Volume 234 — Pennsylvania State Reports

<p>Negligence — Independent contractor — County bridge — Judgment n. o. v. —Public works.</p> <p>1. In an action against a bridge company to recover damages for personal injuries sustained by the plaintiff while crossing a county bridge which the defendant had contracted to repair, a judgment for defendant n. o. v. will be affirmed where the written proof at the trial shows that the work at the point at which the plaintiff was injured was under a contract which the defendant had sublet, and the uncontradicted parol proof showed that the independent contractor was doing the work at the time of the accident, and that the defendant had no part in it. In such a case it is immaterial that there was an agreement between the county and the defendant that the contract was not to be sublet, and it is also immaterial that the contract was one for public works.</p> <p>2. In a negligence case where the oral testimony on the part of the defendant as to an independent contract under which the work was done is not in itself improbable, is not at variance with any proof or admitted facts or with ordinary experience, and comes from witnesses whose candor there is no ground for doubting, a jury ought not to be permitted to indulge in a capricious disbelief of their testimony and binding instructions for the defendant are proper: Lonzer v. Lehigh Valley R. R. Co., 196 Pa. 610, followed.</p> <p>Practice, C. P. — Judgment for defendant n. o. v. — Rule for new trial.</p> <p>3. Where there is a rule for a new trial pending at the timé the trial court grants a motion for judgment non obstante veredicto, the rule for a new trial must be discharged, inasmuch as no ease is ripe for judgment with a rule for a new trial undisposed of. If such action is not taken by the trial court, the appellate court will remit the record with directions to dispose of the rule.</p>

<p>Arbitration — Building contract — Award of architect — Incomplete award</p> <p>1. An award of an arbitrator which is not final, or is not complete as to all the matters included in the submission, is void altogether, and is not admissible even as an account stated.</p> <p>2. Where a building contract provides that matters in dispute shall be referred to the architect, whose decision shall be final and conclusive, and the architect in making his award certifies that he had not included certain items of materials furnished, as to which mechanics’ liens had been filed, the award is incomplete and cannot be sued upon.</p> <p>3. In such a case the owner might have waited until the mechanics’ liens had been adjudicated, or he might have waived his rights as to the items omitted, or with the acquiescence of the contractor he might have waived the submission of such items, but as he did none of these things, he is not entitled to sue upon the incomplete award.</p> <p>4. Where the parties to a building contract select the architect as the person to whose final decision they are willing to submit the preliminary question of the contractor’s default, and the ultimate one of the determination of the account between the parties, the award of the architect on these subjects is final so long as he acts independently and without fraudulent collusion with the owner. Partiality and some improper conduct on the part of the arbitrator in making the award will not impeach it, unless the party benefited thereby be implicated in the misconduct.</p> <p>5. Where the award of an architect in a building contract is attacked for fraud, mere general allegations of fraud without stating the facts which sustain them are not sufficient. The facts upon which the charge is made must be shown, inasmuch as fraud is largely a conclusion of law from facts stated.</p> <p>6. The rule that the award of an architect as to matters expressly made subject to his decision will not be disturbed does not at all apply beyond the express covenants of the contracting parties. Thus where a contract provides that, upon the default of the contractor, the owner may dispossess the contractor and complete the contract at the latter’s expense, and that the decision of the architect as to matters in dispute shall be final, the architect has no power to allow the owner at the expense of the contractor the rental value of the building from the date allowed by the contract for completion of the building to the date of actual completion. In such a case, however, an item allowed by the architect to the owner for the supervision of the completion of the building is within the architect’s cognizance.</p>

<p>Road, law — Report of viewers — Exceptions—Time for filing — Acts of May 16,1891, P. L. 76, and April 2,1903, P. L. m.</p> <p>1. When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice. This rule is applicable to the provision of the Act of May 16,1891, P. L. 75, as amended by the Act of April 2, 1903, P. L. 124, providing that exceptions to a report of viewers must be filed within thirty days.</p> <p>2. Where road viewers are appointed “to ascertain the cost, damages and expenses and assess the benefits by reason of said improvements,” they sufficiently comply with their order of appointment if they report no damages to be awarded, and no benefits to be assessed. They are not required to award damages or assess benefits if they find as a matter of fact that the properties were neither damaged nor benefited by the improvement.</p> <p>3. Where three road viewers qualify by taking the necessary affidavit, and all join in the notice of the first meeting, and the language of their report indicates that all three inspected the line of the. improvement, heard the testimony and joined in the findings, their report cannot be attacked on the ground that only two of the viewers acted, because only two of them signed the report.</p> <p>Appeals — Road law — Exceptions—Final order.</p> <p>4. In a road proceeding an order which merely states “the exceptions are sustained,” is not a final order from which an appeal will properly lie; but if an appeal is taken from such an order and the appellate court finds that the exceptions should have been dismissed, it will reverse the order and dismiss the exceptions without resorting to the circuitous proceeding of sending the record back for a proper order and a second appeal.</p>

<p>Appeal, No. 82, Oct. T., 1911, by plaintiffs, from decree of C. P. No. 1, Allegheny Co., June T., 1909, No. 694, dismissing bill in equity in case of Walburga J. Burkhard et al. v. Pennsylvania Water Company.</p> <p>Bill in equity for an injunction. Before Ford, J.</p> <p>The court filed the following opinion:</p> <p>FINDINGS OF FACT.</p> <p>1. The defendant, the Pennsylvania Water Company, is a corporation organized and doing business under the Act of May 29, 1901, P. L. 349, and consists of the merger and consolidation of several separate and distinct water companies, all incorporated under the laws of the commonwealth of Pennsylvania, and known as the Pennsylvania Water Company, with franchises covering Sterrett township; Fast Pittsburg Water Company, with franchises covering North Versailles township; Manufacturers’ Water Company, with franchises covering Patton township; People’s Water Supply Company, with franchises covering Wilkins township; Citizens’ Water Company, with franchises covering Braddock township; Rural Water Company, with franchises covering Wilkins township; Valley Water Company, with franchises covering Penn township; and Artesian Water Company, with franchises covering the borough of Wilkinsburg, all in the county of Allegheny and state of Pennsylvania, and is engaged in the business of pumping, storing, selling and distributing water. The office and principal place of business of the defendant company is in the county of Allegheny.</p> <p>2. Prior to 1899 the defendant company, or the companies merged, had provided and erected the works and machinery deemed necessary by the company for the raising and introduction into the districts embraced within its charter of a sufficient supply of pure water, and had provided and maintained the buildings, cisterns, reservoirs, pipes and conduits required for the reception and conveyance thereof.</p> <p>3. By sundry conveyances and assurances of law fully set out in paragraphs two and three of plaintiffs’ bill, the plaintiffs, Walburga J. Burkhard, Josephine Friday and Mary A. Saupp, are seized in fee and possessed of a certain tract of land situate in the township of Penn. The fee simple in said property is vested absolutely in the plaintiffs in the proportion of three-sevenths to Walburga J. Burkhard and two-sevenths each to Josephine Friday and Mary A. Saupp, excepting therefrom the coal thereunder, with the mining rights, if any, attached thereto.</p> <p>4. In the year 1890 (prior to the institution of proceedings in the court of common pleas No. 1, at No. 731, March Term, 1897) and within the period when the property was owned by Josephine Wolf or Theodore Heilman, predecessors in title of plaintiffs, the defendant company exercised its right of eminent domain over the property of plaintiffs, containing 5.8519 acres by the location and construction of a pipe line from its reservoir on adjoining lands, which pipe line was constructed along the township road known as the Puckety road, and within the boundary of the tract containing 5.8519 acres. The pipe line was constructed without the permission of Josephine Wolf or Theodore Heilman and without proceedings being instituted to condemn the right of way, and without damages being assessed or paid to Josephine Wolf or Theodore Heilman.</p> <p>5. At No. 731, March Term, 1897, the defendant company presented its petition to the' court of common pleas No. 1 representing that it had exercised its right of eminent domain over the tract of land owned by plaintiffs for the purpose of laying and constructing thereon a thirty-inch cast-iron pipe line for the transportation of water from its pumping station on the Allegheny river at Wildwood to its reservoir on defendant’s land immediately adjoining the land now proposed to be taken, and prayed that its bond in the sum of $30,000 therewith filed be approved. Josephine Wolf, to whom the bond was tendered, was the owner of the property then proposed to be taken and was plaintiffs’ predecessor in title. The pipe line was not constructed.</p> <p>6. About June 20, 1903, the defendant company presented its petition to the court of common pleas No. 2 of Allegheny county at No. 733, July Term, 1903, representing that it had exercised its right of eminent domain over the property now owned by the plaintiffs and had taken a portion thereof for the purpose of erecting a reservoir thereon, and prayed the approval of a bond in the sum of $15,000 then filed. Thereafter, on December 19, 1903, the defendant company presented its petition to the court of common pleas No. 2 averring that the company had investigated the adaptability of the land for said purpose and found it unsuitable, and in view of this and of the excessive price and determined opposition to condemnation, the company was desirous of discontinuing the proceedings and withdrawing the bond, which petition was allowed, and by consent of court the bond was withdrawn April 23, 1904.</p> <p>7. In 1907, to meet the demand for an adequate supply of pure and wholesome water, it became and was necessary for the defendant company to enlarge its plant by the construction of a filtration system, and for the purpose of erecting thereon a filtration plant and other works for the reception, filtration and conveyance of water, the defendant company in February or March, 1909, surveyed and appropriated 5.8519 acres of the tract owned by the plaintiffs.</p> <p>8. In March or April, 1909, but prior to April 16, W. C. Holly, the superintendent, and acting as the authorized agent of the defendant company, visited Walburga J. Burkhard, one of the plaintiffs, at her place of residence on Penn avenue, in the city of Pittsburg, explained the company’s purpose of taking and appropriating á part of the tract of land situate in Penn township, of which she was one of the owners, and offered her the sum of $10,000 for the part proposed to be taken. Mrs. Burkhard refused the offer, stating that the owners, the plaintiffs, had a cash offer of $40,000 for the entire tract. After the offer had been made and rejected, Josephine Friday, one of the plaintiffs, entered the room where the conference was being held and Mrs. Burkhard, either in the presence of Mr. Holly or immediately after his departure, informed Mrs. Friday of the offer made by Mr. Holly.</p> <p>9. That portion of plaintiffs’ property containing 5.8519 acres was duly and properly appropriated by the defendant company for its corporate uses by a resolution of its board of directors passed at a regular meeting of the board, held on April 16, 1909.</p> <p>10. On April 17,1909, the defendant company presented to the court of common pleas No. 2 of Allegheny county, at No. 268, July Term, 1909, its petition, representing, inter alia, that the defendant company had been unable to agree with the owners of the land (plaintiffs herein) upon the amount of damages sustained by reason of taking and occupying the land appropriated; that a bond had been tendered to and refused by the owners, and prayed the approval of bond in the sum of $30,000 then filed. On April 22 exceptions to the sufficiency of the bond were filed by the owners and thereafter, on May 4, 1909, upon leave of court, the bond was withdrawn. On May 11 the defendant company filed its bond in the sum of $30,000 together with a petition praying its approval. On the same day exceptions to the sufficiency of the bond were filed by the owners. On the day following, May 12, the court entered the following order, “Exceptions to the bond filed herein are all overruled except the first, without, however, passing upon the merits of the controversy sought to be raised by them and without prejudice to the except-ants’ right to prosecute them in any other form, and the first exception is sustained as to the amount of bond, being of the opinion that the bond should be in the sum of $40,000. A bond in that amount with the same sureties and in the same form will be approved.” And on May 14 bond of the defendant company and its sureties in the sum of $40,000 was presented in open court and approved and ordered filed.</p> <p>11. Shortly after the approval of the bond by the court of common pleas No. 2 the defendant company entered upon and occupied the 5.8519 acres taken and appropriated, and ever since has been and is now in possession thereof, and has erected thereon, or has in course of erection, the sedimentary and settling basins, the septic tank and other appliances and apparatus necessary in the construction of a filtration system.</p> <p>12. To enable the company to erect and construct a filtration plant, it was necessary that the company acquire additional land either, by purchase or condemnation. In taking and appropriating plaintiffs’ land for that purpose the defendant company exercised its right in good faith. The land taken adjoins the defendant’s land, upon which is erected its reservoir No. 1 and in location and elevation is adapted to the requirements of a filtration plant.</p> <p>CONCLUSIONS 03? LAW.</p> <p>1. The approval by the court of common pleas No. 2 of Allegheny county of the bond filed by the defendant company was an adjudication that an attempt had previously been made by the company to settle with the plaintiffs, owners of the property, and that everything had been done entitling the defendant company to file the bond.</p> <p>2. A water company is vested by law with the power to acquire by purchase or condemnation such lands as may be necessary for its corporate uses and purposes. This power is not exhausted by a taking for an original construction of its plant and instrumentalities, but may be exercised when by the growth of population and increased demand it becomes necessary to acquire lands for the enlargement or extension of its plant.</p> <p>3. The defendant company by a prior exercise of its right of eminent domain over plaintiffs’ land did not thereby exhaust its power to condemn such additional parts thereof as might reasonably be required for the erection thereon of a filtration plant necessary to enable the company to furnish the public with an adequate supply of pure water.</p> <p>4. The defendant company is vested by law with the selection of a location for the plant and instrumentalities necessary for the supply of pure water, and this discretion cannot be inquired into unless it be shown that its action was capricious or wantonly injurious. There was no evidence in this case which would justify the court in reviewing the discretion exercised by the board of directors of the defendant company in taking and appropriating part of plaintiffs’ land.</p> <p>5. The plaintiffs in this proceeding cannot impeach the constitutionality of the act of assembly under which the defendant company is formed.</p> <p>6. The bill should be dismissed with costs.</p> <p>The questions raised by plaintiffs and urged upon argument are:</p> <p>(a) Was a bona fide effort made by the defendant company to effect an amicable agreement with the plaintiffs as to compensation for the land sought to be taken, and if not, what is the effect of its failure to make such an attempt?</p> <p>(b) Had the defendant company prior to the filing of the bond in this matter exhausted its right of eminent domain over plaintiffs’ property?</p> <p>(c) The Act of May 29,1901, P. L. 349, under which the defendant company is organized and doing business, is unconstitutional.</p> <p>We will consider the questions in order:</p> <p>The contention of the plaintiffs is that even conceding that an effort has been made to agree with Mrs. Burkhard, yet there was no evidence to show that an attempt had been made to agree with either Mrs. Saupp or Mrs. Friday and that such effort not having been made the court of common pleas No. 2 had no jurisdiction to entertain proceedings in condemnation and to approve and confirm the bond tendered.</p> <p>In Bland v. Tipton Water Co., 222 Pa. 285, wherein a like contention was urged, Mr. Justice Brown, said:</p> <p>“We need only repeat what was said in Wadhams v. Lackawanna and Bloomsburg Railroad Co., 42 Pa. 303, Tt is now insisted that there was no evidence of any attempt by the defendants to settle with the plaintiffs, and agree upon the damage before they filed the bond given as security. Hence it is inferred that the tender of the bond and the filing of the same was authorized by law and the defendants were not empowered to appropriate the land for said road. Though the acts of assembly do not in terms require any attempt to make a settlement before a tender of bond or filing it in the common pleas, it is perhaps a just inference from their language that there should be some evidence of inability of the parties to agree before the court shall undertake to pass upon the security offered. But the very offer of the bond is an assertion by one of the parties that they cannot agree and is in itself some proof of such inability, for without the consent of both such an agreement cannot be made and if it is not so, the action of the court approving the sureties and directing the bond to be filed involves an adjudication that everything has been done which entitled the company to have the bond filed. If an attempt to settle was a prerequisite, the order of the court is conclusive that the attempt had been made. The decree of the court, like any other judgment, is final between the parties as to all matters adjudicated therein directly and to all facts which were essential to that adjudication. ’ The act of 1874 does not in terms require any attempt to make a settlement before a tender of a bond or filing in the common pleas. ”</p> <p>In this case, the bond first filed, on exceptions to the amount being sustained, was withdrawn and a second bond filed, thereby indicating that the parties had not and could not agree.</p> <p>The defendant company was incorporated for and engaged in supplying water to a number of boroughs, townships and districts. Prior to 1899 the company maintained a plant consisting of a pumping station, reservoirs, and apparatus for the raising and storing of water, and had laid the mains and lines required for its distribution. It is not denied by the plaintiffs that the plant operated by the defendant was inadequate to supply a sufficient quantity of pure water nor that to meet the demand and make reasonable provisions for the future it was necessary to construct a filtration plant, but they contend that the defendant had therefore exercised its right of eminent domain over plaintiffs’ land of which the 5.8519 acres was a part condemning a part thereof for the construction of a pipe line, an additional part for the erection of a reservoir, and by the laying of a pipe line along the public road known as the Puckety road, thereby exhausting its power, and is now unable by the exercise of the right of eminent domain to take and appropriate any additional part of the land affected by the condemnation proceedings or by the laying of the pipe line.</p> <p>The power of a water company is not exhausted by a taking of land for an original construction of its works. It is not bound to provide for a demand which could not have been foreseen. The increase in trade and business, the change in conditions, the extension of municipalities and growth in population may necessitate increased facilities and an enlarged plant.</p> <p>The cases relied upon by the plaintiffs hold that when a railroad company has exercised its power of location and adopted a route for its line there is no necessity or authority for any further exercise of that power.</p> <p>In the case of Keller v. Riverton Water Co., 34 Pa. Superior Ct. 301, the distinction between the rights which may be exercised by a railroad company in the location of its routes, and the rights of water companies was pointed out and it was held that a water company does not exhaust its rights to condemn land by a single exercise of the right of eminent domain. In that case the court says:</p> <p>“When it appears, as it does in the present case, that the performance of the duties it owes to the public requires a second exercise of a power expressly conferred on a corporation, it seems both anomalous and unreasonable to hold that such power is exhausted by a single use of it. ”</p> <p>We therefore hold that the defendant company had a right to acquire by purchase or condemnation such additional land as was required for the erection and construction of a filtration system necessary for an adequate supply of pure water.</p> <p>The act of May 29,1901, is entitled, “An act supplementary to an act to provide for the incorporation and regulation of certain corporations, approved April 29, 1874, providing for the merger and consolidation of certain corporations.”</p> <p>Section 1 of the act provides that it shall be lawful for any corporation now or hereafter organized under or accepting the provisions of the act of 1874, or any of the supplements thereto, or of any other act of assembly authorizing the formation of corporations to buy and own the capital stock and merge its corporate rights with and into those of any other corporation, so that such corporations may consolidate.</p> <p>The plaintiffs contend that the act offends against art. Ill, sec. 3, of the constitution, in that the subject is not clearly expressed in the title for the reason that the title gave no notice that the act provided for the merger and consolidation of corporations organized under the supplements to the act of 1874, nor under “any other act of Assembly authorizing the formation of corporations.”</p> <p>It has uniformly been held that the validity of a charter for a public purpose cannot be determined in a collateral proceeding by a private suitor. It can only be done in a direct proceeding in which the commonwealth is a party. “Whether for any reason the charter of a corporation was originally invalid, or has been forfeited is a question which the commonwealth only can raise:” Olyphant Sewage-Drainage Co. v. Olyphant Boro., 196 Pa. 553. In Windsor Glass Co. v. Carnegie Co., 204 Pa. 459, it was held that the Act of June 19, 1871, P. L. 1360, enables a private suitor to demand that the charter to do the thing complained of shall be shown. “But it does not put him,” as the court says, “in the Commonwealth’s place, or clothe the court at his instance with the Commonwealth’s general power of inquiry. The inquiry is limited to the nature and extent of the franchises prima facie conferred by the charter and does not extend to the validity of the charter itself.”</p> <p>If the act attempting to confer the power was invalid of course the power did not exist, but this plaintiff cannot be heard to make that objection and hence the objection on that ground fails: Freeland v. Pennsylvania Central Insurance Company, 94 Pa. 504.</p> <p>If it be conceded that the plaintiffs may question the existence of the defendant company as a de facto corporation by showing that the act under which the company was incorporated is invalid, yet the objection urged by the plaintiffs would not justify the court in declaring the act unconstitutional.</p> <p>The Act of April 29,1874, P. L. 73, had for its object the establishment of a uniform and convenient system for the formation and regulation of corporations and is known as the corporation act of 1874. Clause 9 of sec. 2 authorizes the incorporation of companies for the supply of pure water. The Act of May 16,1889, P. L. 226, is "A further supplement to the Act of 1874,” amending secs. 2 and 34 by providing, inter alia, for the incorporation of additional corporations.</p> <p>The act of 1901 is a further supplement to the act of 1874. That its title does not refer to the act of 1889, itself a supplement to the act of 1874, we do not regard as material. It is unnecessary in the title of a supplementary act to refer to the fact that a previous supplement or amendment to the original act has been enacted.</p> <p>The title of the act has but one subject clearly expressed, and to it every provision is germane. No one could read the title to the act and fail to understand that the purpose of the legislation related to the merger and consolidation of corporations and it is therefore in harmony with the constitutional requirements.</p> <p>Let a decree nisi be entered accordingly.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Negligence — Mines and mining — Master and servant — Mine foreman —Act of June 10,1907, P. L. 588.</p> <p>1. The employers’ ¿ability Act of June 10, 1907, P. L. 523, does not effect any change in the law as it stood before the passage of the act with respect to liability for injuries received by employees in coal mines where the mines are out of the control of the owners and in charge of a certified mine foreman.</p> <p>2. For any failure of a mine foreman to discharge the duties imposed by the mining Act of May 15, 1893, P. L. 52, the mine owner cannot be held liable, inasmuch as the state makes the mine foreman its representative and vests in him the determination of all questions relating to the security of the mines with power to compel compliance with his directions.</p> <p>3. If a mine foreman negligently fails to make a proper clearance between the railroad tracks in a coal mine and the wall of the mine, and a workman in the mine is injured or killed thereby, the owner of the mine is not liable in damages for the injuries sustained.</p>

<p>Will — Construction—Legacy—Absolute gift.</p> <p>1. Testator provided in his will “Two policies” of life insurance “made out in the name of my daughter, I bequeath to her the proceeds from same to be placed at interest for her use and the use of her foster mother M. I also want my administrator to give of the first moneys in his hands $300 to said M. so she and my daughter may have the means to live in until the insurance is paid and interest come from same. All the balance of estate, after debts are paid, to go to my wife, to do with it as she pleases.” After the date of the will the insured’s estate in some manner was substituted as a beneficiary in the policies. Held, (1) that the word “proceeds” had no other signification than to distinguish between the policies and what would be realized thereon in connection with the matter of investment; (2) that the daughter took an absolute estate in the proceeds of the insurance subject to a life interest in one-half thereof in M.</p> <p>2. A bequest of the interest or produce of a fund without limitation as to the extent of its duration is a bequest of the fund itself.</p>

<p>Appeal, No. 111,</p> <p>Oct. T., 1911, by plaintiff, from decree of C. P. No. 2, Allegheny Co., Jan. T., 1911, No. 45, dismissing bill in equity in case of Charles A. Schuldice v. The City of Pittsburg, William A. Magee, Mayor, and Eustace S. Morrow, City Controller.</p> <p>Taxpayer’s bill to enjoin a city from negotiating a loan without the assent of the electors, and to have declared void ordinances providing for the widening of certain city streets.</p> <p>From the bill and answer Frazer, P. J., found the following facts:</p> <p>1. Plaintiff is a resident and taxpayer of the city of Pittsburg.</p> <p>2. The city of Pittsburg is a city of the second class under the laws of this commonwealth. William A. Magee is the mayor, and. Eustace S. Morrow is the city controller thereof.</p> <p>3. The assessed value of the taxable property of the city of Pittsburg is $751,226,965, and the amount of the indebtedness of the city created and incurred without the express assent of the electors as provided by law, is $19,664,641.05.</p> <p>4. By an ordinance duly passed by the select and common councils of the city and approved by the mayor, the proper officers of the city are authorized and directed to issue and sell bonds of the city, amounting in the aggregate to $81,000, for the purpose of providing funds to purchase water mains belonging to the Monongahela Water Company, and now laid in that portion of the city which was formerly known as the boroughs of Espíen and Elliott, and also for the purchase of water to be supplied to consumers in territory annexed to the city, now supplied by the South Pittsburg Water Company.</p> <p>5. By ordinances of the city of Pittsburg, duly passed by select and common councils and approved by the mayor the widening of Diamond street from Smithfield street to Gala alley, of Oliver avenue from Smithfield street to Grant street, and of Cherry way from Fifth avenue to Sixth avenue, was authorized, each of the ordinances authorizing the improvement of these highways providing "that the costs, damages and expenses occasioned thereby, and the damages caused by the change of grade of said public highways be assessed against and collected from the properties specially benefited thereby.”</p> <p>6. The highways referred to in the previous paragraph are located in the business center of the downtown district of the city of Pittsburg, where the value of real estate is greater than in any other locality of the city.</p> <p>7. The damage to property abutting on these highways, resulting from land taken and change of grade, is estimated at $2,216,000 in the bill. To what extent that sum will be offset by benefits collected by the city is problematical. The defendants, however, in their answer aver that the ultimate liability of the city will not exceed the sum of $951,000 on account of the proposed improvements.</p> <p>8. Included in the indebtedness of the city of Pittsburg of $19,664,641.05, as found in the third finding of facts, are the following items:</p> <p>(a) The sum of $382,977.07, being the preliminary estimate of the cost of grading, paving and curbing certain public highways and constructing certain public sewers. For the purpose of completing those improvements contracts have been let. The work, however, is not finished and final estimates have not been made. The ordinances under which these improvements are being made provide that the cost and expenses of the same shall be paid and collected from property benefited thereby.</p> <p>(b) The sum of $2,183,201.87, being the amount of a legal indebtedness of the city, evidenced by certain bonds known as the “Railroad Compromise Bonds.” The indebtedness for which these bonds were issued was incurred, and the bonds issued, prior to the adoption of the present constitution.</p> <p>(c) The sum of $121,000, evidenced by certain funded debt bonds, bearing date of January 1, 1872, and payable January 1, 1912, which indebtedness was incurred, and the bonds therefor issued, prior to the adoption of the present constitution.</p> <p>(d) The sum of $5,214,700, evidenced by refunding bonds as follows:</p> <p>Refunding bonds, dated June 1,1882, maturing June 1, 1912, . . . . $ 77,000</p> <p>Refunding bonds, dated June 1,1883, maturing June 1, 1913, .... 1,403,000</p> <p>Refunding bonds, dated Dec. 1,1885, maturing Dec. 1, 1915, .... 3,734,700</p> <p>These refunding bonds were issued by the city without the consent of the electors, in pursuance of the provisions. of an act of assembly entitled: “An Act authorizing cities of the second class to issue bonds to an amount equal to the street bonds and temporary loan bonds now outstanding, not exceeding $6,000,000, for the purpose of retiring or paying temporary loan bonds and street bonds,” approved May 9, 1879, P. L. 49. Of these bonds $2,933,500 were issued for the purpose of extinguishing and paying off certain prior bonds issued by the city for work done under contracts made for street improvements previous to the adoption of the present constitution; and $2,281,200 were issued for the purpose of extinguishing and retiring certain prior bonds issued by the city after January 1,1874, for the improvement of certain streets. The indebtedness for which these bonds were issued was created under the provisions of an act of the general assembly, entitled: “An Act to provide for the improvement of Penn Avenue, and other avenues and streets in the City of Pittsburg,” approved April 2, 1870, P. L. 796. Of the bonds refunded $2,134,600 were actually issued prior to January 1, 1874, for streets improved prior to that date, and the remainder were issued for improvements made subsequent to that date or immediately preceding it. The indebtedness created by issuing bonds under the Penn avenue act, for improvements made both before and after January 1, 1874, was refunded by the refunding bonds bearing date June 1, 1882, June 1, 1883, and December 1, 1885, referred to above. The refunding bonds are all of like form and character, and the indebtedness created by the city under the provisions of the Penn avenue act, whether created before or after January 1,1874, was refunded indiscriminately by the issues of the refunding bonds herein referred to, so that the identity of the original issues was obliterated.</p> <p>(e) Bonds to the amount of $1,566,400 purchased by the sinking fund commission, under the provisions of the Act of March 7, 1901, P. L. 20, and now held by that commission, which bonds were issued by the city since January 1, 1874, without the consent of the electors.</p> <p>(f) Defendants further contend that the following items should be deducted from the aggregate indebtedness: (a) cash in the hands of the sinking fund commission for the redemption of bonds issued without the consent of the electors, amounting to $865,938.92; (b) the sum of $576,802.31, outstanding special assessments made against property benefited by municipal improvements. Of this latter sum $381,291.31 is due the city under special assessments, lawfully made and municipal liens already filed for the recovery of the same, but which still remain open and unpaid; and $195,511 consists of assessments lawfully made against properties benefited by improvements, which still remain open and unpaid, but where liens have not as yet been filed, the time in which the same are required by law to be filed not having expired. These assessments can be used for no other purpose than in the payment of the amounts due contractors for the improvements. .</p> <p>The court dismissed the bill.</p> <p>Error assigned among others was the decree of the court.</p>

<p>Equity — Jurisdiction—Specific performance — Vendor and vendee— Contract for sale of land — Written contract varied by parol — Fraud— Statute of frauds.</p> <p>1. The Act of April 22, 1856, P. L. 532, 2 Purd. 1757, known as the statute of frauds, is not a mere rule of evidence, but a limitation of judicial authority to afford a remedy.</p> <p>2. Under this statute, a contract for the sale of land must be in writing and both the consideration and the subject of the agreement must be definitely defined. The land must be described in the agreement or by reference to a plan or other matter so that it can be identified and located, and .the description must be sufficiently definite within itself and not require the aid of parol testimony or be left to the future action of the same or other parties.</p> <p>3. Where a written executory contract for the sale of land is reformed by parol evidence on the ground of fraud, accident or mistake, the whole contract is, in contemplation of law, reduced to a parol agreement which the statute of frauds declares to be void, and, where there is no estoppel, incapable of being specifically enforced so as to compel the transfer of title to real estate.</p> <p>Equity — Fraud, accident or mistake — Contracts—Reforming written contracts — Parol testimony.</p> <p>4. Wherever a written instrument fails to express the intention of the parties by reason of fraud, accident or mistake the injured party may invoke the equitable jurisdiction of the court which, by the aid of parol testimony, may reform it; but the court cannot, if the reformed instrument involves a contract for the sale of real estate, specifically enforce it.</p>

<p>Appeal, No. 122, Oct. T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., Aug. T., 1910, No. 448, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Thomas Reilly v. Bernard White.</p> <p>Rule for judgment for want of a sufficient affidavit of defense in action on a building contract. Before Kennedy, P. J.</p> <p>Suit was brought by the plaintiff to recover from the defendant the sum of $49,474.21, of which $29,474.21 was claimed as balance of contract price and extras, and $20,000, on a general claim for damages. The statement of claim admitted that the work was not completed until April 4, 1910, although it should have been completed on February 1, 1910.</p> <p>An affidavit of defense was filed which denied any indebtedness to the defendant for the following reasons:</p> <p>1. The plaintiff owed the defendant for delay the sum of $10,200.</p> <p>2. Certain extras claimed by the plaintiff were denied.</p> <p>3. A set-off for: (a) Damages to an adjoining building owned by the defendant, the walls of which slipped and cracked as a result of the plaintiff negligently excavating too close to said adjoining building, and faffing to shore up the walls of said adjoining building as he agreed to do in the contract, and, (b) Damages to the defendant’s stock of furniture and carpets contained in an adjoining building, occasioned through the plaintiff’s failing to put in a dust and waterproof partition between the two buildings, which the contract required him to do; the total of said set-offs amounting to $75,000.</p> <p>The plaintiff entered two rules for judgment, one for the entire amount set forth in his statement of claim, and another for certain portions as to which he alleged the affidavit of defense was insufficient, the former of which was discharged at plaintiff’s request. The second rule was made absolute in an opinion filed May 13, 1911, and judgment for plaintiff was ordered entered for $29,338.37.</p> <p>A motion was immediately made by defendant’s counsel for reargument and the court consented to hear counsel on one point only involved in said motion, viz.: defendant’s claim for $10,200 liquidated damages. Thereafter, the court filed another opinion modifying its judgment to the extent of holding that the affidavit was sufficient as to this item, and reduced the judgment accordingly to $19,138.07. Defendant then took this appeal.</p> <p>The court entered judgment for plaintiff for $19,138.07. Defendant appealed.</p> <p>Errors assigned were order making absolute rule for judgment and in entering judgment for plaintiff for $19,138.07.</p>

<p>Decedents’ estates — Partition—Notice of proceedings — Payment of assigned mortgage — Laches—Estoppel.</p> <p>On July 20, 1898, the owner of an undivided fourth interest in certain real estate devised to her by a decedent mortgaged it to a reputable attorney, the mortgage being duly recorded. On August 20, 1898, the attorney, as mortgagee, assigned the mortgage upon the margin of the record to a church board, a member of the firm of attorneys for the church board having examined the title of the mortgagor. At the time of the execution of the mortgage, as well as when it was assigned to the church board, there were pending in the court below proceedings in partition in the decedent’s estate, which culminated in an order of sale to a trust company as trustee, the proceedings being given due legal advertisement. The property was sold and, on an adjudication of the account of the trustee, the amount of the mortgage with interest was awarded to the attorney mortgagee “for use of” the church board. No one appeared at the audit on behalf of the church board as assignee. On May 26, 1899, the trustee paid to the attorney mortgagee the amount awarded upon the mortgage and he placed upon the record a receipt signed by himself as “Atty.” He never paid this sum over to the church board but from time to time paid interest to the board on the mortgage debt until his death on July 8,1905. In the following May or June, when the board was about to take steps to Collect the interest for more than a year which had apparently accrued on the mortgage, it discovered the facts. In March, 1907, the board entered into an agreement with the trustee that nothing should be done for six months during which time the trustee should be allowed to use its name in an effort to collect from the attorney’s estate, without prejudice to either party. In November, 1909, the board presented a petition to the orphans’ court to compel payment by the trustee to the board of the amount awarded to it under the mortgage. Held, (1) that the board had actual notice of the partition proceedings; (2) that it had constructive notice of the sale and of the filing of the trustee’s account; (3) that it was estopped by its laches from seeking relief from the trustee; and (4) that the petition was properly dismissed.</p>

<p>Appeal, No. 123, Oct. T., 1911, by Karl F. Miller, from decree of O. C. Allegheny Co., Feb. T., 1911, No. 133, dismissing exceptions to adjudication in Estate of Anna M. Gunning, deceased.</p> <p>Exceptions to adjudication. Before Miller, J. -</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Wills — Constructions—Contingent remainders — Failure of particular estate — Acceleration of remainder.</p> <p>1. A contingent remainder can only exist where it has a particular estate to support it. With the destruction of the particular estate the contingent remainder necessarily falls.</p> <p>2. Testatrix, after directing the sale of her real estate, gave certain legacies from the proceeds and then provided: “The income of the balance to be given to K. M., provided he is not living with the woman he married in 1899 — one J. W., should she die, or he is divorced from her — that is finally divorced — he is to be given absolutely one half of the principal, and the interest of the other half as long as he lives. If he marries again he can by will leave all to his second wife and children. If he dies unmarried a second time without children the one half — or all his share — is to be equally divided between the children of W. G., C. G. and J. B. In no case is the present wife of K. M. to benefit by anything I leave him either in personal or real estate.” At the time of testatrix’s death K. M. was living with his wife, the J. W. referred to in the will. Held,, that the gifts to the children of W. G., C. G. and J. B., were contingent remainders and that when the gift to K. M. failed because the condition upon which it was to vest was not fulfilled at the time the will became effective, the contingent remainders were not accelerated but fell with the failure of the particular estate supporting them.</p> <p>3. If a gift over is limited to take effect on a particular event and the very opposite or alternative of that event actually happens, the subsequent gift fails altogether, though the prior gift be out of the way.</p> <p>4. A contingent remainder following a particular estate given on a condition which has failed; is not accelerated by the failure of the particular estate to vest, on account of the nonperformance of the condition.</p>

Appeal, No. 143, Oct. T., 1911, by Sarah McConnell, from decree of O. C. Allegheny Co., Feb. T., 1911, No. 133, dismissing exceptions to adjudication in Estate of Anna M. Gunning, deceased. • Exceptions to adjudication. Before Miller, J. The facts appear in the opinion of the Supreme Court and in Gunning’s Est. (Nos. 1, 2), ante, pp. 139, 144. Errors assigned were in dismissing exceptions to adjudication.

<p>Appeal, No. 141, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 2, Allegheny Co., April T., 1906, No. 1,269, for defendant in case of The Colonial Trust Company, Trustee, etc., v. David Foster, Surviving Executor, etc.</p> <p>Proceedings on a scire facias sur mortgage. Before Shaper, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned among others was in giving binding instructions for defendants.</p>

Appeal, No. 145, Oct. T., 1911, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 220, on verdict for plaintiff in case of Joseph F. Sulzner v. Cappeau-Lemley & Miller Company. Replevin to recover certificate of stock. Before Swearingen, P. J. The opinion of the Supreme Court states the case.

Appeal, No. 148, Oct. T., 1911, by defendant from judgment of O. P. No. 2, Allegheny Co., April T., 1908, No. 1143, on verdict for plaintiff in case of Carl Springer v. The Pullman Company. Trespass to recover value of personal effects, lost in transit. Before Haymaker, J. The facts are stated in the opinion of the Supreme Court. Verdict for plaintiff for $2,000 and judgment thereon. Defendant appealed.

Appeal, No. 209, Oct. T., 1911, by plaintiff from judgment of C. P. Indiana Co., Dec. T., 1907, No. 233, on' verdict for defendant in case of Greenwich Coal and Coke Co. v. Elias Learn. Action under the Act of June 10, 1893, P. L. 115, on an issue to determine the title to coal under a certain piece of land. Before O’Connor, P. J., specially presiding. The plaintiff' claimed under a deed from Peter Learn dated September 9, 1902.

Appeal, No. 158, Oct. T., 1911, by plaintiff from order of C. P. No. 2, Allegheny Co., Jan. T., 1911, No. 581, dismissing rule for judgment for want of a sufficient affidavit of defense in case of Jesse Coates v. Allegheny Steel Company. Eule for judgment for want of an affidavit of defense.

Appeal, No. 171, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., Second T., 1908, No. 97, on veridict for plaintiff in case of Salvatore Catanzaro, doing business as S. Catanzaro & Company v. Pennsylvania Railroad Company. Assumpsit for the value of a consignment of fruit damaged in transit. Before Cabnahan, J. The opinion of the Supreme Court states the case. Verdict for plaintiff for $8,270.92, and judgment thereon. Defendant appealed.

Appeal, No. 160, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., Fourth T., 1907, No. 240, on verdict for plaintiff in case of City of Pittsburgh v. Pittsburgh Railways Company. Assumpsit to recover cost of cleaning city streets. Before Swearingen, P. J. The opinion of the Supreme Court states the case. Verdict for plaintiff for $226,000.00 and judgment thereon. Defendant appealed.

Appeal, No. 15, Oct. T., 1911, by plaintiffs from decree of C. P. No. 2, Allegheny Co Oct. T., 1909, No. 1139, dismissing bill in equity in case of Adelaide Miller Blick and Horace J. Miller v. James M. Cockins et al. Bill in equity to declare a trust ex maleficio. Before Si-iafer, J. The facts appear in the opinion of the Supreme Court and in Miller v. Cockins, 231 Pa. 449. Error assigned among others was decree dismissing bill.

<p>Appeal, No. 164, Oct. T., 1.911, by plaintiff, from decree of C. P., No. 4, Allegheny Co., Third T., 1910, No. 248, in equity, dismissing bill in case of Levi Bird Duff v. Heppenstall Forge and Knife Co.</p> <p>Bill in equity to restrain encroachment upon street. Before Swearingen, P. J.</p> <p>The plaintiff alleged in his bill that he is the owner of four lots in the plan of the executors of the will of Anna H. Irwin, deceased, by title derived from said executors; that at the time said plan was recorded, all of the streets and alleys in said plan were opened for use to the lot holders and to the public and the lots were conveyed to purchasers by numbers, bounding them by the streets and alleys of said plan, and since that time the lot holders and the public have had free and uninterrupted use of said street and alleys of said plan, and hold their lots subject to such use; that the defendant is the owner of lots 33 to 50 inclusive, and also lots 51 to 69 inclusive, in said plan, and holds said lots subject to the free use of said streets; that the defendant has encroached upon Home Street, by extending its buildings five to ten feet on the east side thereof over the building line and threatens to permanently obstruct and close said street from Hatfield to Valley Streets, and it has occupied with buildings a part of Valley Street and threatens to permanently close Valley Street from Holly Alley to 47th Street; and that the obstructions to and closing of said streets will greatly injure the plaintiff’s property. The plaintiff prayed that the defendant be required to remove the obstructions from said Home and Valley Streets, and that it be enjoined from further obstructing and closing the same.</p> <p>It appeared by the defendant’s answer and upon the trial that the City of Pittsburgh, by an ordinance enacted June 24th, 1907, had ordained that Home Street from Hatfield Street to Valley Street, in said plan of the executors of Anna H. Irwin, deceased, be vacated.</p> <p>Also that said city, by another ordinance approved June 16th, 1910, enacted that said Home Street from Hatfield Street to Valley Street be vacated, upon condition, however, that the ordinance should not be effective unless the owners of the abutting property should pay $3,000 into the City Treasury within thirty days after its passage, which sum was paid into the City Treasury of Pittsburgh on July 16, 1910.</p> <p>Home Street and Valley Street were each fifty feet wide.</p> <p>Error assigned was in dismissing the bill.</p>

<p>Appeal, No. 168, Oct. T., 1911, by Katharine B. S. Borland et al., from order of O. P., No. 2, Allegheny Co., July T., 1905, No. 326, dismissing petition for review in account of The Fidelity Title and Trust Company, Administrator, c. t. a., of the Estate of James M. Bailey, deceased, surviving partner of Phillips, Nimick and Company.</p> <p>Petition for review. Before Frazer, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was refusal of review.</p>

<p>Promissory notes — Husband and wife — Principal and surety.— Act of May 16, 1901, P. L. 191f.</p> <p>1. Where a bank discounts a promissory note executed by a wife to the order of her husband and endorsed by the husband, with knowledge that the wife is a surety, and upon the husband’s lunacy takes from the wife for the same debt a new note made by the wife, and endorsed by the latter’s sister, and, after several renewals thereof, the sister dies, the administrator of the sister cannot resist payment of the note on the ground of the invalidity of the original note as against the wife. In such a case the bank is entitled to the protection afforded by the 57th and 66th Sections of the Act of May 16, 1901, P. L. 194, relating to negotiable instruments.</p> <p>2. When a new debtor is substituted by way of novation for the original debtor there is a sufficient consideration for the new debtor’s note as for his own debt.</p> <p>3. The endorsement of a promissory note implies a guaranty by the endorser that the maker was competent to contract in the character in which by the terms of the note he purported to contract. The endorser cannot set up the incapacity of the maker for the purpose of defeating his own liability.</p>

<p>Appeal, No. 172, Oct. T., 1911, by defendant from decree of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 85, on bill in equity in case of Jacob Steinberg and Katy Steinberg, his wife v. J. H. D. Eagan.</p> <p>Bill in equity for a partnership accounting. Before Shafer, J.</p> <p>Prom the record it appeared that under the partnership articles the assets specified in the decree were to become the property of the plaintiffs if the defendant cancelled the agreement.</p> <p>The court found as a fact that Eagan, dissolved the partnership.</p> <p>The court entered a decree the material portions of which were as follows:</p> <p>First: That a partnership existed between the said J. H. D. Eagan and the said Jacob Steinberg and Katie Steinberg, as provided in the articles of agreement attached to and made part of plaintiff’s Bill of Complaint.</p> <p>Second: That the said partnership was dissolved by the act of the defendant, J. H. D. Eagan, on the 13th day of July, 1910.</p> <p>Fourth: It is further decreed that all of the patents, equipment, unfilled orders on hand, stock of material, finished product or product in process of completion, which belonged to the said partnership at the time of its dissolution, July 13th, 1910, become the property of the plaintiffs, Jacob and Katie Steinberg, in the liquidation of the said partnership.</p> <p>Fifth: It is further decreed that C. W. Reamer, Esq., be and he is hereby appointed auditor to state an accounting between the parties in accordance with the terms and conditions of the article of agreement attached to plaintiffs’ Bill of Complaint.</p> <p>Errors assigned were various findings, conclusions and rulings, and the decree of the court.</p>

<p>Trusts and trustees — Interest on trust funds — Father and son— “Advancements.”</p> <p>Where a father assigns to a trustee together with other personal property a number of promissory notes made by two of his ¡sons with directions to pay “the net -income of said properties,” to the grantor and his wife and the survivor during their lives, and upon their death, after charging the two sons who had made the notes “as in the case of advancements, the sums due from them specified above, or so much thereof as shall not have been paid,” to divide the properties held by him in trust among the grantor’s six children, the promissory notes carry interest until the death of the surviving parent, and upon the final distribution of the estate the shares of the two sons who had made the notes are chargeable with all unpaid interest on the same.</p>

<p>Appeal, No. 175, Oct. T., 1911, by defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1906, No. 238, on verdict for plaintiff in case of H. W. Joynes to use of W. W. Joynes v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for overcharge in freight rates.</p> <p>At the trial it appeared that plaintiff is a produce merchant at Pittsburgh. His principal business is the buying and selling of potatoes. During the years 1900 to 1905 inclusive, he purchased on the eastern shore of Maryland some 800 cars of Irish and sweet potatoes, all of which were consigned to him at the Pennsylvania Lines produce yards at Pittsburgh. The shipments were from thirty-two stations on the N. Y. P. & N. R. R. Co., coming into Pittsburgh over the lines of the defendant. The defendant had in force a tariff duly filed with the Interstate Commerce Commission fixing the rates on potatoes, applicable to territory including the eastern shore, in part as follows: “The following estimated weights will apply in cars where actual scale weights cannot be ascertained.... Potatoes, white or sweet (in barrels) when it is practicable for agents to weigh same, will be charged at actual weight; but when it is not practical to weigh same, the following estimated weights will govern: Sweet potatoes, — when shipped in common or truck barrels, per bbl., 170 pounds. White potatoes, — when shipped in common or truck barrels, per bbl., 180 pounds.” The contracts of carriage or bills of lading, provided: “Owners or consignees shall pay freight... .according to weights ascertained by any carrier hereunder____”</p> <p>The defendant collected freight for the plaintiff’s potatoes on the basis of the estimated weights fixed by the above tariff. In February, 1906, the plaintiff brought suit to recover the difference between the freight paid, based on estimated weights, and that which he claimed should have been collected based on the actual weights; alleging that it had been practicable to weigh the shipments, and that he had continued to pay because he was kept in ignorance, by fraud and misrepresentation, of the fact that the freight was charged on estimated weights. Subsequently he twice amended his statement, and averred his bills of lading and that he was coerced into paying the freight. It was specially admitted in the court below by counsel for the defendant that, “The charges were made on estimated weights and not on actual weights,” and that, if the plaintiff was entitled to recover under the evidence, the amount claimed by Ms counsel at trial was correct and would not be questioned.</p> <p>The court charged the jury, inter alia: (a) “The important question for you to determine is whether or not it was practicable to weigh these potatoes, shipped from the points named down on the Eastern shore____ to the plaintiff here in Pittsburgh. It is claimed by the plaintiff that it was entirely practicable to weigh those potatoes. The defendant maintained it was not practicable.” (b) “The plaintiff claims to have shown you that at a great many of those stations there were scales that could have been used, that it was practicable to use those scales at the points of shipment in order to ascertain the actual weight of the potatoes, and that the company should have done so and should have charged, as provided by the Inter-state Commerce Commission, for the actual weight instead of what was shown to be the estimated weight. They claim that if it was not practicable to weigh the potatoes at all of the stations, yet they passed through a number where it was entirely practicable to do so, and that it was the duty of the defendant company and especially incumbent upon them, if they could not have them weighed at the other points, to weigh them here in Pittsburgh, where the freight was payable by the plaintiff, and where it is claimed they have the facilities for weighing the potatoes. It was claimed they could readily have done this, and thus have determined the amount of freight to be paid by the plaintiff according to the actual weight of those potatoes. Now that is the question. Could they have done that at any of these points? Was it practicable for them to weigh these potatoes? Has the testimony on behalf of the plaintiff satisfied you by its weight that it was practicable, if so, the plaintiff is entitled to recover.” (c) “Now that is the question. Could they have done that at any of these points? Was it practicable for them to weigh these potatoes? Has the testimony on behalf of the plaintiff satisfied you by its weight that it was practicable, if so, the plaintiff was entitled to recover. If he has failed in that respect, the burden being upon him, your verdict must be for the defendant. The defence claim he has failed, and has thought it unnecessary to offer any evidence, claiming the plaintiff has not made out his case. In other words, the plaintiff has not shown you by the preponderance of evidence, that it was practicable to weigh these potatoes. That is the question for you to determine, and if you determine that in favor of the plaintiff you allow him the amount of his claim, and if he has not done so, your verdict must be for the defendant company.”</p> <p>The verdict was for the plaintiff in the sum of $4,967.69; the defendant’s motion for judgment non obstante veredicto was refused and judgment entered on the verdict. The defendant appealed.</p> <p>Errors assigned: (1) Overruling defendant’s objection to testimony in reference to claims on shipments made more than six years prior to the filing of the first amended statement, on the ground that new and different causes of action barred by the statute were introduced by the amendment. (2) Refusal of binding instructions for the defendant. (3) Refusal of defendant’s point, “There is no evidence proper to submit as to the practicability of weighing the shipments of potatoes in question.” (4) Refusal of defendant’s point: “There is no evidence proper to submit as to the weight of the shipments of potatoes in question at the shipping points where the railroad, the N. Y. P. & N., received them.” (5) The admission of testimony concerning weighing of cars as indicated by record cards. (6) The admission of testimony as to notations on certain cards, the cards not being produced. (7) Failure to instruct the jury specifically as' to the meaning of the words “practicable” and “practical.” (8) Portion of the charge “b” above quoted. (9) Portion of the charge “c” above quoted. (10) Refusal of judgment non obstante veredicto for the defendant. (11) The admission of testimony that there was a track scale at Delmar. (12) Admission of testimony that there were scales at Harrisburg and Altoona. (13) Admission of testimony that there were scales at Pittsburgh. (14) Refusal to continue the case because of a statement volunteered by the plaintiff when upon the stand, after warning by counsel for the defendant, the record of which is as follows: “s. In any instance did they charge you on the actual weight? A. No, sir. By Mr. Miller: Confine yourself to the cars in issue in this suit. By the witness: They did settle on actual weights on cars in 1905, but not in this case.”</p>

Appeal, No. 181, Oct. T., 1911, by defendant from order of C. P. No. 2, Allegheny Co., July T., 1911, No. 406, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Joseph F. Erny now for use of Joseph F. Erny, Trustee of German National Bank et al. v. W. N. Sauer. Scire facias sur mortgage. The facts are stated in the opinion of the Supreme Court.

<p>Appeal, No. 186, Oct. T., 1911, by defendant from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 23, on verdict for plaintiff in case of Elizabeth Flynn v. Pittsburgh Railways 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>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Errors assigned were in refusing binding instruc-' tions for defendant, and in refusing defendant’s motion for judgment n. o. v.</p>

<p>Decedents’ estates — Sale of real estate — Ratification of sale — Act af April 13, 1854, Sec. 3, P. L. 368.</p> <p>1. Where executors have sold the real estate of a decedent for the payment of debts, without an order of court, the Orphans’ Court may subsequently approve, ratify and confirm such sale. The authority conferred by the third section of the Act of April 13, 1854, P. L. 368, applies to all sales, and is not confined merely to sales under the Price Act. Its application is general, and its authority may be invoked wherever the court may have previously authorized a sale or conveyance of real estate.</p> <p>2. A testator gave his trustees power to sell real estate. The executors who were also trustees executed an agreement to sell real estate for the purpose of raising money to pay debts. The deed in pursuance of, the agreement was signed by the parties as executors and trustees. No order of court was procured authorizing the sale, but subsequently a petition was filed in the Orphans’ Court praying for the ratification of the sale. All parties in interest, except one person, waived the issue of the citation, and a citation was served on this person and on all creditors of the decedent who had filed suits to preserve the lien of their debts, the statutory period of two years from the death of the decedent having then expired. All the facts necessary to give the Orphans’ Court jurisdiction were averred in the petition, and no one objecting, a decree of confirmation was entered. Subsequently the fund raised by the sale was distributed, and a dividend was paid thereout to the creditors. Thereafter the executors and trustees brought an action on a bond given by the purchaser of the real estate to secure the payment of the purchase money. Held, that the purchaser had no standing in such suit to raise any question as to the validity of the sale, inasmuch as all parties in interest and all creditors had, either by participating in the proceedings, or by the citation, or by acceptance of dividends, been barred from all claims against the real estate.</p>

<p>Appeal, No. 201, Oct. T., 1911, by plaintiff from decree of C. P. No. 2, Allegheny Co., July T., 1911, No. 614, dismissing bill in equity in case of M. H. Gottschall v. I. K. Campbell et al., County Commissioners of Allegheny County, R. J. Cunningham, Controller of Allegheny County and George W. Foster, Treasurer of Allegheny County.</p> <p>Bill in equity for an injunction. Before Shafer, J.</p> <p>The case involved the constitutionality of the Allegheny County Court Act of May 5, 1911, P. L. 198.</p> <p>The court held that the act Avas constitutional and entered a decree dismissing the bill.</p> <p>Error assigned Avas the decree of the court dismissing the hill.</p>

<p>Appeal, No. 7, Oct. T., 1912, by plaintiff from decree of C. P. No. 2, Allegheny Co., July T., 1911, No. 614, dismissing bill in equity in case of M. H. Gottschall v. I. K. Campbell, J. Denny O’Neil and S. J. Toole, County Commissioners of Allegheny county, R. J. Cunningham, Controller of Allegheny county and George W. Foster, Treasurer of Allegheny county.</p>

<p>Negligence — Master and servant — Safe place to work — Steel mill.</p> <p>1. It is not only the duty of a master to provide a safe place for his servant to work, but also to maintain it in a reasonably safe condition by inspection and repair. This is a direct, personal absolute obligation from which nothing but performance can relieve the master.</p> <p>2. Where the recrement or “scull” of a steel mill falls in the operation of the converters on to the roof-shield, and it is the duty of the owner of the mill to keep the roof-shield clean of the scull so that it may not harden and fall on the vessel floor below where men are at work, and the owner fails to perform this duty, and an employee who was required by his work to be on the vessel floor is hit and injured by the falling “scull,” the employer is liable for the injury sustained. In such a case the employee’s injuries are not caused from dangers which arise during the progress of the work, but are due to the failure of the employer to furnish a reasonably safe place to work.</p>

<p>Bankruptcy — State and Federal courts — Jurisdiction—Dispute as to title of property — Qonsiitutional law.</p> <p>Where a contractor is adjudicated a bankrupt, and thereafter the owner of the building pays into court a sum of money due the contractor upon an estimate, and, in proceedings to distribute the fund questions of law and fact arise among three different claimants, and particularly where the constitutionality of the Pennsylvania Mechanics Lien Act is called in question, it is the duty of the court below to pass upon the various questions of law and fact raised in the proceedings, before turning over the fund to the trustees in bankruptcy.</p>

<p>Appeal, No. 62, Oct. T., 1911, by Henry Ulrich, from order of C. P. No. 2, Allegheny Co., July T., 1905, No. 990, dismissing exceptions to auditor’s report in case of Oil Well Supply Company v. Ulrich Stewart Manufacturing Company.</p> <p>Exceptions to auditor’s report.</p> <p>The case turned upon the auditor’s findings of fact.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p>

<p>Negligence — Railroads—Yards — Permissive crossing — Contributory negligence.</p> <p>1. Where a railroad company permits consignees of produce to enter its yard for the purpose of unloading ears, and it appears that there were certain plank crossings in the yard used by wagons, but that it was also necessary for consignees in order to get to their cars, to go diagonally across intervening tracks, the railroad company will be liable for the death of one of the consignees who was killed, by the negligent operation of a train, while he was diagonally crossing the tracks at a point other than the plank crossings. Such a case is not controlled by the rules of law applicable to grade crossing eases.</p> <p>Negligence — Damages—Death — Darning capacity — Partnership profits.</p> <p>2. In an action to recover damages for death, the profits in a partnership business in which the deceased was engaged are not an element of damages in determining his earning power. If the deceased received a salary as manager of a partnership business, or a percentage of the profits for his services as manager, it is competent to show such salary in establishing his earning power; so also if the deceased was engaged alone in a business which required little or no capital, such as truekering or huckstering, the profits of such business may be shown.</p> <p>3. Where a husband engaged in a small business with only a nominal capital invested, and having no other means of support, gives his wife a monthy allowance with which to maintain his family, for a long period of years, it is a fair inference that the sums of money so given came from his earnings, and in a proper case, such proof is admissible to show earning power at least to the extent of the amount so furnished.</p>

<p>Negligence — Railroads—Yards—Permissive crossing.</p> <p>Where a railroad company permits persons to enter its yard for the purpose of unloading cars of produce, and it appears that there were certain plank crossings in the yard used by wagons, but that it was also necessary for consignees of produce and their employees in order to get to their cars, to go diagonally across intervening tracks, the railroad company will be liable for the death of an employee of a consignee who was killed by the negligent operation of a train, while he was diagonally crossing, without negligence on his part, to the tracks on which the ears were at a point other than the plank crossings. Such a case is not controlled by the rules of law applicable to grade-crossing cases, and it cannot be held as a matter of law that the deceased was guilty of contributory negligence in making the diagonal crossing.</p>

<p>Appeals, Nos. 151 and 152, Oct. T., 1911, by defendant from judgment of C. P. No. 1, Allegheny Co., Dec. T., 1907, No. 176, on verdict for plaintiff in case of Mary McGonnell and Mary McGonnell, Executrix of the Estate of John McGonnell, deceased v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Macearlanb, J.</p> <p>At the trial the plaintiff was permitted under' objection and exception to prove her loss of earning power by showing that she had to employ more servants after her accident than before, inasmuch as she was not able to do a certain amount of work in her occupation as a keeper of a hotel or boarding house. (1)</p> <p>The court charged in part as follows:</p> <p>[“She is capable of earning, and she does not claim she is not, but she says she cannot do certain things that she used to do before, and that she is obliged to hire help. As throwing some light upon the value of her services, which she claims to have lost, she was permitted to testify to the value of the service of servants who had supplied her place. Now that is not the measure, what she has to pay some one, but it is evidence for you to take into consideration, if you find a verdict here, in arriving at the value of her labor. Whether that would be the full amount, or less, depends on how much of her service was lost, and as I say, I do not think she lost all of her service by any means.] (2)</p> <p>[“The verdict is always the present value, so far as the future losses are concerned, and you know perfectly well that it is worth more to a man to get one hundred dollars to-day than it is to get a dollar a day for one hundred days. That is a matter that always must be considered, and where money has been due for some time the jury may add, for its retention, compensation by way of damages for the delay, not interest as such. Perhaps several of you were on the jury the other day where the verdict said “and interest,” and I was obliged to have that word “interest” changed. If it happened to have said “damages at so much per cent.,” I guess it would have been all right. It might be less than six per cent.; it might be any per cent, that the jury would say was right. While six per cent, is the legal rate, money is sometimes not worth six per cent. You cannot always get it in any safe investment. For that reason the law allows the jury to fix it.] (4)</p> <p>Verdict and judgment for Estate of John McGonnell for $500, and for Mary McGonnell for $6,000. Defendant appealed.</p> <p>Errors assigned were (1) ruling on evidence quoting the bill of exceptions; (2, 4) above instructions quoting them and (3) that the charge of the court was inadequate.</p>

<p>Road law — Plan of lots — Dedication of streets.</p> <p>1. A sale of lots according to a plan which shows them to be on a street implies a grant, or covenant to the purchaser that the street shall be forever open to the use of the public and operates as a dedication of it 'to public use; and the owner of any lot in the general plan may assert the public character of any street and the right of the public to use it. The rights in dedicated streets acquired by a purchaser of lots by a deed referring to a plat are private contract rights, and are not affected by the failure of the municipality to act upon the dedication.</p> <p>2. The owner of any lot or lots who has purchased with the knowledge of the plan in accordance with which the lots were sold, cannot obstruct or deny to the public the right to use any of the streets or alleys shown on the plan. The easement over the streets is appurtenant to every lot, and becomes a property interest in the purchaser of the lot which may be protected by appropriate legal process.</p> <p>3. As between parties claiming under the original proprietor and having notice of the plan of lots, it is immaterial whether the plan was signed, acknowledged, or recorded.</p> <p>4. The fact that the original proprietor dedicated only twenty feet of a forty feet wide street, and that the remaining twenty feet was dedicated by another person to public use, does not defeat the right of a purchaser of lots in the plan to insist that twenty feet of street shown on the plan should be kept open for public use.</p> <p>5. The Act of June 16, 1836, P. L. 749, providing that streets lanes and alleys within the city of Pittsburgh laid out by private persons shall be deemed public highways has no application to land laid out in lots when situated in a township, but which subsequently became part of the city of Pittsburgh. In such a case the right of a lot owner to an easement in the streets cannot be taken away by a city ordinance.</p> <p>6. Where land has been laid out in a plan of lots showing Streets and alleys, a reference to a street in the subsequent deeds as a public highway is proper, and is no evidence that it was such prior to the dedication by the proprietor who laid out the plan of lots.</p>

<p>Practice, O. P. — Buie to show cause — Extension of time for answer — Discretion of court — Deceiver’s sale.</p> <p>1. Where a rule is granted to show cause why a receiver should not make a private sale, and notice of the rule is accepted before the return day by a party in interest, and such party twenty-one days after the return day asks leave to file an answer nunc pro tunc as of the return day, and leave is refused, such action of the court will not he reversed by the appellate court, if it appears that no explanation or excuse was offered for the delay by the respondent.</p> <p>2. The allowance or refusal to allow an extension of time in which to plead or answer is a matter within the discretion of the court in which the proceeding is pending. It is a power indispensable to the proper conduct of the business of the court, and nothing short of gross abuse would warrant a reversal of its order.</p>

Appeal, No. 196, Oct. T., 1911, by plaintiff from order of C. P. No. 1, Allegheny Co., December Term, 1906. No. 1015, refusing to take off non-suit in case of Max Bauman v. Best Manufacturing Company. Trespass to recover damages for personal injuries. Before Macfarlane, J. The facts are stated in the opinion of the Supreme Court. Error assigned was in refusing to take off non-suit.

<p>Appeal, No. 237, Oct. T., 1911, by plaintiff from decree of C. P. No. 4, Allegheny Co., Second Term, 1910, No. 348, dismissing bill in equity in case of William J. Kelly v. George W. Thomas, Martha A. Friend et al., Executors of the Estate of James W. Friend, deceased, F. N. Hoffstott, C. Jutte & Company, a Pennsylvania corporation, and Mississippi River Coaling Company, a Louisiana corporation.</p> <p>Bill in equity for an accounting and payment to the plaintiff of all moneys due from sales of coal made by certain of the defendants which should have accrued to the benefit of the Mississippi River Coaling Company, and of the moneys which should have been derived from coal that could and would have been sold by said Company but for the alleged fraudulent and unlawful acts of the defendants; further, to compensate the plaintiff for the depreciation in the value of his stock in the said Company, alleged to have been wholly destroyed by the acts or omissions of the defendants.</p> <p>On demurrer, Swearingen, P. J., filed an opinion dismissing the bill, from which the following material excerpts are taken:</p> <p>“The bill was filed by William J. Kelly, of New Orleans, Louisiana, against George W. Thomas, of Pittsburgh, Pennsylvania; Albert G. Thomas, of New Orleans; Martha A. Friend, Charles W. Friend and Theodore W. Friend, executors of the will of James W. Friend, deceased, of Pittsburgh, Pennsylvania; F. N. Hoffstott, of either Pittsburgh or New York; C. Jutte & Company, a corporation existing under the laws of Pennsylvania; and the Mississippi Coaling Company, a corporation existing under the laws of Louisiana.”</p> <p>“The complainant averred that he had made no demand upon the officers or directors of the Mississippi River Coaling Company to bring suit, for the reason that they were charged with a misfeasance set out in the bill, and that therefore such demand would have been useless. He also averred that his bill was brought in his own behalf and on behalf of any other stockholder who might desire to join.”</p> <p>“The said executors of the will of James W. Friend, George W. Thomas and C. Jutte & Company, have appeared. None of the other defendants named have appeared, and the record does not show that service was had upon any of them. The individual defendants who have appeared, have demurred to the whole bill..... therefore the averments of the bill, which are well pleaded, are to be taken as true.”</p> <p>“The important averments are these: The complainant is the owner of forty-eight per cent, of the capital stock of the Mississippi River Coaling Company, and C. Jutte & Co. is the owner of forty-one per cent, thereof, less four shares assigned to several persons to qualify them as directors. August 13, 1904, the complainant and C. Jutte & Co. entered into a written contract whereby they agreed that a corporation should be formed under the laws of Louisiana, with a capital stock of $100,000, for which the complainant and his associates were to subscribe, and the object of which was to build docks at the mouth of Lake Borgue Canal, in order to handle and store coal for the purpose of coaling steamers, supplying bunker coal and loading cargo or bunker coal for export; that complainant was to transfer to said corporation a lease of certain property for its purposes; that O. Jutte & Company was to loan the corporation $40,000 upon its notes to be secured by the stock, as soon as the complainant had obtained a contract for C. Jutte & Co. to supply the Elder-Dempster Steamship Company with coal and had produced reasonable assurance in writing that C. Jutte & Co. was to obtain like contracts from other lines; that the Dock Company was to handle no coal except that of C. Jutte & Co., and all contracts were to be made in the latter’s name, and that the compensation of the Dock Company was to be all in excess of $2.85 per net ton, but it was not required to handle coal at a compensation of less than thirty cents per ton. Pursuant to said contract, a corporation of the State of Louisiana was formed and was named Mississippi River Coaling Company, with a capital stock of $100,000, which was subscribed by complainant and his associates. It was organized with a board of five directors. Complainant turned over to said corporation the lease, as he was required to do, for which he received $99,600 of said stock. He transferred to C. Jutte & Co. $52,000 of said stock, obtained a contract with Elder-Dempster Steamship Co. and assurances from other companies, and in all respects fulfilled his obligations under the contract. C. Jutte & Co. loaned the sum of $40,000 to the Dock Company and received the notes therefor and the collateral; and the coal tipple and docks were erected. Said George W. Thomas became president of the said Dock Company, his son, Albert G. Thomas, secretary and treasurer, and J. W. Friend a director. Complainant was also a director. Said George W. Thomas and James W. Friend were also controlling officers and directors in, and the principal owners of, the stock of C. Jutte and Company.”</p> <p>“It was averred that the defendants, who controlled both corporations and had a large interest in C. Jutte & Co., fraudulently failed to enforce said contract in favor of the Dock Company and against C. Jutte & Co., and fraudulently violated the same for the benefit of C. Jutte & Co.; that instead of selling coal through the Dock Company, C. Jutte & Co. sold coal directly to said Steamship Companies and deprived the Dock Company of the large profits it would have made; that C. Jutte & Co. neglected to obtain other large and valuable contracts for the benefit of the Dock Company, and that said officers and directors permitted the coal tipple of the Dock Company to become out of repair and allow washes to occur under its foundations, which could have been prevented at smalZ expense. It was also averred that, on January 31, 1907, C. Jutte & Co. brought suit against said Dock Company in the United States Circuit Court for the Eastern District of Louisiana and service was had upon Albert G. Thomas, its secretary and treasurer, who was employed by and interested in C. Jutte & Co., said suit having been kept secret from the complainant; that on July 5, 1907, judgment was rendered in favor of C. Jutte & Co. and against said Mississippi River Coaling Company in the sum of $70,-489.95, with interest on $65,163.89 from January 1, 1907; and that the said claim was “wrongfully and fraudulently excessive,” and was “inflated and so made excessive as one of the means of depriving the Coaling Company of its property.” Execution was afterwards issued on said judgment and the property of the Dock Company was sold to officers and directors of C. Jutte & Co. for the sum of $18,000, it being of the value of at least $125,000. The complainant finally averred that his stock in the Dock Company, which was worth $50,000 had been rendered worthless by reason of said acts of the officers and directors and controlling stockholders therein.”</p> <p>“He prayed that the defendants be required to answer; that they be required to account for the sum ‘that may be due your orator’ from sales of coal which have been made and would have been made by the Dock Company and for the amount due ‘from the defendants to your orator,’ by reason of the violation of said contract: and that the ‘defendants be required to pay the plaintiff’ the amount found to be due. There was no prayer for any relief in favor of the Mississippi River Coaling Company.......”</p> <p>“The bill shows that, whilst tho original contract was between the complainant and C. Jutte & Co., one of the covenants was that a corporation was to be formed, and thereafter the dealings of C. Jutte & Co. were to be with that corporation; that such Corporation was formed; and that both the complainant and C. Jutte & Co. have performed their initial obligations to it, In fact, there is no averment in the bill that any covenant with C. Jutte & Co. made with the complainant personally has been broken. Nor is there any averment that any of the defendants violated any contract made with him directly or committed any breach of duty which they owed to him as an individual. On the contrary, the averments are, that C. Jutte & Co. subsequently broke the covenants it made with the Mississippi River Coaling Company — covenants found in the original contracts, it is true, but none the less made with the Dock Company —and that some of the defendants disregarded their duty to the Dock Company, not to the plaintiff, arising out of their fiduciary relations to it. It is charged that C. Jutte & Co., by some of the defendants, did not sell coal through the Dock Company; that it allowed the property of the Dock Company to depreciate; that it failed to secure other valuable contracts for the Dock Company.....Finally, complainant alleged that the defendant caused an excessiye judgment to be entered against the Dock Company and its property to be sold.</p> <p>... .The bill avers that judgment was obtained in the United States Court, and upon that judgment the property of the Dock Company was sold.”</p> <p>The Court determined that the “judgment was rendered in a Court of competent jurisdiction. It was the duty of that Court to determine, and it necessarily did determine, that the Dock Company was lawfully served with process, and was lawfully in Court. Its judgment must be taken as a verity....;” and further, that the Mississippi River Coaling Company was an indispensable party to the bill and no decree could be entered in its absence; that the bill was in effect an attempt to have the Court interfere ia the internal affairs of that com-' pany, and, since its domicile was elsewhere and it had no property in thi? State, to grant the relief prayed for would involve an interference in the internal affairs of a foreign corporation; that as against the demurrants the plaintiff was seeking relief solely in the capacity of a stockholder in the Coaling Company for wrongs done to that corporation, and that he had not shown a right to so proceed.</p> <p>The demurrer was sustained and the bill dismissed at the cost of the complainant.</p> <p>Errors assigned were in sustaining demurrer upon the grounds indicated in the opinion of the Supreme Court, and dismissing the bill.</p>

<p>Judgment — Buie to open judgment — Note—Forgery—Evidence.</p> <p>1. An application to open a judgment entered on a warrant of attorney is addressed to the equitable powers of the court and on appeal the question is whether there has been a proper exercise of judicial discretion.</p> <p>2. Where on a rule to open a judgment, the genuineness of the note on which judgment was entered is in dispute, and the issue is that of forgery, the writing is not of weight. Its execution is the subject of inquiry, and there is no presumption arising from the writing itself to overcome it. The burden of establishing its genuineness is on the plaintiff in the judgment.</p> <p>3. On a rule to open a judgment, defendant testified that he had not signed the note on which the judgment was entered, and that he was not at the time of its date indebted to the plaintiff in any amount. He was corroborated by two witnesses who were familiar with his handwriting, and knew his signature. His testimony was contradicted by the plaintiff and by experts who expressed the opinion that the note was genuine. Held, on appeal that the order making absolute the rule to open the judgment could not be reversed.</p>

Appeal, No. 210, Oct. T., 1911, by plaintiff from order of C. P. No. 4, Allegheny Co., Second Term 1909, No. 379, refusing to take off non-suit in case of George W. Bliss v. Pittsburgh Railways Company. Trespass to recover damages for personal injuries. Before Carnahan, J. The facts are stated in the opinion of the Supreme Court. Error assigned was refusal to take off non-suit.

<p>Appeal, No. 222, Oct. T., 1911, by plaintiffs from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1907, No. 1048, on verdict for defendants in case of Harry Standiford, J. B. Harrell, Jacob Wissler, Walter A. Armstrong and William A. Engel v. A. C. Kloman, L. E. Huseman, F. R. Huseman, P. Brennen and J. H. Bokerman.</p> <p>Assumpsit for breach of contract. Before Carnahan, J.</p> <p>The contract in question was in writing, and its premises containing the names of the parties was as follows:</p> <p>“Memorandum of agreement made and entered into this 18th day of May, 1906, by and between H. Standiford, and associates of the City of Washington, District of Columbia, parties of the first part, and A. C. Kloman, and associates of the City of Allegheny, Pennsylvania, parties of the second part, all of whom having signed their names hereto are made parties to this contract.”</p> <p>The remaining material portions of the contract are quoted at length in the opinion of the Supreme Court.</p> <p>At the trial the court construed the contract of May 18, 1906, as an extension of the option previously given on February 26, 1906, and gave binding instructions for defendants.</p> <p>Verdict and judgment for defendants. Plaintiffs appealed.</p> <p>Errors assigned were (1, 2) above instructions quot ing them.</p>

Appeal, No. 226, Oct. T., 1911, by plaintiff, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 14, on verdict for defendant in case of Frank T. Thompson v. Hazelwood Savings & Trust Company. Assumpsit to recover the amount of a deposit. Before Swearingen, P. J. The facts are stated in the opinion of the Supreme Court. Plaintiff presented the following points: 1.

<p>Appeals, Nos. 205 and 206, Oct. T., 1911, by plaintiff from order of C. P. No. 4, Allegheny Co., Third Term, 1909, No. 787, refusing to take off nonsuit in case of Thomas J. Parks, Administrator of Charles J. Parks, deceased, and Thomas J. Parks v. Lewis Foundry and Machine Co.</p> <p>Trespass to recover damages for personal injuries.</p> <p>It appeared that the suit was originally brought by Charles J. Parks by his father and next friend, Thomas J. Parks against the defendant. Charles J. Parks died during the progress of the suit.</p> <p>The facts of the case are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off non-suit.</p>

<p>Appeal, No. 231, Oct. T., 1911, by defendant from judgment of C. P. No. 4, Allegheny Co., First Term, 1909, No. 58, on verdict for plaintiff in case of G. Siyufy v. Pennsylvania Company.</p> <p>Assumpsit to recover the balance of a case of rugs. Before Carnahan, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,104.72. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions lor defendant.</p>

<p>Appeal, No. 232, Oct. T., 1911, by defendant from decree of C. P. No. 2, Allegheny Co., July Term, 1910, No. 530, .warding an injunction in case of Carnegie Borough v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company.</p> <p>Bill in equity for an injunction to remove a pier from Campbell’s Run.</p> <p>Frazer, P. J., found the facts to be as follows:</p> <p>FINDINGS OF FACT.</p> <p>1. Plaintiff is a municipal corporation of the County of Allegheny, incorporated under the general borough laws of this Commonwealth.</p> <p>2. Defendant is a railroad corporation subsisting under the laws of the State of Pennsylvania, and owns and operates a line of railroad connecting the City of Pittsburgh with points West. A portion of its line is situated within the municipal limits of plaintiff’s borough.</p> <p>3. Two streams, Chartiers Creek and Campbell’s Run, flow through plaintiff’s borough. The latter flows approximately East and West and empties into the former.</p> <p>4. In the operation of its railroad, defendant has constructed, and maintains and uses, a bridge over Campbell’s Run, about 250 feet above its mouth, upon which bridge are constructed and laid down seven tracks. The bridge is 44.4 feet in width, extends up and down the stream about 100 feet, and is from 5 to 7% feet above the bed of the stream. Previous to filing the bill in this case the superstructure rested upon and was supported by stone abutments located upon the banks of the Run. A short time before the entering of these proceedings defendant began erecting mid-way between the abutments of its bridge a concrete pier, which it has since completed, four feet in width and extending the full length of its bridge.</p> <p>5. There are at present, and have been for some time, two other bridges over Campbell’s Run in the immediate neighborhood of defendant’s bridge: (a) a highway bridge owned by Allegheny county, located 110 feet above defendant’s structure, which highway bridge connects Railroad avenue with Highland avenue, both of which are prominent streets of plaintiff Borough. This bridge has a span of 31 feet in length, across the stream, and is 7.72 feet in the clear above its bed; (b) a private bridge immediately below defendant’s structure, with a span of 28% feet and a clearance of 8% feet above the bed of the stream. The East abutment of this latter bridge is located almost directly in front of the East half of the bed of the stream, as divided by the new concrete pier of defendant’s bridge, and materially interferes with the flow of water, ice and debris under that portion of defendant’s bridge.</p> <p>6. The channel of Campbell’s Run below defendant’s bridge is contracted by the private bridge referred to in the preceding finding, to 30% feet, and is further reduced by cribbing upon the East side and a stone wall on the West side to 20 feet, to a point near its mouth. Where it empties into Chartiers Creek its channel width is 25 feet.</p> <p>7. The water shed of Campbell’s Run is precipitous territory, and when sudden or heavy rains occur the stream rises quickly and discharges a considerable volume of water, at times the water carrying with it large quantities of ice and debris.</p> <p>8. Upon several occasions during the past ten or twelve years, following extraordinarily rains or thaws, the channel of Campbell’s Run, at defendant’s bridge, has become closed with either ice or debris, thereby causing the water to flow upon the streets of the Borough in that immediate vicinity and carrying with it driftwood, ice and other debris.</p> <p>9. The concrete pier constructed by defendant under its bridge materially lessens the space for the flow of water under defendant’s bridge, and as conditions now exist in the bed of the stream under defendant’s bridge, and by the interference in its East channel by the abutment of the private bridge below, the danger of flooding the streets of the Borough and interfering with travel thereon is considerably increased.</p> <p>10. The purpose of defendant in reconstructing its bridge is to provide for the increased weight of its cars and motive power, and also to eliminate the supports, which, in the present bridge, now rise about two feet above the roadbed. The reconstructed bridge is to have a level surface over its entire stream and thus do away with the present supports, which defendant claims are dangerous and like to result in death or injuries to its employes. The testimony does not show that any employe of defendant Company was ever' injured by the supports of the present bridge.</p> <p>11. A bridge of sufficient strength to provide for the increased weight of defendant’s rolling stock can be erected without a pier in the middle of the channel of Campbell’s Run at a slight increase in cost over the proposed bridge with a middle pier.</p> <p>The court entered a decree enjoining the defendant from obstructing the stream.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 233, Oct. T., 1911, by defendants, from decree of C. P. No. 2, Allegheny Co., July Term, 1911, No. 29, awarding injunction in case of William Lamb et al. v. D. L. Redding et al., School Board of the School District of McKees Bocks Borough.</p> <p>Bill in equity for an injunction. Before Miller, J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree awarding injunction.</p>

<p>Appeal, No. 236, Oct. T., 1911, by defendant from decree of C. P. No. 3, Allegheny Co., Feb. T., 1911, No. 496, on bill in equity in case of City Improvement Co. v. City of Pittsburgh.</p> <p>Bill in equity for an injunction. Before Evans, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered the following decree:</p> <p>And now, to wit, this 23rd day of September, 1911, this cause came on to be further heard, at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows:</p> <p>1. That the ordinance of the City of Pittsburgh entitled, “An Ordinance locating Hamilton Avenue, from Frankstown Avenue to Fifth Avenue,” approved July 7, 1891, a copy of which is attached to the Bill of Complaint, is ultra vires, void and of no effect.</p> <p>2. That the ordinance of the City of Pittsburgh entitled, “An Ordinance relocating Hamilton Avenue, from a point 229.60 feet Westwardly from Lambert Street to Penn Avenue,” approved July 1st, 1903, a copy of which is attached to the bill of complaint, is ultra vires, void and of no effect.</p> <p>3. That the said ordinances of July 7, 1891, locating Hamilton Avenue, and of July 1st, 1903, relocating Hamilton Avenue, create a cloud upon the plaintiff’s title to the premises described in the Bill of Complaint, and that the same be removed therefrom.</p> <p>4. That the proper authorities of the City of Pittsburgh note upon the ordinance books, and upon the pages containing said ordinances of July 7th, 1891, and July 1, 1903, and upon the indices and records referring thereto, and upon the maps and plans of said city, referring thereto, the words, “Cancelled by the decree of the Court of Common Pleas No. 3 of Allegheny County, Pennsylvania, at No. 496 February Term, 1911.”</p> <p>5. That the defendant pay the costs of this proceeding.</p> <p>Error assigned was the decree of the court quoting it.</p>

<p>Mines and mining — Surface—Support—Waiver of damages— Intention of parties.</p> <p>1. In a grant of all tbe coal underlying a tract of land, in tbe absence of an express waiver, or tbe use of words from wbicb tbe intention to waive clearly appears, there is imposed upon the mineral estate tbe servitude of surface support. Tbe owner of the surface may waive the right of surface support by his deed or covenant.</p> <p>2. Where a deed conveys all the coal underlying a tract of land “together with the free and uninterrupted right of way into, upon and under said land at such points and in such manner as may be proper and necessary for the purpose of digging, mining and carrying away said coal, hereby waiving all damages arising therefrom,” the words “waiving all damages” are to be construed to include such injuries to the land as may result from mining and removing all the coal. By such a deed the grantor waives his right to surface support.</p>

<p>Appeal, No. 98, Oct. T., 1911, by defendant from decree of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 420, on bill in equity in case of Emma Erdner v. John W. Erdner.</p> <p>Rule to set aside a service under which was entered the following decree:</p> <p>“And now, to wit, Nov. 7, lt)10, this cause coming up for argument, it is ordered that George G. Erdner be appointed receiver of the Estate of John W. Erdner, to take charge of all property of defendant and preserve assets for benefit of creditors and for support and maintenance of wife of said John W. Erdner and with power to sell or mortgage sufficient of such estate for those purposes, and with further power to bring and defend all suits or actions at law that may be necessary to that end, and the creditors of the said John W. Erdner are hereby restrained from proceeding in any way against the property of said John W. Erdner, without the consent of the Court.”</p> <p>Shapes, J., filed the following opinion:</p> <p>“The proceeding is under the Act of May 23, 1907, as amended by the Act of April 27,1909, in relation to husband and wife and the remedies of married women in cases of desertion and non-support. While this action was brought before the passage of the Act of 1909, publication was had after that act, as therein directed, according to the method provided in the Act of April 6, 1859, P. L. 387. The bill of petition alleges a desertion before the passage of the Act, the domicile of the wife in Allegheny County, and that the husband has absented himself from the Commonwealth, and prays for the seizure and sale of certain real estate in the county of Allegheny, alleged to belong to the defendant, as may be necessary for the maintenance of the plaintiff. The defendant appeared d. b. e. and obtained a rule to show cause why the order authorizing service by publication should not be vacated and such service set aside.</p> <p>“The defendant claims thatthe Acts of 1907 and 1909, above mentioned do not authorize a service by publication, and that if they do they am unconstitutional. The Act of 1909 is said to be unconstitutional because it is alleged that the title contains m»re than one subject, the title being: ‘An Act to amend the Act of 1907, by permitting husband and wife to tesdfy, and providing for the method of service or process.’ ” We are unable to see how this constitutes two subjects. The object of the Act is to establish a proceeding for seizure of the property of husbands who desert their wives and making it available for the support of the wife, and the provision as to who may testify and as to the mode of service are both germane to the general subject and a mere detail of it, and could not well be put in two different acts.</p> <p>“It was alleged that the Act is ex post facto, the alleged desertion having taken place in 1905. This is not, we apprehend, a question which can be discussed upon the application of one who appears de bene esse. We are now concerned only with the validity of a service upon him. Whether the circumstances are such as will make the Act applicable to him or not can only be discussed when the subject matter of the bill comes before the court.</p> <p>“It is further alleged, and this is the principal matter in question, that the proceeding is not of such a character as to authorize the Commonwealth to proceed against him without an actual service, and that .a service by publication is therefore null. The argument of the defendant is based upon the view that the proceeding is an attempt to collect a debt, or to enforce the lights of a creditor or at least of a quasi-creditor. We agree with the defendant that no personal decree could be entered against him on the proceeding provided by these Acts, and if they attempt to authorize any such proceeding they would be to that extent unconstitutional and void. But we do not understand that the Act undertakes to do anr such thing. All it provides for is that in case a wife is domiciled in this Commonwealth and has been diverted by her husband, and the husband has, within tie jurisdiction of the Court, property real or personal which can be applied to her support, this may be dme by adopting the proceeding provided for by the Ait. The duty of the husband to support Ms wife does not depend upon contract, but results from the status of the parties. It would he strange indeed were the Commonwealth unable to seize by appropriate proceedings the property left behind by a deserting husband and use it for the maintenance of the wife. The subject, matter of the proceeding is not a personal right of action of the wife against the husband, but is the status of the wife and the property itself, and as these are within the jurisdiction- of the Court the case falls within the terms of the Act of 1859, the constitutionality of which as to service by publication under the circumstances provided for in it has not been questioned.</p> <p>“It is also objected to the service that no publication was made in the Pittsburgh Legal Journal, as required by the Act of May 3, 1909. That Act provided that all notices required by law to be published shall be put in a legal newspaper ‘unless dispensed with by special order of Court.’ The order for the publication of this case directs in what newspaper the publication shall be made without any mention of the Pittsburgh Legal Journal. The Act of 1859 provides that the publication shall be made in such one or more newspapers ‘as such Court shall by special order direct.’ We are of the opinion that an order of this Mnd, especially one made under an Act requiring a special order, amounts to a dispensation from publication in a legal journal. Being of opinion, therefore, that the service is good, the rule is discharged.”</p> <p>Error assigned, among others, was (5) the decree entered.</p>

<p>Wills — Construction—Life estate — Children—Buie in Shelly’s case.</p> <p>A devise of land to a daughter “to have and to hold for the term of her natural life and at her death to vest in her child or children, if any such survive her, and in the event of her death without child or children,” then over to testator’s sons, creates in the daughter a life estate only.</p>

<p>Election law — Ballots—Marking ballots — Stickers—Obliteraiion of printed matter.</p> <p>1. Under the Uniform Primaries Act of Feb. 17, 1906, P. L. 36, the only proper mode of voting for persons whose names are not already on the ballot is by inserting their names in the blank spaces prepared therefore.</p> <p>2. The affixing of a “sticker” containing the name of a candidate not printed on the ballot, in such a manner as to obliterate in whole or in part the name of an opposing candidate printed on the ballot, renders the vote for the office in question illegal and void.</p> <p>3. Where a ballot is marked with two X’s, one made by pencil opposite the name printed upon the ballot and the other printed upon the sticker pasted over such name, the real intention of the voter is not shown with sufficient definiteness to comply with the law.</p> <p>Mr. Justice Mestrezat dissents.</p>

<p>Decedents’ estates — Sale of real estate — Price Act — Conversion —Wills.</p> <p>1. Where a will gives no power to sell real estate, does not blend realty and personalty in such a way as to show a clear intent to create a fund and bequeath the same as money, and does not disclose an absolute necessity to sell real estate, but after the will is probated, the land is sold under proceedings instituted under the Price Act of April 18, 1853, P. L. 503, the record of which shows the necessary jurisdictional averments and the specific intent to bar contingent and vested remainders and executory devises, the fund created by the sale will be deemed real estate for the purposes of distribution.</p> <p>2. Where a testator provides: “all the rest and residue of my estate, real, personal and mixed, I direct to be divided into three equal parts or shares,” and these parts or shares are separately given to trustees for the respective parties, there is no such blending of realty and personalty as- to convert the real estate into personal estate.</p> <p>3. Authority given by a will to trustees “to make from' time to time such investments or changes in the investments of the estate and money herein given to them in trust as may become necessary, or they or the survivor of them may deem advisable,” does not in itself work a conversion of realty into personalty.</p>

<p>Wills — Issue devisavit vel non — Undue influence — Evidence • — Insufficient evidence to sustain verdict.</p> <p>A verdict against a will in an issue devisavit vel non where undue influence is alleged, will be set aside, where the evidence shows that the testator, a man sixty three years old when he died, made his will in favor of his second wife more than a year before his death and six years after his second marriage; that the will was executed in testator’s own privacy, and remained in his exclusive control to within a few days of his death; that testa1or was a man of unusual intelligence and superior judgment; that although he drank liquor as a habit, he was not under its influence when his will was made nor had it weakened his will power; that he lived happily with his second wife who had con•fributed to his comfort and happiness; that the wife had not attempted to influence her husband against his children by his-first wife; and that evidence of a meretricious relation between the testator and the second wife during his first wife’s lifetime was admitted, and given an undue weight by the trial judge in his charge to the jury.</p>

<p>Appeals, Nos. 72 and 73, Oct. T., 1911, by defendants from judgments of O. P. Washington Co., Feb. T., 1910, Nos. 131 and 132, on verdicts for plaintiffs in case of Mary Forno, a minor, by Charles Forno her next friend and Charles Forno, father of Mary Forno, in Ms own right v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before McIlvainb, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for Charles Forno for $5,000, and for Mary Forno for $4,000. Defendant appealed.</p> <p>Errors assigned were (1) portions of the charge referred to in the opinion of the Supreme Court and (2) in refusing binding instructions for defendant.</p>

<p>Appeal, No. 52, Oct. T., 1911,</p> <p>by defendant from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1908, No. 222, on verdict for plaintiff in case of Mary Geiger, survivor of Adam Geiger, dec’d. and Mary Geiger v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Davis, J.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>The defendant presented the following points:</p> <p>Third: A person attempting to board a car by climbing over the guard rail on the blind side of an open car, is not a passenger, and the mere fact that he gets into the body of the car in safety does not make him a passenger.</p> <p>Answer: Refused. (2)</p> <p>Fourth: The deceased, Michael Geiger, in attempting to board an open summer car on the blind side, placed himself in a dangerous position, and was guilty of contributory negligence; therefore, the plaintiff in this case is not entitled to recover.</p> <p>Answer: This point is affirmed, if you find that this accident arose from the facts that this point will cover, namely: That this man placed himself in a dangerous position, where he ought not to have placed himself, and where he took the risk; and if he lost his life there, that then he was guilty of contributory negligence and she could not recover in this case. (3)</p> <p>The court charged in part as follows:</p> <p>[“And if you arrive at the conclusion, from the weight of the evidence, that this Michael Geiger was a passenger or an intending passenger, and did not go to that front platform for the purpose of renewing this altercation, then there could be a recovery in this case. And then you come to the question of damages.”] (4)</p> <p>Verdict and judgment for plaintiff for $2,898. Defendant appealed.</p> <p>Errors assigned among others were (2-4) above instructions quoting them.</p>

<p>Appeal, No. 179, Oct. T., 1911, by defendants from decree of C. P. No. 4, Allegheny Co., Second Term, 1910, No. 390, awarding partition in case of Johnston F. Dunshee, et al. v. Margaret L. Dunshee, et al.</p> <p>Bill in equity for partition. Before Swearingen, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The material portion of testator’s will was as follows:</p> <p>1. I give my entire estate to my wife during her life.</p> <p>2. At her death I give to my son M. P., the sum of five thousand dollars, to my daughters, Margaret L. and Edith each ten thousand dollars, and the balance of my estate to be divided into seven shares, one of which shall go to each of my children.</p> <p>In distributing my estate any indebtedness from any of my children to me, shall be first deducted from their shares, and in this, any debt due by me on account of endorsements for Duquesne Tube Works shall be charged against my son Wm. A., because those endorsements were at his instance. In case either my said son Wm. A. or my son Johnston F. shall die before me the shares which they would otherwise be entitled to shall remain in the estate and go to my remaining children.</p> <p>3. My Executors shall sell my real estate and make deeds to the purchasers or divide the whole or what remains after this between my heirs.</p> <p>The provisions of the codicil are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 234, Oct. T., 1911, by defendants from, decree of C. P. No. 2, Allegheny Co., Jan. T., 1910, No. 445, on bill in equity in case of Robert H. Leitch, Executor of the Estate of Isabella Arnold, deceased, v. Diamond National Bank of Pittsburgh, et al.</p> <p>This was a bill in equity filed by Robert H. Leitch, executor of the estate of Isabella Arnold, deceased, against The Diamond National Bank of Pittsburgh, Pa., Robert J. Cleland, William C. Cleland, Thomas A. Cleland, James T. Arnold, and Robert J. Cleland, attorney in fact for James T. Arnold, The purpose of the bill was to obtain possession of certain bonds which at the time of the death of Mrs. Arnold were in the safe deposit vaults of the bank. It was alleged that these bonds were the property of Isabella Arnold, having been given to her by her husband, James T. Arnold. The</p> <p>James T. Arnold and Isabella Arnold were husband and wife. They resided in Allegheny City and in 1906 he was 81 years of age and she wras 68. They had no children and the husband’s next of kin were three nepheAvs, Robert J., William C., and. Thomas A. Cleland. James T. Arnold was a man of wealth, which material facts as found by the trial judge, are as follows: no property. He had three safe deposit boxes in The Diamond National Bank of Pittsburgh, numbered 125, 158 and 159, in which he kept his various securities and title papers. Previous to May, 1906, his wife had joint access with him to box 159.</p> <p>In May, 1906, Mr. Arnold called at the office of Robert H. Leitch, a young lawyer, whose mother had been his lifelong friend, but who had previously rendered no legal services to either himself or his wife, and .requested Mr. Leitch to accompany him to the bank. They went into the vault, where Mr. Arnold unlocked the three boxes, removed therefrom a part of the contents, which he placed on the table. He then told Mr. Leitch that he was going to give Mrs. Arnold all his negotiable bonds and would put them in a box -which he then and there designated as hers. He then took certain securities from box 159, in which he said some of the bonds were, and threw them into box 158. In June, 1906, he said that he had placed all his negotiable bonds in Mrs. Arnold’s box, 158, and that they were hers. In July, 1906, he requested Mr. Leitch to call at his house to prepare a will for Mrs. Arnold, whereby she was to dispose of the bonds he had given to her to various charitable institutions, and at the same time to draw a will for him. Mr. Leitch called as requested and Mrs. Arnold, in the presence of her husband and with a view to making her will, said that he had given her bonds then amounting to $110,000, and that he would give her other bonds that he would thereafter buy from time to time. Mrs. Arnold showed a list of charities showing specific bequests intended, which amounted to $90,000, with a balance of $20,000 to be given to the Woman’s Board, and providing for payment of the collateral inheritance tax. At the same time Mr. Arnold produced a list of securities and said that the items marked “B” were the bonds owned by Mrs. Arnold and that the unchecked items on the list were stocks and memoranda that he wanted in Ms will. It was suggested by Mrs. Arnold and agreed to by Mr. Arnold, after some slight protest, that, owing to his kindness in giving her the bonds and as a mark of gratitude, he should receive the interest on them during his life, and should have the right to enter her box, examine the bonds and cut off the coupons. He accepted the gift of the income and thereafter took and used the same, up to the time of his wife’s death.</p> <p>At the same time Mr. Arnold, in the presence of his wife, directed Mr. Leitch to prepare deeds for the conveyance of his real estate to the three Clelands, his nephews and next of kin, and a will by which he would dispose of his stocks and other securities. The deeds were prepared and executed.</p> <p>Mrs. Arnold subsequently stated to Mr. Leitch in the presence of her husband that he had set apart a box for her, that all the bonds he had given her from time to time were in that box, that she had keys for all the boxes just as he had, which were in a desk which she pointed out, and that she could go to the boxes whenever she desired. Mr. Leitch suggested that she place all her bonds in a box in her own name, but she declined to do this because she had given her husband back the income for life, and she wanted him to go to the bank, see the bonds and remove the coupons, as he had done before.</p> <p>On July 19, 1906, both Mr. and Mrs. Arnold executed wills drawn up in accordance with their previous instructions. The wills bore the same date and were executed simultaneously. Both were read and examined by them, and each kneAV the contents of the other’s. Mr. Arnold witnessed his wife’s will and she witnessed his. Mr. Leitch and the three Clelands were executors of the husband’s will and Mr. Leitch alone of the wife’s.</p> <p>By Mrs. Arnold’s will her husband was to receive, while he lived, all the interest and income from “all my money and bonds of which I may die possessed,” and the principal was given to religious and charitable institutions, two of the legacies of $10,000 each being subject to life estates in persons named. The specific legacies given in the will amounted to $90,000.</p> <p>Mr. Arnold’s will contained the following clause: "Having in other ways made full and ample provision for my beloved wife, Isabella Arnold, by turning over to her absolutely a certain portion of my property, I do not by this will give her anything more, as her acceptance of said portion of my property was and is to be taken as a full release of her dower rights under this will.” He made specific bequests, aggregating $50,000, to various persons and institutions, and gave the residue of his estate to his three nephews.</p> <p>Mr. Arnold afterwards stated to several witnesses that he had given bonds to his wife and that bonds which he subsequently bought were for his wife.</p> <p>On January 4, 1906, Mr. Arnold executed papers constituting Robert J. Oleland his attorney in fact, and in effect transferring all his securities to the three Ole-lands, retaining, however, a life interest in himself. On the same day he added a codicil to his will, by which he gave his "wife all his estate, except the real estate which he had conveyed to the Clelands, and named her as executrix. On May 18, 1909, he executed a further power of attorney to Robert J. Oleland.</p> <p>On May 27, 1909, Mrs. Arnold executed another will to the same effect as the former one, except that she now made specific bequests to religious and charitable institutions, amounting to $196,000. Her husband took no part in the preparation of the latter will and there is no evidence that he had any knowledge of its contents or execution. Mr. Leitch was again named as executor.</p> <p>Between July, 1906, and January, 1908, Mr. Arnold purchased $30,000 worth of bonds, which were placed in box 158. He gave Mrs. Arnold, in May, 1906, keys for each of the boxes, retaining duplicate keys for himself. At the time of Mrs. Arnold’s death, November, 1910, there were in box 158, bonds aggregating in value $203,-500. On December 30, 1909, on application of Robert J. Cleland, James T. Arnold was adjudged by reason of age and mental and physical infirmities, to be incapable of managing his affairs and Cleland was appointed his guardian.</p> <p>The trial judge also found that when Leitch went to the bank with Mr. Arnold in May, 1906, he was neither employed as counsel by him nor was he acting as his counsel. The relation of counsel did not begin until about July, 1906, and he then became counsel at the same time for both Mr. and Mrs. Arnold, concerning the same subject matter in which both were equally interested. His testimony relates throughout either to what took place in the presence of both Mr. and Mrs. Arnold, or to matters in which they were mutually concerned and about which he was employed by both. He represented no opposing interests, while acting for both clients but was employed to put in legal form certain matters about which they were mutually agreed.</p> <p>The court below held that there was a valid executed gift of the bonds in box 158, by James T. Arnold to his wife, and the defendants were enjoined from selling, transferring or delivering any of the bonds to any person other than plaintiff or from interfering with plaintiff’s possession of the same.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 42, Jan. T., 1911, by defendant from judgment of O. & T. Phila. Co., October Sessions, 1909, No. 377, on verdict of guilty of murder of the first degree in case of Commonwealth v. Sabatino DeMasi.</p> <p>Indictment for murder. Before Ralston, 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 various rulings sufficiently shown by the opinion of the Supreme Court.</p>

<p>Appeal, No. 274, Jan. T., 1912, by defendant from judgment of O. & T. Franklin Co., Sept. T., 1911, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth v. William Heed.</p> <p>Indictment for murder. Before Giclan, 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 on which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various instructions referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 83, Jan. T., 1911, by S. Megargee Wright, from decree of O. C. Phila. Co., July T., 1895, No. 104, dismissing petition to modify prior decree in Estate of John Wright, deceased.</p> <p>Petition to modify prior decree of the Orphans’ Court.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the petition.</p>

<p>Wills — Issue devisavit vel non — Refusal of issue — Signature—■ Alterations — Evidence.</p> <p>An issue devisavit vel non is properly refused where five witnesses positively identify the signature to the will as that of the testatrix, and testify that the entire will is in her handwriting, including interlineations and additions, and only one testifies that she thought the handwriting did not look like that of testatrix.</p> <p>The will is not avoided because the testatrix in her own handwriting added interlineations to identify two of the devisees by their married names, and because she added the abbreviations “Jr” to the name of the executor.</p>

<p>Contract — Sale—Cemetery monument — Compliance with contract — Evidence—Charge of court.</p> <p>In an action to recover the price of a monument, where the defense was that the granite used was not the kind stipulated, and that there were substantial defects in material and workmanship, the trial judge properly charges that the plaintiffs were bound to furnish the kind of granite specified, and if they did not they could not recover; and if they furnished the kind specified, but that the workmanship although not perfect, substantially complied with the contract, the plaintiff might recover the contract price less an allowance for minor defects.</p>

<p>Road law — Damages—Tenant—Voluntary removal.</p> <p>Where a tenant on the line of a proposed street improvement in a city voluntarily removes from the premises without notice from an authorized agent of the municipality, and the city subsequently tears down the buildings on the demised premises, the tenant can recover no damages from the city for the loss of his tenancy.</p>

<p>Appeal, No. 183, Oct. T., 1911, by plaintiffs from judgment of C. P. No. 4, Phila. Co., Sept. T., 1908, No. 3745, on verdict for defendants in case of Hyman Pokras, by Ms father and next friend, Philip Pokras and Philip Pokras in his own right v. Pennsylvania Salt Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries to a boy six years old. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the cáse.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Errors assigned, were various portions of the charge, and the charge as a whole.</p>

<p>Criminal law — Murder—Evidence—Alibi—Erroneous charge.</p> <p>1. Where the main purpose of evidence adduced by a defendant in a murder trial is to establish an alibi, but not the only purpose, it is error for the court in its charge to confine the effect of such evidence to the one purpose of establishing the alibi.</p> <p>2. On the trial of an indictment for murder where the evidence against the prisoner is purely circumstantial, and the defendant offers evidence for the purpose in part of establishing an alibi, it is error for the court to charge in such a way as to leave the jury to understand that they are to scrutinize more closely the evidence offered to show absence of the defendant from the scene of murder when perpetrated, than that offered to show his presence at the time, on the ground that the former was open to the suspicion that it was the product of subornation and perjury.</p> <p>3. The measure of proof when the sufficiency of evidence offered to establish an alibi is the question, is simply that it shall be satisfactory. It need not be beyond doubt. Where the evidence raises a balancing question, and the mind is brought to determine its preponderance, there may be a doubt still existing in the mind, yet the actual weight may be with the prisoner; and this proof will be considered satisfactory.</p> <p>4. Proof of an alibi is as much a traverse of the crime charged, as any other defense, and proof tending to establish it while not clear, may, nevertheless with other facts of the case, raise doubt enough to produce an acquittal.</p> <p>Criminal law — Murder—Good reputation — Charge—Motive— Reasonable doubt.</p> <p>5. On the trial of an indictment for murder where twenty or more witnesses testify to the good character of the accused, the charge is wholly inadequate as to such testimony where it merely says “some twenty witnesses were called upon the part of the defendant to testify to the general good character of the defendant, as a peaceable, law-abiding citizen,” and such inadequacy is not cured by an instruction in answer to points that “the evidence of this character is to be considered with the other evidence in the case, and if all the evidence combined creates a reasonable doubt, the defendant is entitled to acquittal.”</p> <p>6. On the trial of an indictment for murder where the motive charged was the desire of the accused to prevent the deceased from testifying in an inquiry as to a charge of embezzlement against the accused, it is only necessary to show the charge against the accused; that the investigation was still proceeding, that the deceased had been requested and was expected to testify; that his testimony, if given, would have inculpated the accused. Here the inquiry should have ceased.</p> <p>7. In every murder trial it is the duty of the trial judge to explain to the jury what they are to understand by reasonable doubt. It is proper for the court to say that the juror ought not to condemn unless he is so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest.</p>

<p>Appeals, Nos. 244 and 258, Jan. T., 1910, by plaintiff and defendant, from decree of C. P. Blair Co., Equity Docket D. No. 710, on bill in equity in case of Jobn W. Ebert v. Isaac C. Mishler.</p> <p>Bill in equity for an injunction.</p> <p>Shull, P. J., specially presiding filed the following opinion:</p> <p>Plaintiff, under bill filed, seeks to compel defendant to remove a certain fence which obstructs ingress and egress to his building, and to keep open perpetually an alley or way across said defendant’s premises to a width of twenty-five feet, extending from 11th Avenue, in the city of Altoona, to an alley in the rear, a distance of 120 feet. And, by Cross-bill filed, the defendant seeks to enjoin the plaintiff Ebert from obstructing, interfering or using in any way, a five foot way in said lot, and prays further that the rights therein, as well as to a party wall, be defined.</p> <p>FINDINGS OF FACT.</p> <p>1. The plaintiff, John W. Ebert, by deed dated 6th Sept., 1888, became the owner in fee simple of the S. W. part of the N. E. half of Lot No. 11, in the City of Altoona, Blair County, Pa., fronting 20 feet on 11th Avenue and extending back 120 feet to 11th Alley;</p> <p>2. That, at the time of filing the bill, the defendant was .the owner in fee of lots Nos. 9 and 10, fronting on said 11th Avenue, 100 and 120 feet in depth, together with and including 5 feet front of Lot No. 11, extending back to 11th Alley, subject, however, to a reservation appearing in Finding No. 3;</p> <p>3- Adolphus Roush, the predecessor in title of the lands owned by plaintiff, together with the additional 5 feet, or a total of 25 feet, by deed dated 21st August, 1869, conveyed to the Altoona Hall and Market Company, then owner of Lots Nos. 9 and 10, five feet, fronting on 11th Avenue, and extending back said width to 11th Alley, a distance of 120 feet, which said deed contains a reservation in haec verba: “It is, however,</p> <p>agreed that the said described piece of ground shall be used as an addition to the street or alley of the Altoona Market Company, and not for any other purpose, and that the same shall be used as an open thoroughfare at all times, between Virginia Street and the Alley Northwest.” Said Virginia Street being hereafter designated as 11th Avenne;</p> <p>4. That, at the time of the conveyance of the said five feet mentioned in the preceding paragraph or finding, there was an open way upon Lot No. 10, about 20 feet in width, through which the respective owners of Lots No. 11 and Nos. 9 and 10, had access by entrance at the sides to the buildings erected on the said several lots. Said alley or way being used by both parties as a means of ingress and egress and for loading and unloading articles of merchandise, etc., at the side entrance of their respective buildings, which said use continued to the date of the agreement, hereafter referred to in the Fifth Finding of Fact;</p> <p>5. On the 7th day of September, 1888, an article of agreement was made between Wm. W. Roush, defendant’s predecessor in title, and John W. Ebert, the present plaintiff, wherein it was agreed, inter alia, that said Roush, who was about to commence the erection of a brick building upon his said lot,” may build his wall a distance of two feet over the line of said Ebert, that is, so as to occupy two feet in width of said Ebert’s ground and extending back from Eleventh Avenue back a distance of about 59 feet, and that the remaining portion of said wall shall be built 18 inches beyond the said Ebert side of the line dividing said properties, extending 61 feet from the wall above mentioned, back to the Alley. It is further agreed that the said J. W. Ebert, his heirs and assigns, shall have the right and privilege at any time of joining to the said wall, and building into the same along the whole length or any part of the length thereof, any building he may desire or have occasion to erect on his said lot, and to use and enjoy the said wall or any part thereof, as a wall of the building or buildings so to be erected, and to sink the joists of such building or buildings into the wall aforesaid, provided, however, and on the express condition, that before proceeding to join any building to the said wall, the said Ebert shall pay to the said Roush the one-half part of the cost of the said wall, or so much thereof as shall be joined or used as aforesaid.</p> <p>It is further agreed that the said Roush shall provide and have, and leave open at all times, a passage way five (5) feet in width, in and through his said building, so as to give said Ebert equal privileges and passage way to and from each story of his said Ebert’s building, and extending back a distance of about fifty-seven (57) feet from Eleventh Avenue, to be at all times kept open for the use of both parties to this agreement and any occupant of the premises of either of the parties to this agreement or their assigns. In cause either party should make sale of their property, the intention of this agreement is that this hall-way shall remain open perpetually for the equal use of both properties, unless the owners mutually agree to make a change ;</p> <p>6. Pursuant to this agreement, said Roush constructed a brick wall on ¿the lines designated under said agreement of 7th September, 1888, that is to say, upon the two feet of Ebert’s land back a distance of 57 feet, and for the remaining distance upon the 18 inches of his own land, to which wall the plaintiff attached his building, having made compensation in accordance with the terms of the said agreement. And said Roush, under the provisions of said agreement, erected upon the said five foot passageway, a stairway, leading to and as a means of ingress and egress to his own building, which was erected upon and over said five foot alley-way; and also .for the use of plaintiff, to reach the second and third story of his said building;</p> <p>• 7- That said hall-way and stairs were used by both parties and their several and respective tenants and occupants, from the time oit-its construction in 1888 or 1889 to the 11th day of June, 1907, when the entire structure or building on the premises of defendant’s predecessor in title, together with a portion of plaintiff’s building, was destroyed by accidental fire;</p> <p>8. That subsequent to said fire, plaintiff- removed his share or half of the party wall, using the material thereof and re-erected his building wholly upon his own lands, the front portion extending back fifty-seven feet, being within the two feet allowed originally for said party wall, and the remaining portion was built up to the line of defendant’s lot;</p> <p>9. The defendant erected a high board fence, enclosing entirely his lot, including the five feet designated as an alley, passage or hallway.</p> <p>DISCUSSION.</p> <p>The acts of the parties fairly disclose the intention of the parties under the reservation of the deed of 1869, and the interpretation which was placed by them upon the agreement entered into on the 7th day of September, 1888. Both parties and their tenants enjoyed the several rights and privileges thereunder for a period of almost twenty years. There seems to have been no conflict of rights until the buildings were razed by a fire on the 14th June, 1907. After this fire, plaintiff called upon defendant’s agent and manager, making inquiry relative to rebuilding the premises, but, receiving no definite reply, he erected a three story building upon his own land, and served a notice upon defendant not to enclose the 25 feet used by the parties under the agreement of 1869. The plaintiff, however, disregarding said notice and relying upon his rights under the agreement as changed and modified by the agreement of 1888, enclosed his entire premises with a high board fence.</p> <p>Plaintiff now insists under his bill filed that the parties are restored to their original rights, as they existed under the agreement of 1869, while defendant urges that the easement created under the agreement of 1869 was extinguished by the subsequent agreement of 1888, and that the fire having effaced the party wall, the latter agreement has lost its force and is now void and of no effect. We cannot subscribe wholly to either of these contentions. The purpose of the parties under the agreements clearly was to economize space where lands were so valuable as in that portion of the city, each making contribution or surrender of rights and privileges in consideration of advantages to be mutually derived. This spirit of the agreement must be kept constantly in view in determining the rights of the parties, because, in the covenant, it was stipulated that the alley or passageway to the extent of five feet in width and fifty-seven feet in length, extending from 11th Avenue, was to “remain open perpetually, for the equal use of both properties, unless the owners mutually agree to make a change.” There is no evidence of any mutual agreement to make any change, and no act has been shown by the evidence to destroy or nullify its terms. While it may be conceded that the agreement of 1888 was substituted for that of 1869, it did not absolutely extinguish the easement, except in so far as it was in direct conflict therewith. The reservation of the right of way necessary for ingress and egress to the building on Lot No. 11, was kopt in view with an eye single to the right of such access. The plaintiff’s contention that by deed of 21st August, 1869, conveying the 5 foot alleyway with the limitation thereon, a servitude was imposed upon the other 20 feet of open roadway, fails of its purpose, when it appears that the grantee did not have title to said 20 feet until 15th October, 1869. But, a more potent reason is found in the fact that no grant is shown to have been made by the owner of that fee, and the fact that both parties mutually assented to the “five feet which has been heretofore used as a passageway.” Even if it be conceded that the grant was to “be used as an addition to the street or alley,” the owner of the easement may abandon it to relieve the servient estate of the encumbrance. 10 Am. & Eng. Enc. Law, (2nd Ed.) 434. If the owner of a dominant estate authorizes the owner of a servient estate to do upon the servient estate that which prevents the dominant estate from any longer enjoying the easement, the effect will be to extinguish it. Washburn on Easements & Servitudes, (4th Ed.) 726. While it clearly appears that the ancient way to the market house upon Lot Nos. 9 and 10, was to be abandoned as absolutely useless, and unnecessary to both the premises under the new conditions, and the rear end of the 5 feet passageway, had been rendered valueless, this in no way affected the 57 feet in the front, so essential to both premises for ingress and egress, which had been substituted and used for a long period by both parties. This was essential under the changed conditions for both parties, as the alimentary canal to the human body, or the door to the fire box in the locomotive. It seems clear that for the mutual advanages of each to the other, all ■rights, whether of servient or dominant tenement, in fee or by easement, was abrogated by the agreement of 1888, except as to the passageway 5x57 feet, which was to be and remain open perpetually for the use of both parties, unless the said parties mutually agree to a change. Neither party under the agreement, which provided only for a passageway or hallway, could call upon the other to erect a stairway, but the plaintiff has the undoubted right to the use of said plot or alleyway 5x57 feet as an entrance to his building, and may construct such means of access to his second and third story as he may deem expedient, but may not call upon defendant for contribution. The defendant is prohibited from interference with the use of the alleyway, for such was the servitude impressed upon -it by the parties under the deed, as modified by the agreement. Should the defendant rebuild or erect a new structure upon his lot, covering to the line prior to 1869, the alley or passageway of 57 feet may be utilized for a stairway and entrance, provided he constructs such stairway as will afford convenient access to the plaintiff’s building now erected upon his premises, restoring thereby to the plaintiff his full rights under the spirit, true meaning and intention of the parties to the agreement of 1888.</p> <p>There was no manifest intention of the plaintiff to abandon his right or easement in that portion of the passageway, as a means of access to his said premises, as argued under the authority of Stokoe v. Singers, 8 Ellis & Bl. 31. Conceding that he re-erected his building without regard to a present side entrance, such act would not show an abandonment in face of the notice wherein he asserts a right not only to that which he is actually entitled, but also to a greater right or privilege. The less would be included in the greater. The claim to the full 25 feet of the original alley or passageway from street to alley includes the right in the smaller or restricted entrance.</p> <p>We come then to the rights of the parties under the agreement and the laws of the Commonwealth relative to the division, or what is here referred to as the party wall. A party wall is a division wall erected between two adjoining estates belonging to different persons for use of both estates, or as defined by Washburn on Easements & Servitudes, (4th Ed.) 611, “a wall built at common expense and in which each have acquired a common right therein.” The wall in the case at bar was built on the lands of both parties, the front end or portion of the wall, on lands of plaintiff a distance of 59 feet, and the rear end of 61 feet upon lands of defendant’s predecessor in title, each making contribution and each together using the same in common until the buildings were destroyed by fire. What then is the status of the parties. We are cited to Section IV of the Act of April 10, 1849, P. L. 600, which provides that “In the conveyance of houses or buildings, the rights, to and compensation for the party wall built therewith, shall be taken to have passed to the purchaser, unless otherwise expressed, and the owner of the house for the time being shall have all the remedies in respect to such party wall as he might have in relation to the house to which it is attached.” This Act has been held to apply to any wall made such by statute, prescription or agreement, (Voight v. Wallace, 179 Pa. 520), and the purpose of the Act as stated in said cited case “was intended to prevent the inconvenience and injustice resulting from the title to the wall being in one person and the right to compensation outstanding and a secret claim in the hands of another.” In other words, the Act was to prevent a condition such as arose in Dannaker v. Riley, 14 Pa. 435, where the right of the first builder to compensation was considered a personal right and did not pass with the land to the purchaser. In Knight v. Beenken, 30 Pa. 372, it was held that the right or interest should pass by the conveyance and such interest should be in law what it was in fact, “an interest in the realty and not a mere personal right.”</p> <p>But, it is clear that this Act and the authorities cited relate to a party wall, in its technical sense, under the statutes, and not to the ordinary division or partition wall created for convenience between adjoining owners of property. Such rights, which are purely statutory, do not exist at common law. List v. Hornbrook, 2 W. Va. 340. A division wall may, however, be a party wall, not only by statute, but also by agreement. Ritter v. Sieger, 105 Pa. 400. We must then look to the agreement of 1888 between the parties and determine whether or not a party wall exists by contract, and what may be required of each thereunder. It is herein provided that whereas Roush is about to commence the erection of a brick building, and that he may build his wall a distance of two feet over the line of said Ebert back a distance of 59 feet, and the remaining portion of the said wall shall be built eighteen inches beyond the said Ebert side of the dividing line, a distance of 61 feet; and that Ebert shall, after compensation, sink the joist of his said building into said wall. But, it will appear under the agreement that while provision is made for the perpetual maintenance of the hallway, no such agreement is made in reference to the wall; nor is any provision made for its repair or re-construction in the event such repairs or rebuilding may become necessary. No right has run by prescription, and, in the absence of such contract, it is to be assumed that none was intended by the parties, for only that which is expressed or fairly implied under the agreement can prevail. The easement of support by means of a common party wall, which belongs to adjoining buildings cease with the state of things which created it, and, when the wall is accidentally destroyed, or is-so much decayed as to require a rebuilding from the foundation, neither may call upon the other for its restoration, unless it was so agreed at the time of its erection. Bonney v. Greenwood, 96 Me. 335 (52 Atl. Repr. 786). And, where one owning an easement in a wall, which forms a side of his building, after the destruction of the wall and building, erects a new building on a different foundation, he, thereby, abandons and extinguishes the easement. Duncan v. Rodecker, 90 Wis. 1 (62 N. W. Repr. 533).</p> <p>The buildings were destroyed by a fire, without cause by either party, and, where houses having a party wall are accidentally destroyed by fire, leaving the wall standing, the easement in the wall ceases, and either owner may dispose as he pleases of the part of his ground.” Hoffman v. Kuhn, 57 Miss. 746. There is no implied obligation which will enable either to maintain an action against the other for neglect or refusal to repair or reconstruct. Pierce v. Dyer, 109 Mass. 374. “When the wall has been destroyed by the elements, there being no agreement to build a second jvall, neither party is unden obligation to join the otLer in doing so, and the law would imply no such obligations.” Washburn on Easements & Servitudes, (4th Ed.) 614; Shirley v. Crabb, 37 N. E. Repr. 130. These authorities would seem to indicate that the division or partition wall is wholly eliminated from the controversy, as neither the agreement of 1888 provides for reconstruction or contribution therefor, nor is there any evidence tending to show since the destruction of the buildings that either party obligated himself to a reconstruction, or for contribution in the event of a rebuilding by the other party. The plaintiff, having rebuilt wholly upon his own land, the defendant must, if he desires to rebuild, likewise erect wholly upon his land within the lines as shown between the properties, prior to the deed of 1869-</p> <p>conclusions OF LAW.</p> <p>1. That the second or subsequent agreement of 7th September, 1888, did not annul or extinguish the grant in its entirety contained in the deed of 1869, but so modified, reformed and changed the same, to conform to the new conditions, restricting the area or size of the passageway for ingress and egress of both parties and their several occupants of the respective buildings;</p> <p>2. That defendant has no right or authority to enclose or maintain closed that portion of the plot conveyed by deed of date 21st August, 1869, which fronts on Eleventh Avenue five feet, and extends back a distance of fifty-seven feet, reserved for an alley, passageway or hallway. Nor has the plaintiff any easement rights to or interest in any other portion of defendant’s lands;</p> <p>3. That, by agreement of 7th September, 1888, for considerations therein named, the rights of the parties were merged, and, by the fire of 14th June, 1907, the division wall was obliterated, either party then having the right to decline to build, or, rebuilding a division wall, may build upon his own lands without reference to the former rights in the division wall erected under the said agreement of 1888.</p> <p>Error assigned was decree awarding injunction.</p>

<p>Road law — Stale roads — Liability of county — Change of grade.</p> <p>1. A county is not liable for damages resulting from a change of grade of a township road reconstructed by the state highway department under the Act of May 1,1905, P. L. 318, after the passage of the Act of June 8, 1907, P. L. 505.</p> <p>2. The fact that thé improvement had its inception, and the contract for the work was let under the Act of 1905, prior to the amendment of 1907, eliminating the right to recover for a change of grade, does not serve to help an owner of land claiming damages from the county for a change of grade, inasmuch as no liability attached or right vested until the actual physical change of grade occurred.</p>

<p>Appeal, No. 138, Oct. T., 1911, by defendant, from order of C. P. Lawrence Co., Sept. T., 1910, No. 203, discharging rule to strike off judgment in case of The Citizens’ National Bank of New Castle, Pa. v. E. E. Hileman, Chas. C. Hileman and A. C. Hileman.</p>