decedent was delivered to the National Transit Company and the oil and the proceeds thereof were divided accordingly.</p> <p>A lease for oil and gas purposes was also made to Dale and Thompson for a portion of said land, the date of which lease and the names of the parties executing it do not appear as the contract of lease could not be found. A bonus of $600 was paid on said lease which was used to pay debts as far as required against the estate of said decedent and the balance thereof was divided among the widow and heirs. Operations were carried on under said lease and oil obtained in paying quantities and a division order dated November, 1890, signed inter alios by the widow and all the children of C. A. McKinney, deceased, representing the one-eighth royalty in the oil produced under said lease, was delivered to the National Transit Company and the proceeds of the sale of the royalty interest were received by the said widow and children of said decedent accordingly during the time oil was produced from said leasehold.</p> <p>A lease for oil and gas purposes of a portion of said land and signed by all the defendants was given to E. M. Saylor and T. W. Terwilliger dated September 1, 1905, under which the said land had been and is now being operated for oil and gas purposes and large quantities of oil from time to time have been produced from said land. Operations thereon were begun about the latter part of November, 1905, and are still being carried on and oil is still being produced therefrom and the proceeds of sale of the royalty interest are being distributed to the widow and heirs. This lease was j oined in by Ella Harley, trustee and guardian of Edna Harley, minor daughter of Margaret E. Harley, deceased.</p> <p>A right of way to the Pittsburg, Harmony, Butler and New Castle Street Railway Company bearing date April 7, 1906, for the location, construction and operation of a street railway across said land in consideration of the payment of $550, being $50.00 to the widow and each heir of the decedent, signed by the widow and surviving children of said decedent and subsequently joined in by Ella Harley, guardian of Edna Harley, was made and delivered to said railway company. The record of said right of way shows the acknowledgment thereof by all the grantors including Mary B. Wahl and her husband, William Wahl, but the acknowledgment of Mary B. Wahl is not separate and apart from her said husband.</p> <p>On October 31, 1904, a judgment was entered at C. P. No. 103, December Term, 1904, in favor of J. A. Painter v. D. T. McKinney, a son of decedent, and Margaret McKinney, his widow, which judgment was entered by confession on warrant of attorney with waiver of inquisition and agreement of condemnation. On November 5, 1906, a writ of vend. ex. with clause of fi. fa. issued on said judgment by virtue of which the interest of the defendants in the land sought to be partitioned was levied upon, which writ with levy indorsed, was returned by order of attorney, December 3, 1906. On January 19, 1907, written notice was served on Margaret McKinney, the widow- and life tenant under the will of her husband, C. A. McKinney, deceased, that application would be made to the court of common pleas of Butler county on February 4, 1907, at ten o’clock a. m. for a writ of vend, ex. in said case. On said February 4, 1907, a motion was made in said court with proof of service of said notice on Margaret McKinney, that a writ of vend. ex. be directed to issue to sell the life estate of Margaret McKinney, aforesaid, and the order awarding the said writ was accordingly made without objection. Pursuant to said writ, an alias writ of vend. ex. issued on said February 4, 1907, on which, after due advertisement, the interest of the defendants in said land was sold at public outcry by the sheriff to W. D. Brandon, one of the plaintiffs herein, to whom deed was duly made and acknowledged March 19, 1907.</p> <p>On February 4, 1891, judgment was entered in said court at C. P. No. 253, March Term, 1891, in favor of Jennie P. Mates for use v. M. H. McKinney, another of decedent’s sons, and on execution issued thereon, the interest of said defendant in said land was levied upon and sold to W. D. Brandon, aforesaid, to whom deed was duly made bearing date December 13, 1893.</p> <p>On October 18, 1901, a judgment was entered in common pleas court of Butler county on judgment note on warrant of attorney with waiver of inquisition and agreement of condemnation. Scire facias issued thereon November 16, 1906, and an alias scire facias December 17, 1906, on which judgment was entered at No. 58, September Term, 1907, in favor of George H. Harley for use v. W. S. McKinney, one of the defendants named in the pending bill and a son of said decedent, on which judgment execution issued and the interest of the said W. S. McKinney in said land was levied upon and sold by the sheriff to Ella Harley, guardian of Edna Harley, and deed delivered bearing date December 3, 1907.</p> <p>The court awarded partition.</p> <p>On exceptions to 'the adjudication Galbreath, P. J., on March 22,1909, filed the following opinion:</p> <p>On the trial of this case, little stress was laid by counsel for plaintiffs on the effect on the question at issue of the various enabling statutes of recent years by which the rights and powers of married women are enlarged. On the argument of the exceptions filed, the effect of those enactments was urged upon the court’s consideration.</p> <p>The Act of June 8, 1893, P. L. 344, sec. 1, provides that “Hereafter a married woman shall have the‘same right and power as an unmarried person to acquire, own, possess, control, use, lease, sell, or otherwise dispose of any property of any kind, real, personal or mixed and either in possession or expectancy, and may exercise the said right and power in the same manner and to the same extent as an unmarried person, but she may not mortgage or convey her real estate, unless her husband join in such mortgage or conveyance.” The same provisions in substance are found in the Act of June 3, 1887, P. L. 332. Under these acts, however, she could not make a valid conveyance although her husband was joined therein, unless it were separately acknowledged by her, as required by the Act of February 24, 1770, 1 Sm. L. 307: Bingler v. Bowman, 194 Pa. 210. However, by the Act of April 4, 1901, P. L. 67, the acknowledgment of a married woman may be, “In the same manner and form as though said married woman were feme sole; said acknowledgment to have the same force and effect as if taken separate and apart from the husband of said married woman.” Any contract made by a married woman touching her real estate in which her husband joins is good without acknowledgment, providing it is not a mortgage or conveyance of the property: McCoy v. Niblick, 221 Pa. 123. In the discussion of this case in the former opinion, to which the pending exceptions were filed, we held that a married woman may elect to reconvert, but to have this effect by implication growing out of acts in pais, those acts must be performed with the same formalities requisite to convey her separate estate, in support of which conclusion we cited 2 American and English Decisions in Equity,. p. 96, and cases there referred to. We are not convinced that this conclusion was error, although in the absence of the authority quoted and the trend of judicial decision, as evidenced in the cases referred to, we would be inclined to hold that a married woman could elect to reconvert by receiving the proceeds of real estate, especially when the proceeds so received were essentially a part of the corpus of the land, as in the case of the receipt of a royalty interest from oil. In the light, however, of the authorities to which we have referred, we would not seem to be justified in so holding. The reason for the rule laid down is possibly to be found in the fact that where an election is predicated upon an act which is essentially a sale of the real estate, which is the case where an oil lease has been given, that act can only be evidenced by performance in the statutory way on the part of a married woman. The question remains, however, whether, in the light of the enabling statutes, before referred to, any of the acts on which plaintiffs seek to predicate a reconversion come within the rule as above held. An election to reconvert may arise by implication out of the acts of the parties and it is necessary that all should elect. It is not necessary, however, that all should elect at the same time, or in the same way, the question being, whether all have at some time and in some way, either expressly or by implication, elected to take the land as such, instead of the proceeds thereof.</p> <p>As to the eight sons of the decedent, C. A. McKinney, there can be no doubt, we think, that their execution of leases of the land for oil and gas purposes, reserving a royalty to themselves, and the receipt of such royalty in kind for a period of years pursuant to division orders signed by them, gave rise to an implied election to take the land as such. These leases were essentially a sale of the oil in place, they were dealing with the land as such. If, in addition to those, there was an election to take the land in its original character by the two daughters, Mrs. Harley and Mrs. Wahl, the reconversion would be complete. In the former opinion, we predicated the conclusion that no reconversion had taken place largely upon the fact that although Mrs. Wahl had joined with the others in the execution of leases of the land for oil purposes, had signed division orders and received her share of the proceeds of the oil, and although she and her husband had joined with all the other heirs in executing a right of way to the railway company and had acknowledged it, yet, there had been no separate acknowledgment by her, thus overlooking the fact that this is no longer necessary since the aforesaid act of 1901 was passed. In view of that enactment, it was not necessary that she should separately acknowledge it.</p> <p>At this point, it becomes necessary to consider the effect of a paper executed by a number of the McKinney heirs before the execution of said right of way and set forth in full in the fourteenth finding of fact. It is a declaration by those signing it that it was not their intention in the execution of leases for oil and gas purposes, which had been or might be made, nor in the execution of any right of way for street car purposes or otherwise to convert the property into , land contrary to the intent of the will of their father, C. A. McKinney, deceased. Whatever effect this instrument might have on the act they were about to perform or which they might perform in the future touching the land, yet, we think it could not have the effect of changing the character of that which they had already done in years gone by so as to nullify an election already made by them or any of them and growing as a legal sequence and by implication of law out of their acts. In short, they could not, we think, by such a declaration undo the legal effect of their former acts. Its effect on the right of way then in contemplation is problematical.. Assuming that it would negative an implication of an election to reconvert on the part of those signing it, yet it would not have that effect in the case of those not joining in it, and although Mrs. Wahl is named in the body of the writing, yet, it is not signed by her and is not, therefore, a declaration of intention by her. Her execution of the right of way to the railway company stands unaffected by any declaration contained in the writing referred to and her execution of said right of way was, we think, an election in law to take the land as such. It was the conveyance of a right in or upon the land and growing out of the land and running with the land, and having in it the possibilities of duration beyond the time when conversion would take place under the will, and thus manifesting an intent on the part of those granting it to deal with the land as such beyond the time of that event. Such right of way could not be fastened on to a mere right to receive the proceeds of the sale of the land. As to Mrs. Wahl, therefore, we conclude that there was an election to reconvert when she, jointly with her husband, executed and acknowledged such right of way, April 7, 1906.</p> <p>In the former discussion of this question, we said that the acts which will have the effect of a reconversion of the property must be joined in by all the parties in interest, “who must be sui juris or if not may possibly be authorized thereto by the proper court, in which case the election to reconvert is exercised by the court in order to preserve or further the interest of the person under disability.” This was predicated on the citation of authorities to that effect found in 2 American and English Decisions in Equity, p. 96, and we then had in mind its application to the case of Mrs. Harley, who, prior to her marriage was Eva McKinney, a daughter of the decedent. But, as we at that time concluded that there had been no election on the part of Mrs. Wahl, it did not seem necessary to pass on the question of an election by or on behalf of Mrs. Harley. It now becomes necessary to do so.</p> <p>On March 21, 1889, Eva McKinney, then a minor, but who would attain her majority on September 17, following, chose as her guardian W. D. Brandon, Esq., who was accordingly appointed. The petition of Eva McKinney for appointment of guardian sets out, inter alia, that she is the daughter of C. A. McKinney, deceased, and is the owner of the undivided one-tenth interest in a tract of land containing eighty acres, “being the farm lately owned by her father and subject to her mother’s interest, as widow.” On the same day, the guardian presented his petition to the court setting forth that his ward was the owner of an undivided one-tenth interest in said eighty acres of land; that the widow and remaining heirs, all of age, had executed a lease of twenty-five acres of said land to I. G. Smith for oil and gas purposes; that the minor had agreed to join in said lease and for that purpose had said guardian appointed; that operations under said lease had already begun and praying that he be permitted to join in said lease, a copy of which was attached to petition. The ward also joined in the petition. The court thereupon made the decree setting forth that it would be for the best interest of the minor that her guardian execute said lease and authorized him so to do, which decree was in due form complied with by said guardian. This decree necessarily involved an adjudication that the ward’s interest was an interest in the land and authorized the guardian to deal with it as such and in a way that was deemed to be for the best interest of the ward. This having been done in the ward’s interest and by authority of the proper court must be taken, we think, as the equivalent, in its legal consequence, of the same act when performed by one sui juris.</p> <p>We conclude, therefore, that all the children of the decedent, in the several ways hereinbefore set forth have elected to take the land as such and that the reconversion became complete with the execution by Mrs. Wahl on April 7,1906, of said right of way to said railway company. The effect of this was to give back to the land its original and actual character and to give to all those theretofore entitled to the proceeds of sale under the will an interest in the land as such, commensurate with their respective shares in the proceeds of sale and a sale of any interest thereafter made as land would vest title thereto in the purchaser.</p> <p>Applying this conclusion to the facts as found, we have two sales made on executions after the date when the reconversion became complete, as follows: First, sale made by the sheriff March 19, 1907, of the interest of D. T. McKinney and Margaret McKinney, son and widow of decedent, on the‘judgment in favor of J. A. Painter entered October 31, 1904, as set forth in the fifth finding of fact. Although this judgment was entered before the time the reconversion became complete, yet, the actual levy made on the land after that event would attach to the land as such, and a sale thereon would pass title thereto, we take it, as in the case of after acquired land, when an execution issued on a previous judgment and levied upon after acquired lands is a lien thereon: Wilson’s Appeal, 90 Pa. 370. In the former opinion, we held that the sale made on said judgment served to pass the title of Margaret McKinney, widow, to the purchaser, W. D. Brandon, but not the interest of T. D. McKinney. We now conclude that the said sale passed to the purchaser the undivided one-tenth interest of the other defendant, D. T. McKinney, as well. Second, the other sale made after the time of reconversion on April 7, 1906, was that of the Interest of W. S. McKinney on the judgment entered October 18, 1901, in favor of George H. Harley for use, on which judgment on sci. fa. was entered at No. 58, September Term, 1907. The interest of the defendant was sold by the sheriff to Ella Harley, guardian, to whom deed was delivered December 3, 1907, as set out in the seventh finding of fact.</p> <p>In conformity with these views the first, fourth, fifth, sixth, seventh, eighth, ninth and tenth exceptions filed on part of the plaintiffs generally are sustained. The exception filed on part of Clara B. and Robert McKinney is also sustained and the court finds the facts as in said exception set forth, but the entry of the judgment therein set forth did not become a lien on any interest of the defendants in the land for the reason that reconversion had not yet taken place until after the entry of said judgment and sale thereon, in consequence of which, no interest in the land passed to the purchaser. All other exceptions are dismissed and the former conclusions of law are modified in accordance herewith and restated as,follows:</p> <p>1. The will of C. A. McKinney, deceased, worked an equitable conversion of his land into personalty as to his children.</p> <p>2. The said land has been reconverted into its original character as land through the election by implication of law to so reconvert by all the children of said deceased, which said election became complete on April 7, 1906.</p> <p>3. W. D. Brandon, one of the plaintiffs, is the owner of an undivided one-third interest in the land sought to be partitioned during the lifetime of Mrs. Margaret McKinney, widow of the deceased. He is also the owner of an undivided one-tenth interest in the said land in fee as purchaser thereof at public sale after reconversion, as aforesaid, said interest being subject to said life estate.</p> <p>4. Ella Harley, as trustee and guardian of Edna Harley, is the owner of an undivided two-tenths interest in said land, to-wit: The one-tenth bequeathed by Eva Harley, formerly Eva McKinney, to her husband, George H. Harley, who conveyed the same to Ella Harley in trust for Edna Harley as set forth in the third finding of fact; also an additional one-tenth purchased by said Ella Harley, guardian, at sheriff’s sale, as hereinbefore set forth, said interests being likewise subject to said life estate.</p> <p>5. That the other heirs of C. A. McKinney, deceased, except D. T. and W. S., whose interests were sold, are the owners of interests in said land subject, as aforesaid, commensurate with their respective interests in the proceeds of sale under the will of said deceased prior to the reconversion of the land.</p> <p>6. That the plaintiffs herein are entitled to have partition of said land.</p> <p>On exceptions to final decree Galbbeath, P. J., filed the following opinion:</p> <p>In the opinion filed in this case, September 8,1908, after hearing on bill and answer the facts were adjudged and the conclusions of law stated, to which exceptions were filed on part of the defendants. After hearing and argument on the exceptions so filed the original findings of fact and conclusions of law were modified, as set forth in the opinion filed March 22, 1909, in which opinion, also the interests of the parties, plaintiff and defendant, were found and stated and a decree in accordance therewith and setting forth said interests was duly made and filed October 2, 1909, in which decree, also, F. J. Forquer, Esq., was appointed master to divide and partition said real estate into purparts according to the shares and interests of the respective parties thereto if the same can be divided without prejudice to the interests of said parties respectively, or without prejudice to or spoiling the whole; and to value the same and to ascertain the amount which shall be paid or charged thereon for owelty, or which shall be paid or secured to the parties to whom no purpart may or can be alloted in the manner now authorized by law under writs of partition. And if the master shall find that such partition can be made either of the whole of said real estate or any part thereof, then upon such valuation and partition, to award and allot the said purparts to and among the parties severally • and respectively entitled thereto, together with the sums to be charged thereon and payable as and for owelty of partition. And if the. master shall find that the said real estate cannot be conveniently divided into as many purparts as there are parties entitled, he shall award and allot the amount or sum to be paid or secured to them respectively and the times when such payments shall be made and the purparts out of which the same shall be payable, and if he shall find that the real estate or tenements cannot be divided without prejudice to or spoiling the whole then he shall value or appraise the same.” The master so appointed having duly qualified and gone upon the premises and having there met the parties, filed his report in court March 15, 1911, finding that the land described in the bill cannot be divided into purparts to accommodate all in interest without injury to or spoiling the whole and that he had appraised and valued the land described in the bill at $90.00 per acre, aggregating the sum of $6,379.20. On the report thus made the court on March 15, 1911, decreed as follows: “Now, March 15, 1911, the foregoing report of the master in equity in this case was presented in open court and on due consideration, his report of inquest and valuation thereof is now approved and confirmed and unless exceptions be filed thereto within ten days, the master is authorized to issue a citation upon all the parties in interest to appear before him, as master, to the end that the matter may be proceeded with according to law.” To the decree thus made the pending exceptions were filed on part of some of the defendants on March 15, 1911.</p> <p>The matters raised in the exceptions filed have been for the most part passed upon and adjudicated in thcopinions heretofore filed. The exceptions do, however, raise, for the first time, the question that plaintiffs’ bill does not sufficiently aver the facts upon which a reconversion of the property is predicated. However this may be, the fact remains that the defendants did not raise this question as to the sufficiency of the averments of the bill in this respect until after the testimony was in, the facts found and decree made, and even if it were true that the averments in the bill were not sufficient, testimony was received of the facts upon which the plaintiffs sought to establish a reconversion, without any objection on part of defendants that the bill did not sufficiently aver the facts relied upon. We think it is now too late to raise the question, and that under the circumstances, if it were necessary to do so, the bill would even now be amendable so as to conform to the proofs in the case.</p> <p>The exceptions raising the question that there can be no parol sale among tenants in common we think are not relevant in the case in hand, as we do not recall any evidence of parol sales sought to be effected among the owners of the land. The rule by which a parol sale cannot be effected by tenants in common, inter se, does not prevent them from making such sales to outside parties, but even this is not a question, as we take it, in the case under consideration. Upon the argument of the case, it was contended on part of the exceptants’ counsel that the proceedings have not been in conformity with the equity rules in such cases. We are not convinced, however, that there has been any irregularity in the record in this respect. On consideration therefore of the whole case, the exceptions are dismissed.</p> <p>Error assigned was the decree of the court.</p> <p>An election to take land directed to be sold, in lieu of the proceeds is practically a purchase: Mellon v. Reed, 123 Pa. 1.</p> <p>The reconversion must be by deed or some equivalent conveyance and Mary B. Wahl and Mrs. G. H. Harley being married, could not elect to take the land instead of the proceeds except by deed joined in by their husbands.</p> <p>Under the will the heirs take title not by the will but by their own act. Their election to take the land is an appropriation of their interests under the will to the acquisition of the land as upon a pinchase, and an equitable estate or title is thereby created in them which chancery will execute by compelling a conveyance. But until the act of election, the heirs have- no estate or title which would be the proper subject of a lien either by judgment or by mortgage, or which could be taken in execution: Mellon v. Reed, 123 Pa. 1; Bailey v. Allegheny Nat. Bank, 104 Pa. 425; Horner’s App., 56 Pa. 405.</p> <p>The property directed to be sold by the will of C. A. McKinney upon the death of his wife was reconverted by the action of his children, among whom the proceeds of the sale were to be distributed: Brown’s App., 27 Pa. 62; Howell v. Mellon, 189 Pa. 169; Emanuel’s Est., 13 Pa. Superior Ct. 43; Rauch’s Est., 21 Pa. Superior Ct. 60; Beatty v. Byers, 18 Pa. 105; Willing v. Peters, 7 Pa. 287; Beal v. Stehley, 21 Pa. 376; Bailey v. Nat. Bank, 104 Pa. 425.</p>

<p>Appeals, Nos. 217, 218, 219 and 220, Oct. T., 1911, by plaintiffs, from judgments of C. P.</p> <p>Butler Co., June T., 1909, No. 6, Sept. T., 1909, No. 9, March Term, 1910, No. 57, March T., 1910, No. 82, in cases of Addie McIntosh v. Wm. H. Ropp; Addie McIntosh v. Daniel Dierkin; Addie McIntosh v. Daniel Dierkin, William H. Ropp and C. E. Blaney; and Addie McIntosh v. C. E. Blaney.</p> <p>Bill in equity for an account, action of trespass for oil taken from land, ejectment for twenty acres of land in Fairview township, and trespass for damages for mining operations. Trials by court without a jury under act of April 22, 1874. Before Galbreath, P. J.</p> <p>The facts appear in the opinion of the Supreme Court and in McIntosh v. Ropp,¡,222 Pa. 606.</p> <p>The court determined the equity and trespass cases against the plaintiff and in the action of ejectment decided. that plaintiff could only recover her one-half interest in the land subject to the right of the defendant to continue to operate under the lease. Plaintiff appealed.</p> <p>In McIntosh v. Ropp, the specifications of error were as follows:</p> <p>1. The court erred in finding that the taking of the lease by B. B. Seibert from Kenneth McIntosh was in good faith on part of Seibert, and in the honest belief that Kenneth McIntosh was the owner of the land.</p> <p>2. The court erred in finding that Dierkin and Whitener did not learn or have actual knowledge that Kenneth McIntosh was not the owner of the land until the year 1907, or have knowledge of any defect in the title and that the expenditures made by them were made on the faith of a good title.</p> <p>3. The court erred in finding as a conclusion of law, that equity has no jurisdiction of plaintiff’s cause of action as set forth in her bill.</p> <p>^ 4. The court erred in finding as a conclusion of law that the plaintiff has an adequate remedy at law for the damage done to her inheritance.</p> <p>5. The court erred in finding as a conclusion of law that the plaintiff’s bill should be dismissed.</p> <p>6. The court erred in directing, unless therefore exceptions are filed within ten days from the filing hereof let a ’ decree be drawn in accordance.</p> <p>■In McIntosh v. Dierkin the specifications of error were as follows:-</p> <p>The court erred in the following findings of facts:</p> <p>In finding that the royalty of one-eighth of the oil produced from the said wells was paid to Kenneth McIntosh with the knowledge of the plaintiff, as the court should have found as a fact that Addie McIntosh, the plaintiff, had no knowledge whatever, as to any claim on part of Dierkin or Whitener, and knew nothing whatever of the payment of royalty to her father, and there is no proof in the case to sustain it.</p> <p>In finding that the defendant did not learn, or have actual knowledge that Kenneth McIntosh was not the owner of the land until 1907, and that Whitener did not have such knowledge during the time that he owned an interest in the property, and that the several lessees, up until shortly before the bringing of the actions, were without knowledge of any defect in the title, and that the expenditure of the money was made in good faith.</p> <p>In not finding as a fact there is no proof in the case that Addie McIntosh had any knowledge of the indenture from her father to Seibert or Seibert’s claim to the land, or of the claim of Dierkin or Whitener to the land for any purpose, or knowledge of the conversation between Dierkin and her brother, Edward, at the time they allege they were looking at the property with the intention of buying it, or that her father was receiving a royalty.</p> <p>The court erred in its conclusions of law as follows:</p> <p>In concluding as a matter of law that the plaintiff’s damages are not to be measured by the price obtained from the oil when produced and sold, but by the lessened value of the inheritance, consequent of the taking of the oil. This being true, we might end the consideration of the case and in the absence of the proof of the lessened value of the inheritance, enter judgment for the defendant under the agreement above referred to.</p> <p>In concluding as a matter of law that there was no willful trespass committed by the defendant, no circumstances of aggravation attended the taking of the oil, but on the contrary the life tenant was receiving one-eighth royalty with the knowledge and acquiescence of the plaintiff who resided with him on the farm.</p> <p>In concluding as a matter of law that the measure of damages in this case, is not the particular value of the oil or other products produced by the defendant from the land and removed therefrom, as a merchantable commodity, that is, the market value of the production after it had been produced and severed from the land, less the proper cost and the expense of the production, but the damage done to the interest of the plaintiff in remainder, that is, to her inheritance, and it is not being contended, and there being no proof to show that the taking of the oil did in itself lessen the value of the inheritance, the plaintiff is not entitled to recover.</p> <p>In concluding as a matter of law that the defendant not being a willful trespasser, and his possessions and operations of the leasehold not .having been attended with any circumstances of aggravation, but on the contrary having been encouraged by one of the remainder-men to enter upon and operate and develop the property under the lease given by the life tenant, who received the royalty with a knowledge of a remainder-man then residing on the farm. The measure of the plaintiff’s damage is the value of the oil in place, which having been paid to the life tenant, who it is agreed was a proper person to receive the same, the plaintiff is not, therefore, entitled to a further recovery.</p> <p>In not concluding as a matter of law that the true measure of damages in this case is the value of the oil taken in the pipe lines, less the expense of putting it there, which expense would include labor and necessary improvements and repairs, to the fixtures and appliances used in doing this, with such additional sum as would compensate the plaintiff for the detention of the oil, or for the delay in not receiving the damages that she was entitled to receive,, this sum not to exceed legal interest from the various sums received by the defendant, for the oil which he wrongfully took and sold.</p> <p>The court erred in entering judgment for the defendant, and not entering judgment for the plaintiff one-half of $20,598.35 after deducting the necessary expense to which the defendant is entitled with interest.</p> <p>The court erred in overruling the defendant’s exceptions to the decision of the court, filed June 21, 1911, and directing judgment to be entered in favor of the defendant.</p> <p>In McIntosh v. Blaney the specifications of error were as follows:</p> <p>The court erred in the following findings of facts:</p> <p>In finding that the royalty of one-eighth of the oil produced from the said wells was paid to Kenneth McIntosh with the knowledge of the plaintiff, as the court should have found as a fact that Addie McIntosh, the plaintiff, had no knowledge whatever as to any claim on part of Dierkin or Whitener, and knew nothing whatever of the payment of royalty to her father, and that there is no proof in the case to sustain it.</p> <p>In finding that the defendant did not learn, or have actual knowledge that Kenneth McIntosh was not the owner of the land, until 1907, and that Whitener did not have such knowledge during the time that he owned an interest in the property, and that the several lessees, up until shortly before the bringing of the actions, were without knowledge of any defect in the title, and that the expenditure of the money was made in good faith.</p> <p>In not finding as a fact there is no proof in the case that Addie McIntosh had any knowledge of the indenture from her father to Seibert or Seibert’s claim to the land, or of the claim of Dierkin or Whitener to the land for any purpose, or knowledge of the conversation between Dierkin and her brother, Edward, at the time they allege they were looking at the property with the intention of buying it, or that her father was receiving a royalty. ‘'</p> <p>The court erred in its conclusions of law as follows:</p> <p>In concluding as a matter of law that the plaintiff’s damages are not to be measured by the price obtained from the oil when produced and sold, but by the lessened value of the inheritance, consequent on the taking of the oil..</p> <p>In concluding as a matter of law that there was no willful trespass committed by the defendant, no circumstances of aggravation attended the taking of the oil, but on the contrary the life tenant was receiving one-eighth royalty with the knowledge and acquiescence of the plaintiff who resided with him on the farm.</p> <p>In concluding as a matter of law that the measure of damages in this case, is not the particular value of the oil or other products produced by the defendant from the land and removed therefrom, as a merchantable commodity, that is, the market value of the production after it had been produced and severed from the land, less the proper cost and the expense of the production, but the damage done to the interest of the plaintiff in remainder, that is, to her inheritance, and it is not being contended, and there being no proof to show that the taking of the oil did in itself lessen the value of the inheritance, the plaintiff is not entitled to recover.</p> <p>In concluding as a matter of law that the defendant not being a willful trespasser, ánd his possessions and opera7 tions of the leasehold not having been attended with any circumstances of aggravation, but on the contrary having been encouraged by one of the remainder-men to enter upon and operate and develop the property under the lease given by the life tenant, who received the royalty with a knowledge of a remainder-man then residing on the farm. The measure of the plaintiff’s damage is the value of the oil in place, which having been paid to the life tenant, who it is agreed was a proper person to receive the same, the plaintiff is not, therefore, entitled to a further recovery.</p> <p>In not concluding as a matter of law that the true measure of damages in this case is the value of the oil taken in the pipe lines, less the expense of putting it there, which expense would include labor and necessary improvements and repairs to the fixtures and appliances used in doing this, with such additional sum as would compensate the plaintiff for the detention of the oil, or for the delay in not receiving the damages that she was entitled to receive, this sum not to exceed legal interest from the various sums received by the defendant, for the oil which he wrongfully took and sold.</p> <p>The court erred in entering judgment for the defendant, and not entering judgment for the plaintiff one-half of $1,888.70, after deducting the necessary expense to which the defendant is entitled with interest.</p> <p>The court erred in overruling the plaintiff’s exceptions to the decision of the court, filed June 21, 1911, and directing judgment to be entered in favor of the defendant.</p> <p>In McIntosh v. Dierkin et al., the specifications of error were as follows:</p> <p>The court erred in the following findings of facts:</p> <p>In finding that the defendants did not learn or have actual knowledge that Kenneth McIntosh was not the owner of the land until 1907, and that Whitener did not have such knowledge during the time that he owned an interest in the property, and that the several lessees up until shortly before the bringing of the actions, were without knowledge of any defect in the title, and that the expenditure of money was made in good faith.</p> <p>In not finding that there is no proof in the case that Addie McIntosh had any knowledge of the indenture from her father to Seibert, or of Seibert’s claim to the land, or of the claim of Dierkin, Whitener or Ropp to the land for any purpose or knowledge, of the conversation between Dierkin and Whitener and her brother, Edward, at the time they allege they were looking at the property with the intention of buying it, or that her father was receiving a royalty.</p> <p>The court erred in its conclusions of law as follows:</p> <p>In concluding as a matter of law that Whitener and Dierkin, before taking the lease and expending their money thereon had no knowledge or notice of title in the plaintiff.</p> <p>In concluding as a matter of law that under the circumstances the estoppel of Edward McIntosh was as ample in scope and relation as the provisions of the contract which is thus ratified, and as wide as the evident understanding of the parties when the lease was given and produced itself beyond the lifetime of the lessor.</p> <p>In concluding as a matter of law that the plaintiff had received compensation on the basis by delivery to her of her proportionate share of the royalty produced.</p> <p>In concluding as a matter of law it is agreed that her proportionate share of the royalty is a proper measure of the value of the oil in place.</p> <p>In concluding as a matter of law that this estoppel worked a conveyance of the one-half of the working interest of the oil and gas right in the land to C. E. Blaney, the defendant, on the death of the life tenant.</p> <p>In concluding as a matter of law that on the death of the life tenant, the plaintiff and defendant became tenants in common of the oil and gas right in the land in dispute. The interest of the defendant therein being measured by his right under the lease of Seibert, as ratified by Edward E. McIntosh and being the undivided one-half of the working interest therein.</p> <p>In concluding as a matter of law that the measure of the mesne profits is the value of the oil produced in place, which in turn is measured by the royalty interest, which the plaintiff has already received. That the plaintiff is entitled to judgment of one-half interest in and to the oil and gas right in the land in dispute, but without prejudice to her cotenant, the defendant’s equal right to possession, for the purpose of necessary operations in producing and removing his share of the oil and gas as the same can be produced in paying quantities, together with the right to remove any machinery, fixtures and buildings on said premises by him or those claiming under him, as provided in the lease to Seibert when operations are ended, and subject to an account to the plaintiff for the value of one-half of the oil in place, to-wit, one-half of the royalty.</p> <p>In not concluding as a matter of law that the true measure of damages in this case is the value of the oil taken in the pipe lines, less the expense of putting it there, which would include labor and necessary improvements and repairs to'the fixtures and appliances used in doing this, with such additional sum as would compensate the plaintiff for the detention of the oil or for the delay in not receiving the damages that she was entitled to receive, which sum not to exceed legal interest on the various sums received by the defendant for the oil which he wrongfully took and sold.</p> <p>That the court erred in not entering judgment in favor of the plaintiff for the amount of oil taken from the said well .from the date of the death of Kenneth McIntosh, less the necessary expense to which the defendant is entitled.</p> <p>The court erred in finding as a conclusion of law that ■the plaintiff is entitled to judgment for one-half interest of, in and to the oil and gas right in the land in dispute but without prejudice to her cotenant the defendant’s equal right of possession for the purposes of necessary operations in producing and removing his share of the oil and gas so long as the same can be produced in paying quantities, together with the right to remove any machinery, fixtures and buildings placed on said premises by him or those claiming under him as provided in the lease to Seibert when operations are ended, and subject to an accounting to the plaintiff for the value of one-half of the oil in place, to-wit, a one-half of the royalty.</p> <p>The court erred in not finding as a conclusion of law that the plaintiff is entitled to judgment for the whole interest in and to the oil and gas right in the land in dispute, and that the defendant’s rights therein, if any he had, expired at the time of the death of Kenneth McIntosh, the life tenant, and in not entering judgment for the value of the whole amount of the oil produced since the death of Kenneth McIntosh.</p> <p>The quantity and value of the oil produced and sold, less expense of production, is the correct rule to measure the damages: Crawford v. Forest Oil Co., 208 Pa. 5.</p> <p>The correct measure of damages is the fair market value of the mineral in place, represented by the royalty to be obtained for the privilege of removal: Fulmer’s App., 128 Pa. 24; Mercur v. It. R. Co., 171 Pa. 12; McGowan v. Bailey, 179 Pa. 470.</p>

<p>Appeal, No. 29, Oct. T., 1911, by defendant, from decree of C. P. Beaver Co., June T., 1908, No. 3, in case of The Douglass-Whisler Brick Company v. William C. Simpson.</p> <p>Bill in equity for an accounting. Before Holt, P. J.</p> <p>The opinion of the Supreme Court states the case. The court decreed, inter alia:</p> <p>That the defendant, William C. Simpson, be and is hereby required to forthwith pay to the plaintiff the sum of $5,400 with interest thereon from April 21, 1902, at the rate of six per centum per annum.</p> <p>Errors assigned among others were to various findings of fact and the decree of the court.</p>

Appeal, No. 169, Oct. T., 1911, by plaintiff; from order of C. P. Beaver Co., June T., 1908, No. 3, in case of The Douglass-Whisler Brick Company v. Wm. C. Simpson. Petition for attachment of defendant for contempt. Before Holt, P. J. The opinion of the Supreme Court states the case. The court issued the attachment which it subsequently quashed. Plaintiff appealed. Error assigned was in overruling exception to order quashing the attachment.

Appeal, No. 191, Oct. T., 1911, by plaintiffs, from decree of C. P. Beaver Co., Sept. T., 1911, No. 4, in case of C. A. Lockwood, G. S. Niver and C. L. McHenry v. Ambridge Borough et al. Bill in equity to restrain a borough from issuing bonds to construct a waterworks.

Appeal, No. 211, Oct. T., 1911, by plaintiff, from judgment of C. P. Beaver Co., June T., 1909, No. 333, on verdict for defendant in case of Tony Amiano v. Jones & Laughlin Steel. Company. Trespass to recover damages for personal injuries. Before Holt, P. J. Tony Amiano, the plaintiff, was employed by the defendant company at its works in Pittsburg. He was employed as a laborer and to do odd jobs about the mill.

<p>Appeal, No. 18, Oct. T., 1911, by defendants, from judgment of C. P. Washington Co., Nov. T., 1910, No. 65, on demurrer in case of Commonwealth of Pennsylvania, to use of Washington County, v. W. L. Lenhart, George W. Lenhart. and William McKennan Smith.</p> <p>firmed.</p> <p>Assumpsit on a bail bond. Before Taylor, J.</p> <p>The facts,appear by the opinion of the Supreme Court.</p> <p>Error assigned was in entering judgment for the plaintiff on demurrer.</p> <p>The appeal was prosecuted with effect, although not successfully: Com. v. Wistar, 142 Pa. 373; Hobart v. Hilliard, 28 Mass. 143; Johnson v. Hessel, 134 Pa. 315.</p> <p>The sureties on the bond on appeal cannot be held liable to pay or satisfy the judgment unless that is made a condition in the bond: Mason v. Smith, 79 Tenn. 67; Banks v. Brown, 12 Tenn. 198; Jones v. Parsons, 10 Tenn. 320; Bank of Metropolis v. Swann, 4 Cranch, C. C. 139.</p> <p>The appeal must be prosecuted with success: Karthaus v. Owings, 6 Harris & Johnson (Md.), 134;-Gibbs v. Bartlett, 2 W. & S. 29; Balsley v. Hoffman, 13 Pa. 603; Pittsburg Nat. Bank of Commerce v. Hall, 107 Pa. 583; Watterson v. Fuellhart, 169 Pa. 612.</p>

<p>Negligence — Municipality—Borough street — Area way — Contributory negligence.</p> <p>In an action for damages against a municipality for an injury alleged to have been caused by a defect in a highway a verdict is properly directed for the defendant where it appears that the plaintiff, while behaving in a disorderly manner on a borough street, fell into an area way that was on private property,-twenty-one inches from the-side of the street and separated from it by a stone wall eighteen inches in width and four inches high; that he lived in the vicinity and knew the area way; that he had lingered for some time around the hotel that it adjoined and had been scuffling in the barroom; that after leaving the hotel he engaged- in a -scuffle with a young man on the street corner, and while so engaged he moved with him from the front to the side of-the hotel, where, while stepping backwards or sideways, his foot struck the coping of the wall, causing his fall.</p>

<p>Appeal, No. 97, Oct. T., 1911, by defendant, from judgment of C. P. Washington Co., Aug. T., 1910, No. 222, on verdict for plaintiff in case of James D. Little and Lloyd L. Little, for use of J. Y. H. Cook & Sons, Samuel C. Cook and Rowley M. Cook, partners under the name and style of J. V. H. Cook & Sons, v. John M. Greek.</p> <p>Trespass for treble damages under the Act of May 8, 1876, P. L. 142, for mining on plaintiff’s land. Before McIlvaine, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were various rulings on evidence, etc., discussed in the opinion of the Supreme Court.</p> <p>If there were acts done in pais whereby the construction and effect of a written lease were</p> <p>to be effected, it was the duty of the plaintiffs under the rules to give notice of them in the bill of particulars, and the defendant had a right in preparing for trial, to rely upon the rules as requiring this. For the court to permit the testimony to be given in total disregard of the rule, was error: Rentzheimer v. Bush, 2 Pa. 88; Alexander v. Alexander, 5 Pa. 277; Green v. Hallowell, 9 Pa. 53.</p> <p>The “value” of the coal, etc., which is to be trebled, is its value in place, and if in fact the mineral has a market value by the acre in place, that value is the proper standard and measure: Oak Ridge Coal Co. v. Rogers, 108 Pa.. 147; Forsyth v. Wells, 41 Pa. 291.</p> <p>cited on the question of damages: Ege v. Kille, 84 Pa. 333; Oak Ridge Coal Co. v. Rogers, 108 Pa. 147.</p>

<p>Appeal, No. 110, Oct. T., 1911, by defendants, from judgment of C. P. Washington Co., Feb. T., 1910, No. 216, for plaintiff on case stated in case of Sarah E. Hyde, Lydia A. Bebout,- Nancy McGregor, James R. McGregor, Nora McGregor, William McGregor and Elizabeth McGregor v. H. H. Rainey, James H. Rainey and Retta A. Rainey.</p> <p>Case stated to determine rights and title- to the coal, oil and gas in and under a tract of land in Nottingham township. Before Taylor, J.</p> <p>By the case stated it appeared that Jane Rainey died on August 1,1890, at the age of eighty-one years, leaving a last will and testament made on January 4,1890.</p> <p>The fifth item of the will was as follows: “I will and bequeath to my son Hermon H. Rainey all that tract of land situated in Nottingham Township, Washington County, Penna. on which I now reside subject to the above named bequests which he is to pay to my daughters Lydia Bebout and. Maria J. McGregor, and One Hundred Dollars to John Dixon will be hereinafter mentioned. The above named farm contains Two Hundred and Twenty acres more or less, together with all the farming implements which I possess, including One Two Horse Wagon, One Four horse wagon and one Spring Wagon, and at the death of my son Harmon H. Rainey the above bequest is to descend to his children.”</p> <p>The sixth item of the will was as follows: “It is my will that if — during -the period- of my-natural life if the farm on which I reside shall be leased for the purpose of mining for coal, gas or oil'that the proceeds of the lease shall be divided between my four children, viz: Sarah-E. Hyde, Lydia A. Bebout, Maria J. McGregor and Harmon H. Rainey, share and share alike.”</p> <p>The tract of land on Which the said Jane Rainey lived at the time of the execution of the will, which is referred to in the ninth item of her will, is the same tract of land which was devised to Harmon H. Rainey for life, with remainder to his children, by the fifth item of her will.</p> <p>This tract of land was never leased during the lifetime of the said Jane Rainey for the purpose of mining for coal, gas or oil, nor has it ever been so leased since her death. No gas nor oil wells were ever drilled upon said property, neither have any coal mines ever been opened upon the same. ■</p> <p>The plaintiffs in the case stated were Sarah E. Hyde and Lydia A. Bebout, daughters of Jane Rainey; Nancy Mc-Gregor, James R. McGregor, Nora McGregor, William McGregor and Elizabeth McGregor, sons and daughters of Maria J. McGregor, a daughter of said Jane Rainey, who died intestate before the beginning of this action and subsequent to the death of her mother, the said Jane Rainey. The defendants are H. H. Rainey, son of Jane Rainey and the Harmon H. Rainey named in her will; and James H. Rainey and Retta A. Rainey, children of the said H. H. Rainey.</p> <p>Error assigned was in entering judgment for plaintiffs.</p> <p>cited on the construction of the term “lease,” Denniston v. Haddock, 200 Pa. 426; Blakley v. Marshall, 174 Pa. 425; Gallagher v. Hicks, 216 Pa. 243; Coolbaugh v. Coal Co., 213 Pa. 28.</p> <p>The intention of the testatrix to give the proceeds of the coal under her farm to her four children equally, is beyond any doubt: Christy v. Christy, 162 Pa. 485; Mulliken v. Earnshaw, 209 Pa. 226; Holbrook’s Est., 213 Pa. 93; Dubois v. Ray, 35 N. Y. 162; Chapman v. Cheney, 191 111. 574 (61 N. E. Repr. 363).</p> <p>The condition in the ninth item of the will is one merely of form and not of substance, it does not postpone the vesting of the gift in the four children at the death of the testatrix: Janney v. Sprigg, 7 Gill (Md.), 197; Meehan v. Brennan, 45 N. Y. Supp. 57; Cahill v. Russell, 140 N. Y. 402 (35 N. E. Repr. 664); Pits v. Pelham, 1 Levinz, 304; Bentham v. Wiltshire, 4 Madd. Ch. 44; Brown v. Higgs, 8 Yes. Jr. 561; Mifflin’s App., 121 Pa. 205; Kief el v. Keppler, 173 Pa. .181; Keene’s Est., 221 Pa. 201; Hanna’s App., 31 Pa. 53; McFait’s App., 8 Pa. 290; Christy v. Christy, 162 Pa. 485.</p> <p>The bequest to the four children of the proceeds of the coal, if or when leased, constitutes an unlimited gift of such proceeds, and the four children take a fee in the coal:. Roberts’s App., 59 Pa. 70; Beilstein v. Beilstein, 194 Pa, 152; Carlyle v. Cannon, 3 Rawle, 489; Drusadow.et al. v. Wilde et al., 63 Pa. 170.</p>

<p>Wills — Construction—Estates in remainder — Gift to a class.</p> <p>Testator devised to his son certain real estate upon condition of his paying to the testator’s widow a specified annuity; and then provided “at his death to be divided among his living children as follows: — Five hundred dollars to M. (a daughter of the son), the remainder to be equally divided among the other children.” At the date of the will the son had five children; another child was born before the death of the testator and two were born afterward. Held, that the words “at his death” referred to the death of the son and fixed the time for division; that the words “living children” and “other children” were descriptive of the persons who were then to take; and that until the time for distribution was reached, the persons entitled to shares could not be ascertained.</p>

<p>Taxation — Assessment—Appeal—Evidence—Coal lands.</p> <p>1. On an appeal from a valuation of lands fixed by the board of revision for purposes of taxation, a prima facie case is made out by the county introducing in evidence the assessment books of- record in the office of the county commissioners, as approved or corrected by the' board of revision, together with other record data relating to the valuations appealed from. The burden is then on the complaining owner to overcome the prima facie case and to show by the weight of the evidence that he was aggrieved by the valuation so fixed.</p> <p>2. Farm lands underlaid with veins of coal, unsevered and unproductive, are to be assessed for purposes of taxation at their market value, and in ascertaining the market value, the value of the veins of coal, although unsevered and unproductive, is to be considered by the assessor or other taxing authorities in arriving at a proper valuation for assessment purposes.</p> <p>3. On an appeal from the court of common pleas sustaining a tax assessment made by the board of revision-, findings of fact relating to valuations will not be disturbed by the appellate court except for manifest error.</p> <p>4. On an appeal from a tax assessment of farm lands underlaid by coal, a witness may state any facts within his knowledge relating to the character of the underlying coal, but he cannot testify to the general reputation of such coal; nor is it reversible error to refuse an offer to prove the valuations of the same lands made at a former triennial' assessment.</p> <p>5. In the assessment of farm lands underlaid with- coal, unsevered, there should be no separate assessment of coal as such, but a valuation should be placed upon the whole tract of land. In such cases the coal can only be considered as an element tending to appreciate the value of the land.</p>

<p>Appeal, No. 116, Oct. T., 1911, by defendant, from order of C. P. Washington Co., Aug. Term, 1910, No. 160, dismissing appeal from tax settlement in case of Washington County v. S. C. Cunningham.</p>

<p>Appeal, No. 115, Oct. T., 1911,</p> <p>by defendant, from order of C. P. Washington Co., Aug. Term, 1910, No. 154, dismissing appeal from tax settlement in case of Washington County v. August Wieneke.</p>

Appeal, No. 167, Oct. T., 1911, by defendant, from judgment of C. P. Washington Co., Nov. T., 1910, No. 8, on verdict for plaintiff in case of The Hunter Construction Company v. Robert Lyons, Receiver of the Cosmopolitan National Bank of Pittsburg. Feigned issue under sheriff’s interpleader. Before McIlvaine, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 117, Oct. T., 1911, by defendant, from order of C. P. Washington Co., Aug. Term, 1910, No. 177, dismissing appeal from tax settlement in case of Washington County v. J. T. Scott.</p>

Appeal, No. 191, Jan. T., 1911, by defendant, from judgment of Superior Court, March T., 1911, No. 15, affirming order of C. P. Lackawanna Co., Sept. T., 1909, No. 178, dismissing exceptions to report of referee in case of Automatic Merchandising Company v. Delaware & Hudson Company. Appeal from judgment of the Superior Court. The facts appear by the opinion of the Supreme Court and by the report of the case in 46 Pa. Superior Ct. 648.

<p>Appeal, No. 20, Oct. T., 1910, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Fourth Term, 1909, No. 8, dismissing bill in equity in case of James W. Drape v. A. B. Coleman.</p> <p>Bill in equity for discovery and an accounting. Before Cohen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in sustaining demurrer to the bill and in certifying the case to the law side of the court.</p> <p>The court had jurisdiction: Wetherill v. Gallagher, 211 Pa. 306; Bierbower’s App., 107 Pa. 14; Earley’s App., 121 Pa. 496; Brush Electric Company’s App., 114 Pa. 574; Warner v. McMullen, 131 Pa. 370.</p> <p>A suit at law gives the plaintiff a complete and adequate remedy-at law: Dech’s App., 57 Pa. 467; Tripp v. Bishop, 56 Pa. 424; Smaltz’s App., 99 Pa. 310; Weaver v. Shenk, 154 Pa. 206.</p> <p>Plaintiff is not entitled to an accounting: Sprigg v. Title Ins. & Trust Co., 206 Pa. 548.</p> <p>Plaintiff is not entitled to discovery: Sullivan v. Jones & Laughlin Steel Co., 222 Pa. 72; Probasco v. Probasco, 30 N. J. Eq. 61; Van Sciver v. Churchill, 215 Pa. 53; Elk Brewing Co. v. Neubert, 213 Pa. 171; Holland v. Hallahan, 211 Pa. 223; Hyde v. Baker, 212 Pa. 224.</p>

<p>Appeal, No. 3, Oct. T., 1911, by defendant, W. N. Murray, from decree of C. P. No. 2, Allegheny Co., April T., 1908, No. 1,068, on bill in equity in case of George M. Bole, Receiver et al., v. The Belden Automobile Transmission Company et al. and W. N. Murray.</p> <p>Bill in equity to recover a stock subscription.</p> <p>From the record it appeared that W. N. Murray subscribed to seventy-five shares of the stock of the Belden Automobile Transmission Company prior to its incorporation, and ten shares of the stock subsequent to its incorporation. Murray claimed that the seventy-five shares had been paid in full by property transferred to the company.</p> <p>Haymaker, J., filed an opinion which was in part as follows:</p> <p>It appears that for some time prior to the incorporation of this company, Mr. Murray was president of the Standard Automobile Company of Pittsburg. Something like one year before this incorporation, E. H. Belden, the original promoter of this scheme, with Mr. Murray secured certain patents for an invention in the equipment of automobiles with certain appliances relating to the transmission of power, etc., which was called the “Belden Transmission,” and this company was incorporated as the “Belden Automobile Transmission Company,” for the purpose of manufacturing these appliances and all the materials, machinery, or equipment connected therewith, with the ultimate view of having the owners of automobiles install this transmission in their machines. Murray and Belden had been experimenting with this new system of power for more than a year before this incorporation, during which time Mr. Murray had expended over $4,000, in securing various patents, and in advancing cash to Belden in connection with experimental work and on his personal account. This new system of power transmission as it is called, was installed originally in an automobile furnished by Mr. Murray, and the experiments were made with his car in 1904. When it was thought that this transmission was perfected, Belden organized the company, Mr. Murray turned over the car to the company, and was given these seventy-five shares for the moneys he had expended before the incorporation, as we have stated, and the automobile so turned over to the company. There was no evidence that the board of directors authorized this arrangement, or that it was agreed to or known by all the stockholders. There is little doubt that if this cash and property constitutes a legal payment, Mr. Murray has paid the amount of his liability on his subscription for the seventy-five shares. The ten shares were subscribed for after the incorporation, and he claims that these were in part paid by a contra-account of the Standard Automobile Company against the corporation, which the automobile company, after crediting the corporation, charged the same against him personally, amounting to between $600 and $700. He claims that he paid some cash, but was unable to give any very definite amount, but it approximates $250, and he should be allowed a credit for that amount. The books of the corporation credit him with payment of the ten shares.</p> <p>If this were an attempt on the part of the corporation to compel Mr. Murray to pay these subscriptions a more serious question would be presented, but we have here a creditors’ bill, and as against an unconditional and unqualified subscription, which gives no notice to either creditors or stockholders of this secret arrangement, he sets up the defense that he was not bo pay for these seventy-five shares because he had expended money and property an equivalent of this indebtedness, in experimenting before incorporation on a deviee or system of power, which would appear from the evidence in this case to have been of little utility. There was not even corporate action, by resolution or otherwise, authorizing the issuance of these seventy-five shares on the terms set up by Mr. Murray.</p> <p>Assuming that Mr. Murray expended large sums of money, and used certain property of his own, experimenting on patents preparatory to the organization of this corporation, certainly this expenditure, made about one year before the organization, was not the kind of money and property for which the corporation could issue full-paid stock, not liable to any future call. There was no evidence that the board of directors ever passed judgment on the value of this expenditure on the part of Mr. Murray, or endeavored to ascertain in any official way whether or not such an expenditure was actually made, or what relation it bore in value to the stock issued therefor.</p> <p>In Wetherbee v. Baker, 35 N. J. Eq. 501, it was said: “The capital stock subscribed is a substitute for the personal liability of partners in ordinary copartnerships, and creditors are entitled to a bona fide exercise of the compulsory powers of the corporation to compel subscribers to pay in their subscriptions. Any arrangement between the agents of the corporation and the subscribers for its stock that their subscriptions shall be merely colorable, or less onerous than they purport to be on the face of the subscription is void and a fraud upon creditors.</p> <p>“The subscription to the capital stock constitutes a trust fund for the payment of its debts. The officers and managers of the corporation- are trustees of the fund. They cannot squander it or dispose of it to the prejudice of creditors without an equivalent consideration, and the trust cannot be defeated by any simulated payment of the stock subscription, or by any device short of actual payment in good faith.”</p> <p>We are of the opinion that the defendant is liable, and should be required to pay whatever is unpaid on the contract of subscription, or such sums on account thereof as may be necessary to pay the debts of the several plaintiffs.</p> <p>Subsequent to the filing of the above- opinion Murray ' filed a cross bill.</p> <p>Haymakek, J., struck off the bill, filing an opinion which was in part as follows:</p> <p>After we had overruled the exceptions of Murray to our findings and conclusions, and the plaintiffs had submitted a form of decree Murray filed his cross bill praying that he be adjudged and decreed a creditor of the corporation in the sum of $8,424.25, with interest, being the amount of cash and property alleged to have been contributed and paid, so that he might be allowed to participate in the distribution of the funds realized by the plaintiffs; that whatever distribution of this fund is made on account of his claim should be credited upon the balance of his subscription to the capital stock, and further, that all proceedings against him be stayed pending the disposition of his cross bill.</p> <p>As we have said the original bill was filed March 28, 1908, and for more than two years Murray resisted the plaintiff’s bill on the sole ground that his stock was fully paid, and it was only after proceedings were concluded, and we found against him that he filed his cross bill in which he claims to be a creditor entitled to participate in the distribution of a fund realized by the efforts of plaintiffs. There is nothing in the cross bill to indicate that he has any thought of abandoning his original position, or submitting to our decree, and he now assumes the attitude of a party claiming that the same money and property that paid for his stock can be used as the basis of a claim as creditor against the corporation. This is in conflict with his answer, which, as was said in Graham v. Thankersley, 15 Ala. 634, must be considered true as against himself and destroys the equity he asserts in his cross bill. We see no equity in a cross bill that undertakes to maintain these two inconsistent positions, and for that alone we believe we would be justified in striking it off; but the plaintiffs also claim that it should be stricken off because it was improvidently filed, and without leave of court. The plaintiff in the cross bill neither obtained leave of court, nor offered any excuse for the delay in filing it. In Braman v. Wilkinson, 3 Barb. 151, the court said: “The proper time for filing a cross bill is before a replication is filed to the answer of the defendant to the original bill. If a cross bill is filed after issue is joined in the original cause, proceedings will only be stayed upon the cross bill.”</p> <p>In Irving v. DeKay, 10 Paige’s Ch. Reps. 319, the chancellor said: “If the cross bill in this case showed a case of equitable set-off, which it was impossible for the defendants to avail themselves of by a proper answer in the original suit, they were not entitled to an order to stay the proceedings without showing some excuse for their neglect to file their cross bill before this suit was at issue.</p> <p>“The proper time to file a cross bill .... is at the time of putting in the answer to the original bill, and before the issue is joined, by the filing of the replication.”</p> <p>To the same effect are the cases of Roberts v. Peavey, 29 N. H. 392; Gouverneur v. Elmendorf, 4 Johnson’s Ch. Reps. 357, and many others that might be cited. We are of the opinion that the plaintiff in this cross bill has not alleged such statement of facts as entitles him to the relief for which he prays, and that the cross bill was improperly filed and should be, and now is, stricken off and dismissed.</p> <p>Errors assigned were the various findings of fact, conclusions of law and in dismissing the cross bill.</p> <p>The court found the stock was in fact issued for this property and we, therefore, submit in the words of the act, “The judgment of the directors as to the value of the property purchased shall be conclusive: ” Donald v. American Smelting & Refining Co.) 62 N. J. Eq. 729 (48 Atl. Repr. 771,1116); Donald v. American Smelting & Refining Co., 61 N. J. Eq. 458 (48 Atl. Repr. 786); Bickley v. Schlag, 46 N. J. Eq. 533 (20 Atl. Repr. 250); Edgerton v. Electric Imp. & Const. Co., 50 N. J. Eq. 354 (24 Atl. Repr. 540); Flaherty v. Atlantic Lumber Co., 58 N. J. Eq. 467 (44 Atl. Repr. 186); Clevenger v. Moore, 71 N, J. Law, 148 (58 Atl. Repr. 88); Pitts-burg & Connellsville R. R. Co. v. Stewart, 41 Pa. 54; Carr v. LeFevre, 27 Pa. 413.</p> <p>The cross bill was properly filed: Bickley v. Schlag, 46 N. J. Eq. 533 (20 Atl. Repr. 250); McCune v. Lytle, 197 Pa. 404; Paxton v. Stackhouse, 4 Kulp, 403; Springfield Milling Co. v. Mfg. Co., 81 Fed. Repr. 261; Freeland v. Oil Co., 189 Pa. 54; Datz v. Phillips, 137 Pa. 203; Graham v. Thankersley, 15 Ala. 634.</p>

Appeal, No. 4, Oct. T., 1911, by Albert Wittmer, executor, from decree of O. C. Allegheny Co., March T., 1910, No. 193, removing an executor in Estate of George Wittmer, Sr., deceased. Petitions for an accounting and for the appointment of an administrator pendente lite. Before Over, J. The opinion of the Supreme Court states the case. Error assigned was the decree of the court removing the executor. cited: Parsons’ Est., 82 Pa. 465; Mulley’s Est., 17 York Leg.

<p>Appeal, No. 6, Oct. T., 1911, by Guarantee Title & Trust Company, Administrator c. t. a., from decree of O. C. Allegheny Go., March T., 1910, No. 176, dismissing exceptions to adjudication in Estate of Edward Rahm, Sr., deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The facts appear by the opinion of the Supreme Court, and by Rahm’s Est., 226 Pa. 594.</p> <p>Errors assigned were in the following form:</p> <p>1. The court erred in not holding that appellant has the absolute and exclusive title to said fund as a part of the unadministered assets of Rahm’s estate.</p> <p>2. The court erred in not distributing the fund in question to appellant as Rahm’s administrator c. t. a.</p> <p>3. The court erred in not holding that the person or persons ultimately entitled to the fund in question must acquire their title from appellant as Rahm’s personal representative.</p> <p>4. The court erred in holding that it had jurisdiction to distribute the assets of Rahm’s estate before said assets had come into the hands of Rahm’s personal representative, and before said personal representative had filed an account.</p> <p>5. The court erred in holding that it had jurisdiction to decide during the life of Louisa Rahm who should be entitled to the principal of the fund of $3,000 at her death.</p> <p>6. The court erred in distributing said fund belonging to Rahm’s estate in accordance with its decree in another proceeding, to wit, the audit of an account of Hopkins’ ancillary administrator.</p> <p>7. The court erred in distributing the fund in question to the domiciliary administrator of James H. Hopkins, deceased, when no evidence was produced at the audit to show that said distributee had any title to said fund.</p> <p>8. The court erred in holding that the question of appellant’s title to said fund at the death of Louisa Rahm had been adjudicated by the orphans’ court or the Supreme Court.</p> <p>9. The court erred in ordering the distribution of a fund over which it had no jurisdiction, thereby depriving appellant of its property without due process of law, contrary to sec. 9, art. I of the constitution of Pennsylvania and the fourteenth amendment to the constitution of the United States.</p> <p>Appellant has title to the fund in question as unadministered assets of Rahm’s estate and the persons ultimately entitled thereto must obtain their title through appellant as Rahm’s personal representative: Lee v. Wright, 1 Rawle, 149; Ebbs v. Com., 11 Pa. 374; Hagthorp v. Hook, 1 Gill & Johns. (Md.) 270; Lawrence v. Wright, 40 Mass. 128.</p> <p>The orphans’ court has no jurisdiction to distribute the assets of a decedent’s estate until the account of the decedent’s personal representative has been filed and settled: Miller’s Est., 159 Pa. 562; Wagner’s Est., 227 Pa. 460.</p> <p>The orphans’ court had no jurisdiction to decide during Louisa Rahm’s life who should be entitled to the principal of the fund in question at her death: Willard’s App., 65 Pa. 265.</p> <p>All the matters involved in this appeal are res ad judicata: Rahm’s Est., 226 Pa. 594; Corry v. Corry Chair Co., 18 Pa. Superior Ct. 271; Jenkins v. Scranton, 205 Pa. 598.</p> <p>It was within the discretion of the orphans’ court to decree the trust fund on the death of Louisa Rahm to the domiciliary administrator of Hopkins: Dent’s App., 22 Pa. 514.</p>

<p>Corporations — Stock subscription — Suit by receiver.</p> <p>1. There is a well-recognized distinction between original subscriptions for stock in a corporation to be formed, and subscriptions for shares in an existing corporation. In the one case the engagement between the subscribers is created directly by the act of subscription, which, when once the corporation has been created by letters patent issued on the strength of the subscription, becomes absolute, not subject to recall and dischargeable only by actual payment. By the act of incorporation, without more, the original subscribers become members of the corporation, entitled to all the rights and privileges of membership, including the right to vote, the right to share in the profits and the right to compel specific performance of the contract of membership. In the other case the contract is not between the subscribers, except as it is shown that the subscriptions were mutual considerations for each other, but between each individual subscriber and the corporation as it exists, and is simply a contract of purchase and sale.</p> <p>2. Where a person subscribes for a certain number of the shares of the capital stock of an existing corporation, and shortly thereafter notifies the corporation that he will not pay the subscription, the company may then tender him the stock and upon his refusal to accept and pay for it, sue him and recover the difference between the amount which he agreed to pay for the shares, and the value of an equal number of shares in the market. If it makes no such tender and demand, he cannot be included in a bill in equity against the stockholders of the company to compel the payment of their subscriptions, and this is the .case because the subscriber never became a stockholder. Any claim for damages for breach of contract cannot be adjudicated against the subscriber in such a suit in equity.</p>