Volume 235 — Pennsylvania State Reports

Appeal, No. 149, Jan. T., 1912, by plaintiff from decree of C. P. No. 5, Phila. Co., March T., 1909, No..2096, on bill in equity in case of Mercantile Library Company of Philadelphia v. Fidelity Trust Company, Trustee for the Methodist Episcopal Orphanage under the will of Joseph M. Bennett, deceased. Bill in equity for an injunction.

<p>Appeal, No. 205, Jan. T., 1911, by defendant from judgment of C. P- No. 2, Phila. Co., June T., 1907, No. 3743, on verdict for plaintiff in case of Barbara A. Metzger v. Cramp & Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Wiltbank, J.</p> <p>At the trial it appeared that the defendants were the general contractors for the erection of a school building, and that Waldman & Co. were the sub-contractors for the painting of the building, and that they employed John M. Metzger, plaintiff’s husband. The accident happened on February 26, 1907, the deceased fell while attempting to proceed along a passageway which had been previously protected by a guard-rail, but which had been left unprotected at the time of the accident by the removal of the rail at the instance of the general contractor, without notice to the deceased or other workmen employed in the locality.</p> <p>The court charged in part as follows:</p> <p>Gentlemen of the Jury: On the afternoon of February 26, 1907, Mr. Metzger, the husband of the lady who is here as plaintiff, met with a fatal accident. He fell through a hole, to describe it colloquially, which was in a flooring on what appeal’s to have been the top story of the Manual Training School, at Broad and Jackson streets, in this city. Above that flooring was a ceiling, as I remember, the roof, but he was up there on that story at work. He had been sent up by some one who was authorized to give him the order, and according to the testimony (which, however, is entirely for you to believe or not to believe under your oaths), he had not been up there before. Judging from what Mr. Clark has said, it was the first time that he had been up there. It is for you to determine that. It is an important point, however, and therefore I leave it to you for careful consideration.</p> <p>That floor- was peculiarly constructed. It was not meant, according to the evidence, as a floor all over the space. It was meant largely as the support of glass which was to throw light below, and it was not intended that so much of it as was covered with the glass should be used as a floor. According to the testimony of Mr. Newkirk (and, of course, it is for you to say whether or not you believe that), the glass was not meant to hold a person. It was not meant that the space of that floor, as I have called it, should be used as a floor. It was meant to let the light through from above down to the room below.</p> <p>There was, however, constructed across that space a running way, as they call it, which was to be used by persons who wanted to move across the floor. That was two feet six inches wide, and it ran from the north wall or side of that building down to the south wall or side, and it was that which was put there for the use of persons who were going to that part of the structure and who -were obliged to move about up there.</p> <p>It appears that on the afternoon in question Mr. Metzger was lawfully going up there to do some painting, and when he emerged from the stairway which carried him from below up to that place, he emerged through a door apparently fronting directly upon that running way, so that desiring, as he did, to go across that space to get to the other side of the building, the other wall, there was the running way for him to use. Had he been accustomed to the place, had he worked there before, and if you find such to be the fact now, there was indicated to him the way he was to go to get across to the other side and do his work, but if he was unfamiliar with the place, and if that was the first time he had been there, it may be that you would find that the fact that the boardwalk was there was not sufficient notice to him that he must not go across the other way over these spaces. These spaces were none of them glazed as we understand now. The plan offered in evidence indicates that all but two of them shown on the plan were glazed, but it turns out that none of them were glazed, and they were covered with cheese cloth in a business precaution to protect the lower part of the building in a certain way, in order that certain varnishing or painting might be done there in an atmosphere that was proper for such work.</p> <p>The Messrs. Cramp put up that building and they constructed that flooring and passageway that I have described to you. Now the question for you to determine is whether they furnished in this manner a safe place, a reasonably safe place, for Mr. Metzger to work in, and in order to answer that question you will bear certain points in mind. It is conceded that they put the running way there thirty inches wide, and that had he used that running way the accident would not have happened. It is conceded that the spaces for light that I have described to you were then empty and covered with cheese cloth, and were not safe for use in walking. It is also conceded that they were none of them glazed but that they were all covered, as I have already said to you, and it would be your right to infer (but I leave it to you) that cheese cloth is a slim fabric, almost unsubstantial, and not capable of holding the weight of a human being. It is conceded, too, that Cramps had put a guard-rail along the running way on either side, so as to protect a person using that running way from going inadvertently over to either side falling over on the glass or into the holes.</p> <p>Now you have that condition of things. This guard you find was at the time of the accident down. It had been removed, and one of the witnesses has testified to you where he saw it lying after the accident. If you find these to be the facts, then you may find evidence of negligence in the defendants for which they should answer to the plaintiff in this case, unless in addition to these facts you find that Mr. Metzger was careless as he entered upon that work. He appears to have reached that floor way, to have entered upon this space immediately in front of the running way. If he had taken that running way and gone across on it the accident would not have happened. Was it his duty under those circumstances to select that running way and not to step into this open space through the cheese cloth that was there? It has been said to you by one of the witnesses that that cheese cloth was sagging, was not drawn taut, and that there was an indication around the edge of it of the framework there which it covered. Was it the duty of Mr. Metzger to look about him and to determine that it was not caution to avoid the running way and do as he did? If you find that to be so then you will find that there was provided by these defendants a reasonably safe passageway to go across, and that by reason of Mr. Metzger’s inadvertence or want of attention he hastily stepped on the wrong place, avoiding that passageway and so incurring the damage. That would be what in law is called contributory negligence, and it would preclude your finding a verdict against the defendants.</p> <p>Verdict and judgment for plaintiff for $3,500. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 210, Jan. T., 1911, by plaintiffs from decree of C. P. No. 1, Pbila. Co., March T., 1910, No. 1018, dismissing bill in equity in case of Michael J. Gibbons and Olive E. Gibbons, to the use of Sebastian A. Rudolph et al. v. Charles J. Gibbons et al.</p> <p>Bill in equity for partition. Before Kinsey, J.</p> <p>The facts are stated in the opinion of the Supreme Court and in Gibbons v. Connor, 220 Pa. 395. *</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Trusts and trustees — Resignation of trustee — Accounting.</p> <p>1. A trustee may relieve himself from the liabilities arising from a trust relation by submitting the administration of the trust to the jurisdiction of the court.</p> <p>2. Where an elderly trustee has acted as trustee for over twenty years, has filed an account, which has been duly audited, and the fund awarded to his two co-trustees, who are competent persons, such trustee has a right to withdraw from the trust, and his withdrawal cannot be objected to by certain of the cestuis que trustent on the ground that the withdrawing trustee is the president of a corporation whose stock is owned largely by the trust estate and by the trustee, that the trustee has the right to purchase the stock of the estate, and that there are pending for the consideration of the stockholders propositions either to liquidate the company or to sell all of its stock, or to sell most of its property.</p>

<p>Negligence — Master and servant — Night watchman — Unguarded hatchway — Safe place to worlc.</p> <p>In an action by a night watchman against his employer to recover damages for personal injuries resulting from falling down an unguarded hatchway at night, the case is for the jury, where the evidence, shows that plaintiff was injured on the second night of his employment; that the place where the accident occurred was in darkness, except for the light from a lantern on plaintiff’s arm; that the view of the open hatchway was obstructed by bundles of goods, and that according to plaintiff’s own evidence, although contradicted, his attention had not been called to the hatchway in question when he had been taken through the building at the beginning of his employment.</p>

<p>Appeal, No. 61, Jan. T., 1911, by defendant from judgment of C. P. No. 5, Phila. Co., June T., 1906, No. 5361, on verdict for plaintiff in case of Nathaniel L. Fountain v. Margaret A. Bigham.</p> <p>Assumpsit on a bond. Before Martin, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial, plaintiff was asked this question:</p> <p>“Q. Was it because you got the bond for security for your money that you did not prosecute him for forgery?”</p> <p>Objected to.</p> <p>Objection sustained.</p> <p>Exception. [1]</p> <p>“Q. In your negotiations with A. J. Dunn prior to the signing of this bond did you agree with him that if á bond were given as security for the payment of your money that you would drop the false pretense charge you then had against him and would not bring against him a charge of forgery which you then and there did?”</p> <p>Objected to.</p> <p>Objection sustained.</p> <p>Exception. [2]</p> <p>Defendant made this offer:</p> <p>“Mr. Owens: We will show that this conversation was communicated with Mrs. Bigham. I offer this testimony for the purpose of showing that these threats communicated to this witness were part of a system of threats and coercion brought to bear upon different members of the families of both defendants for the purpose of inducing the signing of this bond. These threats were all communicated to the parties who made the bond.</p> <p>“The Court: Were these communications made by the plaintiff?</p> <p>“Mr. Owens: Not direct but the parties to whom they were made communicated them directly.”</p> <p>Objected to.</p> <p>Objection sustained.</p> <p>Exception. [3]</p> <p>“Mr. Owens: I further offer to prove by this witness that the threats made against A. J. Dunn by Fountain were communicated to her and were the inducing cause of her signing this bond, and was the only consideration therefor.</p> <p>“Mr. Laws: I object for the reason.that it is incompetent, irrelevant and not evidence in this case.”</p> <p>Objection sustained.</p> <p>Exception. [4]</p> <p>The Court charged in part as follows:</p> <p>“Therefore if there was forgery committed by Dunn, and Mr. Fountain knew that forgery had been committed, and had evidence to prove it, but in consideration of this bond being given refrained from prosecuting Dunn for forgery, then the bond is void, and your verdict should be for defendant.</p> <p>“Does the evidence satisfy you that he was in possession of evidence to prove such a case? Put yourself in his position. He finds a check drawn to his order, endorsed with his name not written by him; underneath this is the name “A. J. Dunn” and the check bears evidence of having passed through Dunn’s bank account. In the Criminal Court, a defendant cannot be compelled to testify against himself, and if Dunn was called to the stand to explain how Fountain’s signature was placed on the back of' the check he could decline to incriminate himself. How could Fountain establish a case of forgery? His name appears on the check; he swore he did not sign it. Below is the name of Dunn who received the money. • If that should be held to establish a prima facie case sufficient to call upon Dunn to defend, if he denied that he signed the name of Fountain on the check that would probably end further inquiry from him, and if acquitted suit might follow claiming damages from Fountain for false arrest. It is not enough that it now, for the first time, has been learned by Fountain that Dunn caused some one to sign the name of Fountain, and that his conduct may have subjected him to a charge of forgery. If you are satisfied that the only crime of which Mr. Fountain was aware when the bond was executed was that of false pretense, he had a right to accept the bond and agree to the settlement of the case.”</p> <p>“Mr. Fountain seems to have left the matter in the hands of his lawyer, and testified that he was willing to do anything the law would allow him to do. Mr. Dunn swore that it was the distinct understanding that all the charges were to be withdrawn. Mr. Bley, who acted for Mr. Fountain, denied all knowledge of such a stipulation, and testified that all they undertook to do if the bond was signed, was when the case came up for trial to state in Court that Fountain had received the bond and endeavor if possible to have Dunn acquitted. Does the subsequent conduct of the parties support the evidence of Dunn, that the criminal proceedings were to be withdrawn? Dunn paid interest on this bond several times. The case was on the list for trial several times, at none of which does it appear that demand was made that it should be submitted; and finally it was tried and resulted in the acquittal of Dunn. You have heard the testimony relating to these defenses; that there were threats made to Mrs. Bigham calculated to operate upon the mind of a person of ordinary firmness and inspire her with great fear, and to avoid the disgrace she was induced to do that which she would not otherwise have done— sign the bond; that the bond was given as part of an agreement to suppress the crime of forgery; and that there was a failure of the consideration for the bond by reason of the fact that the criminal prosecution which had been commenced was not withdrawn, but allowed to proceed to trial.”</p> <p>Plaintiff presented these points:</p> <p>“1. There is no sufficient evidence in this case to set aside the judgment as to Margaret A. Bigham upon the ground that she was induced by threats, coercion or intimidation to sign the bond upon which the judgment was entered.”</p> <p>Answer: “So much of the point is affirmed. The balance is refused.” [18]</p> <p>“2. Margaret A. Bigham cannot set aside the judgment entered in this case upon the ground that Alphonsus J. Dunn was induced to sign the bond by threats, coercion or intimidation, because under the evidence she had knowledge of the alleged threats, coercion or intimidation before she signed the bond.”</p> <p>Answer: “That I affirm.” [19]</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Errors assigned amongst others were (1, 4) rulings on evidence quoting the bill of exceptions; (16, 18, 19) above instructions quoting them.</p>

<p>Partition — Husband and wife — Deed—Entireties.</p> <p>When land is held in common by a married woman and others, and they all join in a partition, and her share is conveyed to her and her husband, the law looks at the character of the transaction, rather than at the form of the conveyance, in order to define her interest, and considers the share as still hers, a divided share being substituted for an undivided one.</p>

<p>Appeal, No. 145, Jan. T., 1911, by plaintiff from order of C. P. No. 5, PMla. Co., June T., 1905, No. 693, refusing to take off non-suit in case of Louis Berstein v. Philadelphia Electric Company.</p> <p>Trespass to recover damages for personal injuries. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court entered a compulsory non-suit which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off non-suit.</p>

<p>Amendment — New cause of action — Statute of limitations — New parties — N egligence.</p> <p>1. A new cause of action cannot be introduced, nor new parties brought in, nor a new subject matter presented, nor a vital and material defect in the pleadings be corrected, after the statute of limitations has become a bar.</p> <p>2. Where an action for negligence has been brought against an executor of a decedent’s estate, an amendment will not be allowed after the cause of action has been barred by the statute, by making the person previously described as executor, defendant individually, as the sole devisee under the will of decedent. In such a case the fact that the party so introduced individually, happened to have been the legal representative of the estate originally complained against, is a matter of no consequence.</p>

<p>Appeal, No. 177, Jan. T., 1911, by plaintiffs from order of C. P. No. 5, Phila. Co., June T., 1908, No. 6717, refusing to take off non-suit in case of Frank N. MacDermott by Ms father and next friend William J. MacDermott and William J. MacDermott in Ms own name v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries. Before Ralston, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was refusal to take off non-suit.</p>

<p>Appeal, No. 184, Jan. T., 1911, by Jacob Guentboer, from decree of O. O. Phila. Co., Jan. T., 1910, No. 16, dismissing exceptions to adjudication in Estate of Joseph Guentboer deceased.</p> <p>Exceptions to adjudication.</p> <p>'The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Appeal, No. 209 Jan. T., 1911, by Joseph Deegan, from decree of O. C. Phila. Co., Jan. T., 1911, No. 402, dismissing exceptions to adjudication in Estate of Michael Deegan, deceased.</p> <p>Exceptions to adjudication.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

<p>Appeal No. 232, Jan. T., 1911, by plaintiff, from order of C. P. No. 4, Pbila. Co., June T., 1908, No. 1247, refusing to take off non-suit in case of Ernest P. Bowling and Lorena Ms wife v. William T. B. Roberts et al., trading as William T. B. Roberts & Son.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, J.</p> <p>The facts are stated in the opinion of tbe Supreme Court.</p> <p>Error assigned was refusal to take off non-suit.</p>

<p>Appeal, No. 223, Jan. T., 1911, by Horace Yardlev, from decree of O. C. Phila. Co., April T., 1911, No. 160, sustaining exceptions to adjudication in Estate of Henry C. Fox, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was decree sustaining exceptions to adjudication.</p>

<p>Mortgage — Bond and warrant — Judgment—Affidavit of ownership — Act of April 28, 1908, P. L. 261.</p> <p>1. Where a judgment is entered on a warrant of attorney accompanying a bond and mortgage after the mortgagor has parted with his title to the real estate, it is not necessary in issuing execution on the judgment to file an affidavit of ownership as provided by the Act of April 23, 1903, P. L. 261. The writ of execution in such a ease is not a writ within the intendment of the act, inasmuch as it is the entry of the judgment and not the execution which charges the land with the mortgage debt.</p> <p>2. A judgment entered upon a bond and warrant of attorney accompanying a mortgage creates a lien upon the mortgaged premises, no matter who may be the owner of them at the time of the entry of the judgment. The lien of such judgment relates back to the day the mortgage was recorded, and a sale upon it discharges the lien of the mortgage.</p>

<p>Equity — Findings of fact — Evidence—Review.</p> <p>On a bill in equity for an accounting of royalties alleged to be due under a license agreement where the issue turns upon an alleged oral agreement set up as a defense, a finding of the chancellor based upon sufficient evidence that no such oral agreement existed, will not be reversed by the appellate court in the absence of manifest error.</p>

<p>Appeal, No. 239, Jan. T., 1911, by plaintiff from order of C. P. No. 2, Pbila. Co., Sept. T., 1901, No. 552, refusing to take off non-suit in case of City of Philadelphia, to the use of John K. Dagney, Administrator de bonis non cum testamento annexo of the Estate of John Dagney, deceased v. A. M. Neill and Samuel M. Hyneman, Receiver of the Lincoln Savings & Trust Company.</p> <p>Assumpsit on a bond. Before Wiltbank, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order refusing to take off non-suit.</p>

Appeal, No. 310, Jan. T., 1911, by Claudius Buchanan Jewell et al., from decree of O. C. Phila. Co., Jan. T., 1911, No. 19, dismissing appeal from collateral tax appraisement in Estate of Leonard Jewell, deceased. Appeal from collateral tax appraisement. Before Lamorelle, J. The opinion of the Supreme Court states the case. Error assigned was decree dismissing the appeal.

<p>Municipalities — Municipal contract — Conspiracy—Competitive bidding — A ccounting — E quity.</p> <p>1. On a bill in equity by tax payers against a city, certain of its officers, and a municipal contractor, to declare a contract void because it was the product of an unlawful combination entered into with the view to prevent competitive bidding, and for an accounting from the contractor, the prayers of the bill cannot be granted where the court finds as a fact based on sufficient evidence, that there was no improper understanding among the bidders, and that the close approximation in the bids showed that there was competitive bidding in fact; and such prayers will be refused although the court finds as a fact that the contractor failed to comply strictly, or fully with the requirements of the contract, that this failure was known to the officers of the city, and that it was not expected or contemplated by such officers when the contract was awarded that there would be a strict and literal compliance by the successful bidder, whoever he might be, with all the requirements of the contract. The fact that there was such an understanding on the part of the city officers is not evidence of an unlawful combination to defeat competitive bidding.</p> <p>2. The complainants in such a bill have no standing to demand an accounting of the contractor of moneys which he received for work which he had not done. Such an accounting can be required from him only by the city itself.</p>

<p>Appeal, No. 160, Jan. T., 1911, by Edwin H. Vare, from decree of C. P. No. 4, Phila. Co., Dec. T., 1910, No. 807, on bill in equity in case of Howard S. Anders et al. v. City of Philadelphia, John E. Reyburn, Mayor, etc. et al. and Edwin H. Vare.</p> <p>Bill in equity. Before Willson, P. J.</p>

<p>Appeal, No. 308, Jan. T., 1911, by plaintiff from order of C. P. No. 5, Phila. Co., June T., 1911, No. 4650, discharging rule for judgment for want of a sufficient affidavit of defense in case of Leuten Brick Company v. James D. Killen.</p> <p>Assumpsit for goods sold and delivered.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order discharging rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 295, Jan. T., 1911, by Harriet W. Knight, from decree of O. C. Phila. Co., Jan. T., 1911, No. 308, dismissing exceptions to adjudication in Estate of Sarah J. Knight, deceased. Exceptions to adjudication.

Appeal, No. 175, Jan. T., 1911, by Emil' Wahl Manufacturing Company, from order of C. P. No. 1, Phila. Co., June T., 1909, No. 4388, quashing petition for appointment of viewers. Petition for appointment of viewers. In addition to the facts set forth in the opinion of the Supreme Court, and in the report of Pulaski Avenue, 33 Pa.

<p>Negligence — Municipalities—Caving in of street — Independent contractor.</p> <p>In an action against a city to recover damages for personal injuries resulting from the caving in of a street, where there is evidence that the street at the time of the accident was in the control of an independent contractor, it is proper for the court to submit to the jury the question whether the city or the contractor had failed in the performance of a duty to the plaintiff, and if the jury find for the city, their verdict and the judgment thereon will not be reversed by the appellate court.</p>

<p>Appeals — Judgment n. o. v. — Effect of reversal — New Trial.</p> <p>1. Where on an appeal from a judgment non obstante veredicto, the judgment is reversed, and the record remitted with directions to the court below to enter such judgment as law and right may require, the case then stands as though no proceedings in the court below had been taken after the rendering of the verdict, and it is for that court below to take such action as in its judgment, law and right require.</p> <p>2. If after such a reversal the court below orders a new trial unconditionally, the appellate court on an appeal from such order will assume the order was made in the exercise of a sound discretion, with a view to accomplish the ends of justice, and will not reverse it.</p>

Appeal, No. 133, Jan. T., 1911, by defendant from judgment of C. P. No. 1, June T., 1909, No. 438, on verdict for plaintiff in case of Howard W. Page, Trustee in Bankruptcy of Moore & Company, Incorporated v. William G. Moore. Trespass to recover for tbe alleged misappropriation of bonds belonging to tbe bankrupt’s estate.

<p>Nuisance — Encroachment on public highway — Equity—Injunction — Signs.</p> <p>Where one of the occupants of a commercial building sets up on a portion of the pavement of the public highway in front of the building a show case and signs, which attract such crowds as to obstruct an entrance used by another occupant of the building, and to cut ofE the view of such occupant’s show windows, the latter may maintain a bill in equity to compel the removal of the show case and the signs as a nuisance.</p>

<p>Wills — Construction—Remaindermen.</p> <p>1. Where a testator directs that in a certain event after the expiration of a particular interest, the estate shall go to his heirs and next of kin, or to the persons who would take under the intestate laws, he is to be understood as meaning the persons who would have taken at the time of his death, and not at the time appointed for their taking, unless a different intent is plainly manifested in his will.</p> <p>2. Where a testator leaves one-fourth of his residuary estate in a spendthrift trust for his son for life, and upon the son’s death without issue, to pay and distribute the principal to such persons as should be entitled as the testator’s next of kin, the testator intends his next of kin as of the date of his death and not his next of kin as of the date of the death of the life tenant.</p>

<p>Appeal, No. 276, Jan. T., 1911, by Farmers & Mechanics Trust Company, Committee of Theodore Mercer, from decree of Q. C. Chester Co., dismissing exceptions to widow’s preference in Estate of J. Edge Mercer.</p> <p>Exception to widow’s preference. Before Hemp-hill, P. J.</p> <p>Error assigned was in dismissing exception to widow’s preference.</p>

<p>Appeal No. 200, Oct. T., 1911, by defendants, from order of O. P. No. 4, Allegheny Co., Second Term, 1911, No. 554, making absolute rule for judgment for want of a sufficient affidavit of defense in. case of Commonwealth to use of Charles A. Gettman v. A. B. Baxter and Company, Inc., John Newell and Eugene P. Whitcomb.</p> <p>Assumpsit on a bond given to dissolve a foreign attachment.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was order making absolute ruie for judgment for want of a sufficient affidavit of defense. .</p>

<p>Appeal, No. 305, Jan. T., 1911, by plaintiff from order of C. P. No. 1, Phila. Co., Sept. T., 1910, No. 3410, dismissing exceptions to referee’s report in case of Bank of North America v. Penn Motor Car Company.</p> <p>Exceptions to report of Richard S. Hunter, Esq., referee.</p> <p>From the record it appeared that the action was one in replevin instituted against the Penn Motor Car Company, a few days before its bankruptcy to obtain possession of eighteen motor cars of the alleged aggregate value of $23,080. Of these eleven were taken by the sheriff upon the writ and delivered to the appellant. One was claimed by Oscar Isenberg et al., trading as Roman Automobile Company, who gave security and retained it. The others were returned as eloigned. The National Security Bank and the Tradesmen’s Trust Company then intervened, each claiming title to some of the motor cars which had been delivered to the appellant. Subsequently, William S. Miller intervened first as receiver, and then as trustee in bankruptcy of the Penn Motor Car Company, claiming title to all the motor cars which had been replevied by the appellant.</p> <p>By agreement the case was referred to Richard S. Hunter, Esq., as referee, who took testimony and filed his report, finding that as against all the intervenors except William S. Miller, as receiver and trustee in bankruptcy of the Penn Motor Car Company, the appellant was entitled to possession of the cars in question; but that the title of the trustee in bankruptcy was superior to that of the appellant. He also found the value of the cars delivered to the appellant to be $10,368.51. Upon exception he reduced this valuation to $9,978.51; but refused the appellant any further relief. The court below, upon the argument on the exceptions, affirmed the referee’s report without opinion.</p> <p>Error assigned was order dismissing the exceptions.</p>

<p>Promissory notes — Agreement as to extension — Affidavit of defense — Banks and banking.</p> <p>1. In an action upon a promissory note, an affidavit of defense is insufficient which sets up a violation by the plaintiff, a trust company, of an agreement to renew the note, without any averment that the plaintiff’s executive officer, who was alleged to have made the agreement had any authority to do so.</p> <p>2. The discounting of commercial paper is a function of the directors of the bank and cannot be delegated to a single officer.</p> <p>3. In an action by a trust company on a promissory note, which the company had discounted, and the proceeds of which discount the defendant had received, the defendant cannot set up as a defense that the plaintiff had exceeded its corporate powers in doing a banking business, and discounting the note in suit.</p> <p>4. In an action on a promissory note where the affidavit of defense sets up that the defendant was not liable for protest fees as there was no endorser on the note, and the plaintiff then withdraws this item, the matter is de minimis the court may enter judgment against the defendant, if it finds that the affidavit of defense is otherwise insufficient.</p>

<p>Appeal, No. 314, Jan. T., 1911, by Henry J. Stager and Henry J. Stager, Trustee, from order of C. P. Montgomery Co., June T., 1910, No. 32, dismissing exceptions to auditor’s report In the Matter of the Audit of the Account of the Centennial & Memorial Association of Valley Forge.</p> <p>Exceptions to report of W. F. Dannehower, Esq., auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order dismissing exceptions to auditor’s report.</p>

<p>Contract — Attorney and client — Incorporation of borough— Signers of petition — Affidavits of Defense.</p> <p>An attorney-at-law cannot obtain judgment for want of a sufficient affidavit of defense in an action against the signers of a petition to incorporate a borough, for his professional services in procuring the incorporation, where he does not aver in his statement of claim that the person who brought him the petition was authorized by the defendants to obtain the plaintiff’s services or employ him as an attorney, or aver that the defendants in any way recognized him as acting for them as an attorney in the matter. The mere fact that the defendants were petitioners for the incorporation is not sufficient to impose upon them liability for the attorney’s fees in securing the charter.</p>

<p>Appeal, No. 2, May T., 1912, by plaintiffs from order of C. P. Dauphin Co., March T., 1906, No. 161, granting a new trial in case of James Duffy et al. v. York Haven Water & Power Company.</p> <p>Motion for new trial.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in granting a new trial.</p>

Appeal, No. 321, Jan. T., 1911, by defendant from judgment of C. P. No. 5, Phila. Co., June T., 1904, No. 2505, on verdict for plaintiff in case of Sallie E. Mills v. Moses Brandes, trading as Brandes & Bro. Trespass to recover damages for personal injuries. Before Martin, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for ¡§2,500. Defendant appealed.

Appeal, No. 84, Jan. T., 1911, by defendants from order of C. P. No. 2, Phila. Co., June T., 1910, No. 4016, refusing to set aside sheriff’s sale in ease of Franklin L. Lyle v. William Lynn Armstrong, Real Owner, and Amos R. Scott, Mortgagor. Rule to set aside sheriff’s sale. The facts are stated in the opinion of the Supreme Court. Error assigned was order refusing to set aside sale.

Appeal, No. 161, Jan. T., 1911, by James I. Comly, from decree of C. P. No. 2, Phila. Co., June T., 1910, No. 4016, awarding writ of possession in case of Franklin L. Lyle v. William Lynn Armstrong, Real Owner and Amos R. Scott, Mortgagor. Petition for writ of possession. The facts are stated in the opinion of the Supreme Court. Errors assigned were as follows: 1.

Appeal, No. 178, Oct. T., 1911, by plaintiff from judgment of C. P. No. 1, Allegheny Co., March T., 1907, No. 396, for defendant non obstante veredicto in case of H. W. Joynes to use of A. T. James v. Pennsylvania Railroad Company. Trespass to recover damages for failure to deliver potatoes. Before Macfarlane, J. The facts are stated in the opinion of the Supreme Court. Verdict for plaintiff for $23,654.03.

Appeal, No. 67, Jan. T., 1911, by defendant from judgment of C. P. No. 2, PMla.

Appeal No. 92, Jan. T., 1911, by plaintiff from order of C. P. No. 2, Phila. Co., Dec. T., 1910, No. 2162, discharging rule for judgment for want of a sufficient affidavit of defense in case of Sarah A. Beck v. George Schekter and Meyer Bernstein. Assumpsit to recover charge on land. Rule for judgment for want of a sufficient affidavit of defense. The opinion of the Supreme Court states the case.

Appeal, No. 234, Jan. T., 1912, by plaintiff from order of C. P. No. 4, Pbila. Co., June T., 1908, No. 6085, refusing to take off non-suit in case of Nathan W. Shive v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. Before Carr, J. The circumstances of the accident are stated in the opinion of the Supreme Court. At the trial the court entered a compulsory non-suit which it subsequently refused to take off.

<p>Appeal, No. 86, Jan. T., 1911, by defendants from decree of C. P. No. 2, Pkila. Co., Sept. T., 1910, No. 3899, on bill in equity in case of Theodore J. Lewis, S. Weir Mitchell, Wm. M. Longstreth, Arthur H. Lea, Andrew B. Wright, Charles F. Jenkins, Barton C. Hirst, Cyrus D. Foss, Jr., Newbold Etting, Logan M. Bullitt and Charles C. Binney v. City of Philadelphia; John E. Beyburn, Mayor of the City of Philadelphia; John M. Walton, Controller of the City of Philadelphia; Murrell Dobbins, Treasurer of the City of Philadelphia; George B. Stearns, Director of the Department of Public Works of the City of Philadelphia ; Wm. B. Benson, Chief of the Bureau of Highways of the City of Philadelphia; Filbert Paving and Construction Company, a Corporation Organized Under the Laws of the State of Delaware; Bichard Y. Filbert and B. F. Richardson. Before Fell, C. J., Beown, Mesteezat, Elkin and Stbwabt, JJ.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was decree awarding injunction.</p>

Appeal, No. 13, Jan. T., 1911, by plaintiffs from order of C. P. No. 3, Pbila. Co., June T., 1905, No. 2168, refusing to take off non-suit in case of Morris A. Kaufmann, et al., Executors, Etc. v. City of Philadelphia. Appeal from award of jury of view.

<p>Appeal, No. 265, Jan. T., 1911, by plaintiffs from decree of C. P. No. 1, Phila. Co., Dec. T., 1910, No. 3411, dismissing bill in equity in case of Frank P. Martin et al. v. The Provident Life & Trust Company, Trustee, under the will of Michael McCahey, deceased, et al.</p> <p>Bill in equity for partition of the real estate of which Michael McCahey died seized.</p> <p>■ The -bill recited that Michael McCahey had died May 2nd, 1894, leaving a last will wherein he had devised and bequeathed his entire estate, real, personal and mixed, to The Provident Life and Trust Company of Philadelphia, upon the following trust: “To invest and keep invested the same in good and sufficient securities, to collect and receive the rents, issues, income, dividend and profits thereof, to manage and control the real estate thereof and keep the same in proper repair, and after paying out of the said income, the costs, charges, taxes and expenses of managing the said estate then to pay over one-third of the net income thereof unto my wife Maria McCahey for her life and the remaining twó-thirds of said net income in equal shares unto my children Rosey McCahey (wife of James McCahey), Mary McCahey, Annie McCausland (wife of Thomas McCausland), Thomas McCahey and Maggie Shallow (wife of James Shallow) for their respective lives, the shares of my said daughters to be for their sole and separate use, benefit and behoof, and when and as my said children shall respectively die, I order and direct my said trustees to pay over and divide the share or shares of my estate on which said decedent or decedents shall have been receiving the income as aforesaid unto and among such person or persons as said decedent or decedents shall by his, her or their last will or wills direct, limit and appoint, and in default of such direction, limitation or appointment then to pay over unto and divide said share or shares of my said estate among such person or persons as would have been entitled thereto under the intestate laws of Pennsylvania if said decedent or decedents had died intestate seized and possessed thereof absolutely and in fee. And upon the death of my said wife, I order and direct that my said trustees shall hold and dispose of the one-third part of the principal or capital of my said estate on which my said wife had been receiving the income and apply the income and principal thereof upon the uses and trusts herein declared concerning the remaining two-thirds of my said estate directed to be held as hereinabove set forth for the use and benefit of my children as aforesaid.” That by a subsequent clause in the will the testator directed as follows: "I authorize and empower my trustees and executors herein named, at any time in their discretion, to sell at public or private sale, for such price or prices and upon such terms as they may deem proper, all or any part of my real estate not hereinabove specially designated, and to make, execute and deliver to the purchaser or purchasers thereof good and sufficient deeds of conveyance therefor, freed and discharged of all trusts and without liability,” &c. By a later clause he directs that “During the continuance of the trusts herein created, I authorize and empower my said trustees to have all repairs to my said real estate made under the supervision of my son-in-law James McCahey, without liability,” &c.</p> <p>Maria McCahey, widow of testator died 1 January, 1897, all of the children named in the will surviving. Subsequently in 1906 Thomas McCahey, one of the children named in the will, died, having by his last will directed that his interest in the estate of his father be equally divided between his wife and his four surviving children. One of the children, Margaret E. Willis, wife of Louis E. Willis, subsequently assigned and conveyed all her interest in the estate of Michael McCahey to Marion A. Martin, who, with her husband joining, filed the present bill to enforce partition of the real estate.</p> <p>The court dismissed the bill in the following opinion: “At the argument it was agreed by counsel for the parties that the exceptions filed by plaintiff to the answer and amended answer of the defendant might be treated as a demurrer to answer, and that the matter should be disposed of as on bill, answer and demurrer, and we have therefore so considered it. We are of the opinion that the testator by his will did not intend to vest in any of the beneficiaries named therein the title to any portion of his real estate; but that the title thereto was vested in the trustee and mingled with personal estate for the purpose of raising a fund to be administered, paid out and distributed among the beneficiaries by the trustee in the manner indicated by the will; and that there was an equitable conversion of the real estate for the purposes of the trust. The plaintiffs have a complete and adequate remedy at law which may be invoked at any time for the purpose of effecting a distribution of the estate by the trustee, in accordance with the terms of the will. The demurrer of the plaintiffs is therefore overruled and the bill is dismissed at the cost of the plaintiffs.” From this decree the plaintiffs have appealed.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Wills — Construction—Vested and contingent remainders.</p> <p>After a gift of the entire income of his estate to his wife for life testator gave one-third of the residue of his estate to his son absolutely, and the remaining two-thirds to his executors in trust to pay the net income thereof equally to his two daughters M. and H., for their respective lives, and from and after their respective deaths to assign their respective shares of the residuary estate to and among their respective child or children, or their issue, for such share interest or estate, as the respective daughters might appoint by will, and in default of such appointment to assign the shares of said daughters to their respective child or children equally. “But if my said daughters shall die without leaving any child or children living at the time of their respective decease, or, if leaving such then living, all should die during minority without leaving issue to survive them, then the share of such so respectively dying shall accrue to and belong to my other children mentioned in this my will and to the issue of any of them being then deceased, such issue to take equally the share their parent would have taken if living, the share coming to any daughter to be held by my executors upon the trusts above mentioned.” Testator’s widow died, and thereafter the son died without issue, but leaving a widow. By his will he bequeathed all of his property to his sister H. The widow elected to take against his will. Subsequently testator’s daughter M. died intestate, unmarried and without issue. Held, (1) that the testator’s son’s estate had a vested interest in one-half of the trust estate held for M. for life; (2) that one-half of this one-half should be awarded to the son’s widow, and the other one-half thereof to H. under the son’s will.</p>

<p>Mortgage — Purchase of land “under and subject” to mortgage— Indemnity — Act of June 12, 1878, P. L. 205.</p> <p>1. The words “under and subject” in a conveyance import that the grantee takes the land subject to an encumbrance, the amount of which has been deducted from the agreed price, and the covenant to be inferred from it is that of indemnity for the protection of the grantor. In such a case the grantor cannot recover on the covenant from the grantee, unless he proves actual loss.</p> <p>2. Where a grantee of land under and subject to a mortgage made by his grantor defaults, and the land is sold by the sheriff in foreclosure proceedings for an amount insufficient to pay the mortgage, and thereafter a judgment is obtained against the administrator of the mortgagor’s estate for the deficiency, the administrator cannot recover from the grantee of the land on the implied covenant of indemnity, without showing that he had paid the judgment or had sustained some loss by reason thereof.</p>

<p>Negligence — Master and servant — Assumption of rislc.</p> <p>1. In an action by an employee against his employer to recover damages for an injury to his hand sustained while he was working at a machine in defendant’s factory, a non-suit is properly entered where the evidence shows that the plaintiff was thirty-seven years old, that he had worked at the machine for fifteen months, that at the time of the accident he was instructing an apprentice in its use; that the machine was of the kind in ordinary use; that it was in proper condition; and that any danger in its use was exceedingly remote and was fully understood by plaintiff.</p> <p>2. In such a case the risk to which the plaintiff was exposed was incident to the business and was obvious, and consequently assumed by him.</p>

<p>Appeal, No. 199, Jan. T., 1911, by defendants from decree of C. P. No. 3, Phila. Co., Sept. T., 1909, No. 773, on bill in equity in case of Henry Kayiey, President, Patrick Dugan, Treasurer, on behalf of themselves and the other Officers and Members of Division No. 3 of the Ancient Order of Hibernians v. Anthony MeCourt et al., Officers and Members of an Alleged Division No. 3, Ancient Order of Hibernians, Beneficial Savings Fund Society and The Sterling Building and Loan Association.</p> <p>Bill in equity for an injunction.</p> <p>Ferguson, J., found the facts and law as follows:</p> <p>FINDINGS OF FACTS.</p> <p>1. The Ancient Order of Hibernians is a beneficial order duly incorporated under the laws of the State of Pennsylvania.</p> <p>2. Division No. 3, of the Ancient Order of Hibernians, a subordinate branch or division of the incorporated body, was organized by the authority of the main body in the year 1872.</p> <p>3. From the year 1872 the said Division No. 3 has been known and recognized by the parent or main body and at the time of the filing of the bill in this case there had accumulated from dues, fines, etc., contributed by its members, the sum of $1066, then on deposit in the Beneficial Savings Fund Society, and the additional sum of $468 in the Sterling Building & Loan Association, represented by shares of stock. The sum on deposit and the shares of stock were in the name of the Division No. 8, Ancient Order of Hibernians, and by the rules of the division could be withdrawn only upon resolution of the division authorizing the president or secretary so to do.</p> <p>4. The purpose for which the Ancient Order of Hibernians was organized as expressed in its Constitution and By-Laws was: “To promote friendship, unity and Christian charity among its members by raising and supporting a fund of money for maintaining the aged, sick, blind and infirm members; for the payment of funeral benefits; for the advancement of the principles of Irish nationality; for the legitimate expenses of the order and for no other purpose whatsoever.”</p> <p>5. In July, 1909, the membership of Division No. 3, Ancient Order of Hibernians, numbered about one hundred and seventeen.</p> <p>6. On July 11, 1909, the regular stated meeting was held at St. Michael’s Hall, Germantown avenue and Jefferson street, Philadelphia. About thirty-eight members were present. The then president, Anthony McCourt, one of the defendants, presided. Thomas Cassidy, the then recording secretary; Joseph McGuckin, the then vice-president; Joseph Woods, the then financial secretary, and Michael McNamee, Jr., the then acting treasurer, were present.</p> <p>7. At the meeting a resolution was offered by a member named Burns, to the effect that the division sever its connection with the Ancient Order of Hibernians in America and affiliate with the Ancient Order of Hibernians, Board of Erin in Ireland. The motion was debated and the minutes show that the motion was carried unanimously. In point of fact, the motion was not carried unanimously, for Henry Kayley, one of the complainants, voted in the negative. There had been offered previously a motion condemning certain conduct , on the part of the national president, which was adopted by a vote of 31 to 7, and although the vote on the motion to secede was called for and one man voted in the negative, the actual count of the vote was not announced. After further business the meeting adjourned.</p> <p>8. On August 8,1909, another meeting was held, 40 to 45 members being present, at which time a dispute arose over the approval of the minutes of the meeting of July 11th. The minutes of the August meeting show that Kayley moved to lay the minutes on the table, which was lost by a vote of one to twenty-nine. In point of fact, the actual motion that was put was this: “All those in favor of reading the minutes to suit Kayley” which was apparently voted down. There was much confusion, in the course of which Kayley was fined. Subsequently a motion was passed to adjourn the meeting sine die, after which the president requested all present to take the obligation as members of the Board of Erin.</p> <p>9. After the meeting adjourned as a division of the Ancient Order of Hibernians in America, the president and most of those present adjourned to an ante-room and organized as a division of the Board of Erin. Kayley, on behalf of himself and several other members who refused to leave the room, demanded the money, books and papers of the organization which were refused.</p> <p>10. At the time of the meetings in July and August, 1909, Kayley was a member and in good standing.</p> <p>11. On August 21, 1909, Kayley and thirteen other members who declined to join the division as a member of the Board of Erin, reorganized by the election of the following officers: President, Henry Kayley; Vice-President, James Bigley; Recording Secretary, Thomas Bros-man; Financial Secretary, Hugh Doyle; Treasurer, Patrick Dugan; Stewards, Patrick Hughes, Michael Daley; Trustees, Thomas Murphy, James Davis and John Carroll. The division as thus reorganized was recognized by the State President of the Ancient Order of Hibernians in America as Division No. 3 of the order.</p> <p>12. The Board of Erin is an organization having its original foundation in Great Britain and Ireland, with some divisions in America. It has no organic connection with the Ancient Order of Hibernians in America, but a system of comity and fraternity has for years existed between the two orders, as a result of which members sometimes were enabled to transfer their allegiance from one body to the other without the formality required of new members not affiliated with either body, but this facility of securing entrance to membership was not obligatory, but was optional with the members of the different divisions.</p> <p>From these facts the following conclusions of law are made:</p> <p>CONCLUSIONS OF LAW.</p> <p>1. The majority of the members of the Division No. 3, Ancient Order of Hibernians in America, were without power to remove the organization bodily from one order into another without the unanimous consent of the members. From the facts as found it follows that when a majority of the members present at the meetings in July and August, 1909, decided to secede and to join the Board of Erin their act was the act of individuals and not of the division itself.</p> <p>2. The members of the Division No. 3 who refused to secede and who perfected an organization after the secession, which was recognized by the State body, continued and maintained the existence of the division.</p> <p>3. The act of secession was not an act of dissolution of Division No. 3, but was a voluntary withdrawal from its membership. These members who remained and preserved the organization are entitled to the possession of the books, papers and other property of the organization and the seceding members are ehtitled to no part or portion thereof.</p> <p>4. An injunction should issue restraining the defendants from withdrawing or transferring or in any wise interfering with the funds of the division now on deposit in the Beneficial Savings Fund Society or to its credit in the Sterling Building and Loan Association.</p> <p>5. That an injunction should issue restraining the Beneficial Savings Fund Society and the Sterling Building and Loan Association from paying any of the funds in their hands to the credit of Division No. 3, Ancient Order of Hibernians in America, to the defendants, or to any one else other than the properly constituted and authorized officers of Division No. 3, Ancient Order of Hibernians in America, as represented by the complainants herein.</p> <p>Error assigned was decree awarding injunction.</p>

<p>Negligence — Railroads—Master and servant — Bralceman—Falling in trestle — Contributory negligence — Question for jv/ry.</p> <p>1. In an action by a brakeman against a railroad company, his employer, to recover for personal injuries, tbe case is for the jury, and a verdict and judgment for plaintiff will be sustained, where tbe evidence tends to show that immediately before the accident tbe plaintiff in tbe performance of bis duty descended from tbe train as it stopped, and after tbe train bad started again, ran along a cinder track to make tbe mount, when be tripped and fell on an unplanked trestle which began where tbe cinder path ended, and tbe character of which was unknown to plaintiff.</p> <p>2. In such a case the trial judge could not rule as a matter of law that tbe unplanked condition of tbe trestle was an assumed risk of tbe plaintiff’s employment, where the evidence shows that tbe unplanked trestle was, “not only unusual,” but that its condition made it “more dangerous in itself than tbe ordinary one” so situated.</p> <p>3. While 'an employee is deemed to assume tbe risks ordinarily and reasonably connected with bis employment, and is presumed to have notice of those which are obvious, tbe employer is fixed with tbe duty to maintain instruments, appliances and conditions which do not expose his employee to dangers not ordinarily or reasonably incident to the employment; the latter has the right to presume that his employer has performed this duty, and he does not assume risks growing out of unusually dangerous conditions not to be reasonably anticipated by him.</p> <p>4. Where the measure of duty is a standard of ordinary and reasonable care, the degree' of which varies according to the circumstances, and where the facts are disputed or there is any reasonable doubt as to the inferences to be drawn from them, the issues must be submitted to the jury.</p>

<p>Insurance — Life insurance — Mutual policy — Premium notes— Sharing in Profits — Equity.</p> <p>1. Where a mutual life insurance policy containing a clause for sharing in surplus profits provides for punctual payment of premiums in cash, but does not forbid the taking of premium notes by the company, and does provide that “all outside liability under this policy shall be first paid off before paid up insurance shall be issued in its place,” the holder of the policy cannot object that the company accepted premium notes, on other policies of the same class, where it appears that such notes were always taken before the premiums were due, and there is no evidence of any default in payment on them.</p> <p>2. Where the holder of such a policy files a bill in equity for specific performance of his contract of insurance, and for an accounting of apportioned surplus or profits, the plaintiff cannot complain that his share of the surplus was reduced by the acceptance by the company of premium notes, before premiums were due, inasmuch, as, even if the acceptance of the premium notes was not in accordance with the express terms of the contract, it would be impossible to ascertain the damage, if any, which plaintiff suffered because of such violation, for there would be no way of determining which, or how 'many, of those who gave premium notes would have managed to pay the premium in cash, if the company had refused to accept the notes.</p> <p>3. Where a mutual insurance policy provides that “the surplus derived from all policies on this plan which shall not be in force by payment of premiums as above specified, at the date of the completion of their respective accumulated surplus periods, shall be apportioned equitably among such policies only as shall complete” the period, and a court of equity on a bill for specific performance of the contract and for an accounting finds as a fact upon sufficient evidence that the officers of the company properly and without fraud apportioned the surplus, the appellate court will not at the instance of a policyholder reverse such finding where there is sufficient evidence to justify the finding.</p> <p>4. A mutual insurance company cannot discriminate among its policy holders, and any agreement which would result in the payment of larger proportionate dividends to one of its policy holders than to others in the same class would be illegal and void.</p> <p>5. Statements made by the assistant secretary of a mutual life insurance company to a proposed insurer to the effect that a certain amount would be realized to the insured upon a distribution of surplus profits at the expiration of the payments on the policy, are not binding upon the company, especially where it appears that the statements were based on past experience with some basis of fact, and that the statements although rose-colored were not in fact fraudulent.</p> <p>Equity — Accounting—Interrogatories.</p> <p>6. A decree in equity will not be reversed because of the refusal of the court below to compel a defendant insurance company to answer certain interrogatories in advance of the trial, where it appears that the subject matter of the interrogatories was brought out at the trial by the examination of the defendant’s officers, and that certain of the interrogatories were of such a nature that an answer to them would have been equivalent to the rendering of an account in advance of a decree awarding it.</p> <p>Equity — Insurance companies — Accounting—Bight of policy holders.</p> <p>7. In a proper case a policy holder in a mutual insurance company has a right to an accounting' of the moneys of the company to which he is entitled under his contract, and he is not to be dismissed with the statement that he is bound by the actions of the trustees of the company; but he will not be awarded a decree where the court finds as a fact that the trustees have acted in good faith and in accordance with the contract and the law.</p>

<p>Appeal, No. 173, Jan. T., 1911, by plaintiffs from order of C. P. No. 3, Phila. Co., March T., 1907, No. 4689, refusing to take off non-suit in case of Margaret M. Devine by her father and next friend, Patrick Devine, and Patrick Devine v. John F. Simons et al, trading as Simons Bros. & Company.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The facts relating to the accident are stated in the opinion of the Supreme Court. It further appeared that at the time of the accident Margret M. Devine was fourteen years of age.</p> <p>Error assigned was order refusing to take off non-suit.</p>

<p>Landlord and tenant — Lease—Principal and agent — Notice of termination — Attornment—Amendment—Parties.</p> <p>1. Where an agent for a brother and two sisters executes a lease in his own name, and subsequently the tenant attorns to the brother acting for himself and his sisters, a notice to quit given by the agent, but not acted upon either by the tenant or the owners of the property does not terminate the tenancy.</p> <p>2. Where in such a case the brother causes a judgment to be entered up in his own name against the tenant under a warrant of attorney in the lease, the record may be subsequently amended by substituting the name of the agent as plaintiff to the use of the three owners.</p> <p>3. A modification of a contract of letting in the single particular of the amount of rent to be paid may be made without varying the other conditions contained in the lease; such a change is not of necessity, either in law or in fact, an abandonment by either party of any of his other rights under the contract as drawn.</p> <p>4. The law does not regard the fractions of a day. A lease for a year beginning on the first day of April expires on the thirty first day of the following March.</p> <p>Judgment — Opening judgment — Practice, O. P.</p> <p>5. On a rule to open judgment it is good practice for the parties to submit requests for definite findings of fact and conclusions of law, or for the court to state such findings and conclusions of its own accord. .</p>

<p>Principal and agent — Personal liability of agent — Unregistered foreign corporation — Building contract.</p> <p>1. Where a citizen of this state signs a building contract “as agent for” a named company with knowledge that such company is an unregistered foreign corporation without authority to do business in this state, and the contractor has no such knowledge, the agent will be personally liable on the contract.</p> <p>Contract — Building contract — Extra work — Architect.</p> <p>2. Where a building contract provides that no alterations shall be made except upon the written order of the architects with the amount to be paid stated, and the architects in giving a written order for extra work, instead of stating the amount to be paid for it, merely direct the contractor “to keep an account of the cost of it,” the owner will be held to have waived the provision of the contract, if it appears that after the architects had approved the contractor’s bill, which included the extras, and given him a final certificate, the owner paid large sums on account thereof without objection.</p>

<p>Appeals, No. 196 and 197, Jan. T., 1911, by defendant from judgment of C. P. No. 1, Pkila. Co., June T., 1906, No. 1470, on verdict for plaintiffs-in case of Jennie Irene Ott, by her father and next friend, George Ott, and George Ott v. City of Philadelphia.</p> <p>Trespass to recover damages for personal injuries to a little girl seven years old. Before Magill, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for Jennie Irene Ott for $2,000, and for George Ott for $1,000. Defendant appealed.</p> <p>Error assigned, was the portion of the charge quoted at length in the opinion of the Supreme Court.</p>

<p>Appeal, No. 3, Jan. T., 1911, by defendant from order of C. P. No. 4, Pbila. Co., March T., 1910, No. 8, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Edward W. Norris v. The Breakwater Company.</p> <p>Assumpsit to recover balance of fees alleged to be due under written contract dated October 3, 1908. The contract was annexed to the statement of claim and contained the following recital:</p> <p>Whereas the first party and the company have adjusted and settled all their differences, disputes and controversies and agreed that the company is indebted to the first party in the sum of five thousand and fifty-three and 50-100 ($5,053.50) dollars for services rendered as its attorney to the date hereof, and the company has agreed to retain and employ the first party as its attorney and counsellor-at-law to represent it in such matters as may be entrusted to the first party by its board of directors from the day and date hereof until the 30th day of April, 1910, for the compensation hereinafter provided, and in consideration of the promises of the first party hereinafter contained, to accept the said retainer and employment and not to undertake or accept any employment or retainer of any kind inimical or hostile to its interests, except as hereinafter specifically provided.</p> <p>The affidavit of defense after giving a detailed history of the Sea Coast Construction Company and the Breakwater Construction and Engineering Company, and an account of their dealings with the plaintiff continued as follows:</p> <p>By reason of the proceedings in the United States District Court for the Southern District of New York, the claims of the said Edward W. Norris and John F. Donovan, became uncollectible, but immediately after the incorporation of the defendant, The Breakwater Company, the plaintiff, the said Edward W. Norris, sent a bill to the defendant for professional services rendered to The Breakwater Construction and Engineering Company for the sum of |8,286.25, claiming it as a balance due under the agreement of February 24, 1908, which the said Edward W. Norris had with The Breakwater Construction and Engineering Company. The defendant refused to pay the said bill of the said Edward W. Norris, and thereupon the said Edward W. Norris and John F. Donovan, procured and caused proceedings in involuntary bankruptcy to be instituted in the United States District Court for the Southern District of New York, on the 1st day of August, 1908, and in the United States District Court for the Northern District of Ohio, for the purpose of having The Sea Coast Construction Company adjudged an involuntary bankrupt, and to have a receiver appointed. The application for a receiver was denied and answers contesting the proceedings were duly interposed, and the defendant upon the refusal of his application for a receiver, then made an application in the Unted States District Court for the Southern District of New York to set aside the sale of the assets and property of The Breakwater Construction and Engineering Company made by the special commissioner to the defendant herein. This proceeding was begun some time in September in the year 1908. The said application to set aside the said sale was made by certain alleged creditors of The Breakwater Construction and Engineering Company, and were brought at the instance of the said Edward W. Norris, who solicited retainers therein, wherein his fees were contingent upon the successful termination of the suit to set aside the sale and the confirmation thereof, and the said Edward W. Norris upon the petition of divers creditors drawn by him, and the allegations of which were made by the said creditors upon information supplied and furnished by him in betrayal of his professional obligations and in violation of his office as an attorney-at-law of the state of New York, and in violation of his duty towards his clients as aforesaid.</p> <p>These proceedings affected the securities held by the First National Bank of Cleveland, Ohio, to wit, the bonds and stock of the defendant, and the said First National Bank of Cleveland, Ohio, insisted that a compromise should be made with the said plaintiffs in this a.ction, and that they should be paid to discontinue the attacks upon The Breakwater Company and affecting the securities of the bank aforesaid. And the defendant under duress, and by reason of the threats of the said Edward W. Norris and the claims of the said First National Bank of Cleveland, Ohio, entered into negotiations with the said Edward W. Norris and John F. Donovan, and the said bank having then and there the control of The Breakwater Company insisted that the demands of the plaintiff, the said Edward W. Norris, both for himself and for the said John F. Donovan, should be complied with, and on October 3, 1908, the bank having demanded and forced the settlement with the said Edward W. Norris, and John F. Donovan for the sole and whole purpose of quieting the title of the said bank to the said securities aforesaid", compelled the defendant to enter into the agreement in controversy, and the said agreement was drawn and entered into. That said agreement was based upon the fact that the said Edward W. Norris had rendered services to the defendant, when in truth and fact he rendered no service whatsoever to the defendant, but all his actions had been to the detriment of the said defendant, and he had rendered no services in its behalf.</p> <p>That the said First National Bank of Cleveland, Ohio, was intimidated by the threats of the said Edward W. Norris, and compelled the officers of “The Breakwater Company to carry out the said agreement until the bank’s indebtedness was paid off, to wit, about the 17th day of November, 1910, and the defendant during such time and in pursuance of the said agreement, paid to the said Edward W. Norris all the sums provided to be paid, but at no time from October 3rd, 1908, to November 17, 1909, or at any time thereafter did the said Edward W. Norris render and perform for The Breakwater Company, or any of its officers, or any of the parties in interest, any service whatsoever; and furthermore, no sum or sums of money were paid to the said Edward W. Norris by the defendant in this cause, after the claim of the First National Bank of Cleveland, Ohio, was paid, and the duress incident to the said claim and the holding of the securities of the defendant was removed. That the defendant during the time that its securities were held by the First National Bank of Cleveland, Ohio, was controlled by the First National Bank of Cleveland, Ohio, is apparent from the fact that a majority of the board of directors was composed of the officers and counsel of said bank and it was therefore compelled to yield to the control of the said First National Bank of Cleveland, Ohio, in the execution of said agreement, which execution was produced by duress, and to the detriment of the defendant, and for the benefit of the First National Bank of Cleveland, Ohio, which held the securities of the defendant as collateral security for its debt of $350,000.</p> <p>That due to the duress exercised by the First National Bank of Cleveland, Ohio, and Edward W. Norris, the plaintiff, the defendant paid to the plaintiff the following sums of money:</p> <p>1908 March 21,...................$1,050.00</p> <p>October 8, .................. 1,500.00</p> <p>“ 30, .................. 300.00</p> <p>November 7, ................ 292.25</p> <p>« 19, .................. 592.25</p> <p>December 21,................ 592.25.</p> <p>1909 July 27, .................... 350.00</p> <p>August 24, .................. 350.00</p> <p>October 14, ................. 700.00</p> <p>And the defendant avers that the aforesaid payments made to the plaintiff were made under unlawful duress, and that the defendant was not a free agent in making the same and now claims the right to recover said money from the plaintiff with interest from the various dates of payment, and asks for a certificate, and for leave to have the jury find a verdict in its favor for said amounts.</p> <p>And the defendant further avers that on or about April 30th, 1910, the said Edward W. Norris in violation of the contract annexed to the copy of the plaintiff’s statement of claim was in communication and conference with certain creditors of The Breakwater Construction and Engineering Company and the Sea Coast Construction Company, with a view of attacking the title of The Breakwater Company to certain of its property, and involving it in further expensive and collusive litigation.</p> <p>Furthermore, the said Edward W. Norris, the plaintiff, threatened that unless he were retained and employed as counsel by the defendant, The Breakwater Company, for a further term that he would accept a retainer from such creditors whose claims and demands were hostile to the interests of the defendant, The Breakwater Company, all of which was in direct violation of the terms and spirit of the written contract annexed to the plaintiff’s statement of claim.</p> <p>The court made absolute the rule for judgment.</p> <p>Error assigned, was the order of the court.</p>

<p>Appeal, No. 63, Oct. T., 1912, by Andrew Hein, from judgment of Superior Court, April T., 1911, No. 131, affirming order of Q. S. Allegheny Co., Sept. T., 1909, No. 5, dismissing exceptions to report of viewers In re Chartiers Creek Bridge.</p> <p>Appeal from judgment of Superior Court.</p> <p>The opinion of the Superior Court states the case. See Chartiers Creek Bridge, 48 Pa. Super. Ct. 106.</p> <p>Error assigned, was the judgment of the Superior Court.</p>

<p>Appeal, No. 237, Jan. T., 1911, by defendant from judgment of C. P. Montgomery Co., Dec. T., 1910, No. 102, on verdict for plaintiff in case of Edgar E. Proctor v. Lehigh Valley Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Weand, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Decedents’ estates — Decedents’ debts — Lien on real estate — Act of June 11/., 1901, P. L. 562 — Husband and wife — Promissory note —Conveyance in fraud of creditors.</p> <p>Where a husband gives his wife a promissory note payable at his death, and after the death of his wife conveys all of his real estate to his son in consideration of the latter supporting him for life, the executor of the wife cannot after the death of the husband maintain a bill in equity to declare the deed to the son fraudulent and void as to the wife’s estate and for a decree that the property conveyed by the deed should be liable for the note, where it appears that the lien of the debt represented by the note had not been continued as required by the Act of June 14, 1901, P. L. 562, and that the decree if entered would be of a date more than two years after the death of the decedent; and this is true, even if the conveyance to the son had been in fraud of the wife’s estate.</p>

<p>Appeals — Appeals from Superior Court — Assignments of error.</p> <p>1. On an appeal from the Superior Court, tbe assignments of error filed in the Superior Court to the judgment of the court of original instance should be set forth, and the alleged error in acting upon these assignments should be specified.</p> <p>Constitutional law — Special legislation — Automobiles—Service outside of county — Act of April 27, 1909, P. L. 265 — Change of venue.</p> <p>2. The Act of April 27, 1909, P. L. 265, relating to motor vehicles and providing that, in actions for damages against the owners of such, service may be had in another county than where the accident occurred and the suit is brought, is constitutional and does not violate Art. Ill, See. 7, of the Constitution of Pennsylvania, which provides that the general assembly shall not pass any local or special law “regulating the practice or jurisdiction of, or changing the rules of evidence in any judicial proceeding or inquiry before courts.”</p> <p>3. The people who own, use or operate automobiles may very properly be classed together and made subject to legislation which, though distinctive, is appropriate to them, provided the legislation applies to all within the class and affects them all alike. Trades, occupations and professions are proper subjects of classification.</p> <p>4. The Act of April 27, 1909, P. L. 265, does not change the venue of the action. Legislation authorizing service of process can in no sense be properly construed as changing the venue of the action. There can be no change of venue until the defendant has been brought into court. If a change.of venue is then to be made, it will be on the application of one of the parties.</p> <p>5. The Act of April 27, 1909, P. L. 265, Sec. 24, is an entirely new provision, and does not amend the Act of July 9, 1901, P. L. 614, or any other act, and therefore does not violate Art. Ill, Sec. 6, of the Constitution relating to amendment of acts.</p>

<p>Appeals Nos. 28 and 29, Oct T., 1912, by plaintiff from decree of C. P. Beaver Co., Sept. T., 1910, Nos. 2 and 3, dismissing bills in equity in case of North Shore Railroad Company v. Pennsylvania Company, lessee of and operating the Pittsburgh, Fort Wayne and Chicago Railway.</p> <p>Bills in equity for an injunction. See Ohio River Junction R. R. Co. v. Penna. Co., 216 Pa. 316, and Ohio River Junction R. R. Co.’s Petition, 2'19 Pa. 345.</p> <p>Errors assigned were decrees dismissing bills.</p>

Appeal No. 342, Jan. T., 1911, by defendant, from judgment of C. P. Montgomery Co., June T., 1910, No. 49, on verdict for plaintiff in case of Adella M. Trumbower v. Lehigh Valley Transit Company. Trespass to recover damages for personal injuries. Before Weand, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $(7,500. Defendant appealed.

<p>Wills — Charitable bequests — Witness—Disinterested witness.</p> <p>Prior to tbe passage of tbe Act of June 7, 1911, P. L. 702, a gift to a charity by will failed when one of tbe attesting witnesses was a beneficiary in tbe will altbougb be bad no interest in tbe charity.</p>

<p>Appeal No. 11, Jan. T., 1912, by George Gane and Marvin E. Reynolds, on behalf of the incorporators, from order of C. P. Montgomery Co., refusing to eliminate restrictive stipulation In re incorporation of Moose Home Association of Bryn Mawr.</p> <p>Petition to eliminate restrictive stipulation in a charter, representing that the petitioners composed a majority of the members of the association.</p> <p>The court in banc filed the following opinion:</p> <p>Our decree of incorporation contained a proviso that no intoxicating liquors should be sold, furnished or distributed on the premises of the association. This stipulation was made a part of our decree because the president, vice president and treasurer signed a paper indicating that it was the desire of the said home that no intoxicating liquors should be dispensed upon the premises of the association.</p> <p>We are now asked to eliminate the provision in our decree relating to intoxicating liquors. It is contended that the officers of the association had no authority to file a stipulation against the use of liquors on the premises.</p> <p>We referred the original application to an examiner and submitted to him the following inquiry:</p> <p>“Does the proposed corporation intend to dispose of, distribute or otherwise furnish intoxicating liquors to its members?”</p> <p>He took the testimony of ten witnesses called by the petitioners. Each and every one declared he was opposed to any distribution or sale of intoxicating liquors on the premises. They also intimated that the association, so far as they were able to determine, would not countenance the sale or distribution of liquors by the home. They offered a poster that was displayed by the house committee which reads as follows: “Any member found bringing liquor into the home shall be fined the sum of five dollars and be debarred from all privilege until the same is paid.” The examiner attached to his report as an exhibit one of these posters.</p> <p>It is evident that the court granted the charter, incorporating the provision against intoxicating liquors, in accordance with the expressed desire of the petitioners. If the evidence submitted to the examiner did not express the sentiment of the petitioners, why was it not opposed by some one?</p> <p>We were bound to assume that this testimony was furnished by the applicants for the charter to guide us in formulating our decree. If we eliminate the proviso against intoxicating liquors, we will disregard the declared wishes of certain incorporators, without affording ing them a hearing. We find no justification for any interference with the decree already entered and now on file. The application is refused.</p> <p>Error assigned was the order of the court.</p>

Appeal No. 4, Jan. T., 1912, by defendant, from judgment of O. & T., Lancaster Co., Sep. Sessions, 1911, No. 168, on verdict of guilty of murder in tbe first degree in case of Commonwealth v. Antonio Romezzo. Indictment for murder.

<p>Appeal No. 66, Jan. T., 1910, by plaintiff from judgment of C. P. Del. Co., March T., 1906, No. 85, on verdict for defendant in case of Edna Wilson v. Alphonse Pericat.</p> <p>Capias ad respondendum trespass to recover for money had and received. Before Broom all, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“Pausing at that point, if some of these orchid blooms belonged to Mr. Pericat himself either flowering upon his own plants in this green-house or in the spring of 1903, March or April or after that, any of these orchid blooms came from his green-house, then, of course, they were his and he had a right to sell them and appropriate the proceeds. Hence I say if all of the blooms which Mr. Pennock sold belonged to the plaintiff that part of her case would be fully made out; but just to the extent that she leaves that question open just to that extent there is derogation from her proof. I don’t recall any evidence as to the quantity of these blooms which Mr. Pericat himself may have owned. Her contention is, however, that all of the blooms which the defendant delivered to Mr. Pennock for sale were hers. That is her contention. If there is any evidence in the case by which you can segregate them, the blooms which Mr. Pennock sold, segregate the plaintiff’s from those which belonged to Mr. Pericat, that should be done. I may say, however, that so far as the blooms which may have belonged and for which Mr. Pericat is concerned, the quantity does not appear. My impression of the matter is that the quantity was proportionately small as contrasted with the aggregate amount. Whatever that amount of blooms, however, which you conclude belonged to the plaintiff which Mr. Pennock sold — whatever that amount is, it next becomes her duty under the stress of holding the laboring oar to prove their value. Now that she essays to do by proving what Mr. Pennock sold them for.” (1)</p> <p>“If you stopped at that point and the contention didn’t go any further, then she would be entitled to a verdict for $1252.45 plus interest say from May, 1903, the close of the transaction, May, 1903, a matter approaching six years ago, she would be entitled to a verdict for that sum, subject as I again repeat to whatever you conclude to determine from the evidence as to how much of these blooms belonged to Mr. Pericat. Therefore, subject as I have said she has at this point filled the requirement which the law imposes upon her when she undertakes to shoulder the burden of proof which rests upon her.” (2)</p> <p>“A correct account of these blooms sold by Mr. Pennock might be to charge Mr. Pericat with the amount of money he received from Mr. Pennock, $1265.60, from which I assumed should be' deducted whatever expenses Mr. Pericat was at in obtaining this $1,265.60, on the other side of the account, whatever that amount would be after eliminating, if there should be any, eliminating any of his own blooms, and after deducting Ms expenses, and the balance might be shown by the account.” (3)</p> <p>“Now, if the difference between $1085.18 ,and $1265.60 is made up of what Mrs. Wilson gave him and of what his expenses were, and whatever part you think was derived from his own blooms, then that is a correct account. But you cannot solve a problem in algebra if there are too many unknown quantities which you have no means of ascertaining or fixing. So that whatever that account in your judgment has lost, give it your consideration. I may say that so far as my impressions are concerned I fail to see that much can be. gathered from it.” (4)</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned among others were (1-4) above instructions, quoting them.</p>

<p>Appeal No. 85, Jan. T., 1911, by defendant from judgment of C. P. Delaware Co., Sep. T., 1907, No. 223, on verdict for plaintiff in case of Edward T. Bullock v. Baltimore & Ohio Railroad Company.</p> <p>Trespass to recover for the loss of crops and growing timber. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $1632.40. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions.</p>

Appeal, No. 93, Jan. T., 1911, by plaintiffs from order of C. P. Bucks Co., Nov. T., 1909, No. 6, refusing to take off non-suit in case of Anthony Masino et al. v. Farmers’ & Mechanics’ Mut. Ins. Assn, of Bucks County. Assumpsit upon a policy of fire insurance. Before Stout, P. J. At the trial the court entered a compulsory non-suit which it subsequently refused to take off. Error assigned, was refusal to take off non-suit

Appeal, No. 123, Jan. T., 1911, by plaintiff from certificate and judgment of C. P. Delaware Co., June T., 1910, No. 10, for defendant in case of Henry B. Tatem and Samuel B. Dobbs v. John L. Galloway. Assumpsit by endorsers on a promissory note against a former endorser. Before Johnson, P. J. Action in assumpsit on a promissory note by Henry E. Tatem and Samuel B. Dobbs, who were endorsers, against John L. Galloway, a prior endorser who was also the payee of the note.

<p>Negligence — Railroads—Stopj hole and listen — Grade crossing— Gase for jury.</p> <p>In an action by a girl seventeen years old against a railroad company to recover damages for personal injuries sustained at a street crossing of a railroad, it appeared that the accident happened on a dark and foggy night, and at a crossing where there were no lights in the immediate vicinity. At the crossing planks were laid parallel with the rails and extended the entire width of the street so that there was no part of the crossing specially set aside for pedestrians. As the plaintiff approached the crossing from the east and was a few feet from the south bound track, a heavy freight train was passing on that track. After the rear of this train had passed the crossing about 100 or ISO feet, plaintiff testified that she approached the crossing, stopped, looked and listened, and neither seeing nor hearing an approaching train proceeded on her way. The heel of her shoe caught in the space between a plank and the west rail of the north bound track. Before she could extricate herself a freight engine approaching from the south caught her, and her foot was severely injured. The testimony for the plaintiff although contradicted tended to show that the engine had no head light or other light, that no signals or whistles were given, and that the stationary signal bell of the crossing was not ringing. Held, (1) that it was immaterial that the plaintiff in making the crossing deflected from the side of the street inasmuch as no part of the crossing was specially set aside for pedestrians; (2) that the case was for the jury, and that a verdict and judgment for the plaintiff should be sustained.</p>

Appeal, No. 138, Jan. T., 1912, by plaintiff from order of C. P. Delaware Co., June T., 1908, No. 27, dismissing exceptions to auditor’s report in case of Union Savings & Building Association of West PMladelpMa v. Henry VaMe et al. Exceptions to report of A. A. Cochran, Esq., auditor. The facts are stated in the opinion of the Supreme Court. Error assigned, was in dismissing exceptions to auditor’s report.

Appeal, No. 180, Jan. T., 1911, by defendant from judgment of C. P. Chester Co., Oct. T-, 1908, No- 18, on verdict for plaintiff in case of Sheridan Pressey, to the use of Stacy G-. Glauser and Edwin D. Glauser, trading as Stacy G. Glauser & Son v. Herbert McCornack. Assumpsit to recover a balance alleged to be due on a building contract. Before Hemphill, P. J. At the trial it appeared that the case turned on whether the contract had or had not been substantially performed.

<p>Equity — Findings of fact — Negligence—Mistake—Trust and trustees.</p> <p>1. The findings of fact by a chancellor that a trust estate had been subjected to great loss by the negligent act of the trustee, if based upon sufficient evidence, will not be reversed by the appellate court if there is no palpable error.</p> <p>2. When the facts to be found depend upon conflicting testimony, it is the duty of the chancellor, as it is of a jury to give due consideration to all of it, to reconcile it, if possible, and with an open mind make findings based upon the weight of it.</p> <p>3. Where a bill in equity is filed against a trustee for an ac- ■ counting of moneys lost through an improper sale of real estate, and other parties are joined as defendants who appear and answer, and it appears that all of the defendants are interested in the property sold or the proceeds thereof, the court in entering a decree against the trustee may also enter a decree against the other defendants that they pay certain sums to the trustee, if it appears that they deceived the trustee to his loss.</p> <p>Mr. Chief Justice Fell dissents.</p>

<p>Appeal, No. 18, Jan. T., 1912, by plaintiff from decree of C. P. Bucks Co., Oct. T., 1910, No. 3, on bill in equity in case of John B. Matthaei et al. v. Elmer E. Pownall.</p> <p>Bill in equity to set aside a deed. Before Staples, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned, amongst others, was decree dismissing the bill.</p>

Appeal No. 203, Jan. T., 1911, by defendant from decree of C. P. Chester Co., No. 512, in equity, in case of Fidelity & Deposit Company of Maryland v. Lewis Phillips and Sarah C. Massey and Joseph W. Hawley, Executors of Isaac Massey, deceased. Bill in equity for contribution.

<p>Appeal, No. 371, Jan. T., 1910,'*' by defendants, from decree of C. P. Schuylkill Co., March T., 1909, No. 3, on bill in equity in case of John. E. Curran, Mine Inspector in the Eighteenth Anthracite District of the State of Pennsylvania v. Warren Delano Jr. and Frederick A. Delano, Trustees under the last will and testament of Warren Delano, deceased, and under the last will and testament of James S. Cox, deceased.</p> <p>Bill in equity for an injunction. Before Bechtel, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned, was decree awarding injunction.</p>

Appeals, Nos. 192 and 193, Jan. T., 1911, by plaintiff from orders of C. P. Schuylkill Co., Nov. T., 1909, Nos. 320 and 321, refusing to affirm bonds in case of Oak Grove Water Company v. Albert Thompson. Exceptions to bonds. Before Brumm, J. The opinion of the Supreme Court states the case. Errors assigned, were the orders refusing to affirm the bonds.

Appeals, Nos. 212 and 213, Jan. T., 1911, by defendant from decree of C. P. Lycoming Co., June T., 1909, Nos. 4 and 5, on bills in equity in case of Edison Electric Illuminating Company of Williamsport and Lycoming Electric Company v. Citizens Electric Company. Bills in equity for injunctions.

<p>Negligence — Street railways — Collision between buggy and car.</p> <p>In an action against a street railway company to recover damages for personal injuries, a verdict and judgment for the plaintiff will be sustained where the evidence shows that at the time of the accident plaintiff was riding in a buggy on a dark night along a country road which for a distance of 1,200 feet was practically parallel with the defendant’s tracks, and but a few feet therefrom; that at a point where the tracks curved and crossed the road, the defendant maintained an electric bell which rang automatically when a car was within S00 feet of it; that on the night of the accident the bell was out of order and did not ring, and this condition had been reported to the car dispatcher several hours before; that plaintiff was familiar with the crossing and stopped when about twenty feet from it, and looked and listened for a car and listened for the sound of the electric bell, and continued to look as he advanced to the crossing; that his carriage was struck by a car running in the direction in which he was driving; that trees and underbrush at the side of the road interfered with the view of the tracks; that the car was running at a very rapid rate; and that no notice of its approach was given by gong or whistle.</p>

<p>Hoad law — Change of grade — Physical change — Authority of councils.</p> <p>Damages are not recoverable for a change of grade of a street until the actual work on the ground is begun. It is the physical change and not the mere establishment of the grade on the official plan that gives the right, and such grading must be done only by the authority of the city councils exercised in the manner prescribed by law. Work done by a street commissioner without authority of a city ordinance does not constitute a legal change of grade which will confer upon the owner of abutting property a right for damages.</p>

Appeal No. 17, Jan. T., 1912, by defendant from judgment of C. P. Schuylkill Co., March T., 1909, No. 197, on verdict for plaintiff in case of J. G. Stevenson v. Francis B. Bannan, Executors of the Estate of John Bannan, deceased. Assumpsit by a real estate broker to recover commissions. The opinion of the Supreme Court states the case. Defendant presented the following points: “1.

Appeal No. 97, Jan. T., 1911, by defendant from judgment of C. P. Delaware Co., Dec. T., 1909, No. 112, on verdict for plaintiff in case of Owen J Mullen v. Chester Traction Company. Trespass to recover damages for personal injuries. Before Johnson, P. J. The facts are stated in the opinion of the Supreme Court. At the trial the jury returned a verdict for $8,700, on which, judgment was entered for $6,000, all above that sum having been remitted.

<p>Husband and wife — Confession of judgment — Act of June 8, 1898, sec. 8, P. L. 8U-</p> <p>The provision contained in see. 3 of the Act of June 8, 1893, P. L. 344-, that a married woman “may not sue her husband,” has • regard to adverse proceedings where the party complained against by legal process is brought into a court of justice to answer. It has no application to a judgment entered by a wife against her husband under a warrant of attorney to confess judgment.</p>

<p>Appeal, No. 246, Jan. T., 1911, by plaintiffs from order of C. P. Lackawanna Co., May T., 1907, No. 436, refusing to strike off non-suit in case of Kate Grant et al. v. Dickson City Borough.</p> <p>Trespass to recover damages for personal injuries. Before O’Neil, J.</p> <p>At the trial the court entered a compulsory non-suit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off non-suit.</p>

Appeal, No. 60, Jan. T., 1912, by defendants from judgment of C. P. Lackawanna Co., June T., 1911, No. 465, for plaintiff on case stated in suit of Mary A. Lloyd and Samuel J. Lloyd to the use of Mary A. Lloyd v. Alice Fretz and M. D. Fretz. Case stated to determine marketable title to land belonging at one time to Barbara J. Lloyd, wife of John Lloyd.

<p>Wills — Estate in fee simple — Rule in Bhelley’s case — Act of April ffl, 1855, P. L. 868.</p> <p>Testator by his will gave to his daughter “the use, occupation and income” of his residuary estate, for and during her natural life, and upon her death, “leaving a child or children, and heir or heirs to her,” he gave the entire residue of his estate “to the said child or heir solely, or to the said children or heirs equally share and share alike.” Held, that the daughter took an estate in fee tail which under the Act of April 27, 1855, P. L. 368, was enlarged to a fee simple.</p>

<p>Appeal, No. 153, Jan. T., 1911, by defendant from judgment of C. P. Berks Co., Sept. T., 1909, No. 30, on verdict for plaintiff in case of Charles Yocum v. Reading City.</p> <p>Trespass to recover damages for personal injuries.</p> <p>At the trial the jury returned a verdict for plaintiff for |8,156.50. On a rule for a new trial and for judgment for defendant n. o. v. Endlich, P. J., filed the following opinion;</p> <p>The complaint that the verdict rendered in this case is excessive was abandoned at the argument. The remaining reasons assigned in support of the application for a new trial, except those relating to the refusal of defendant’s points, were not attempted to be sustained by any contention pertinent to them. The points referred to contemplating binding instructions in favor of defendant, their consideration is more properly involved in the disposition of the application for judgment n. o. v., — which, indeed, is the only one now pressed. It is grounded, as the city solicitor explicitly states, upon the theory that the testimony of the plaintiff himself discloses contributory negligence on his part to be declared by the court.</p> <p>The very recent decision in Joyce v. R. R. Co., 230 Pa. 3, reiterates the well-established rule that the question of contributory negligence is for the court only where both the facts and the inferences to be drawn from them are free from doubt, — so much so as to make it inconceivable that any two minds could rationally differ in their conclusions.</p> <p>The plaintiff had had a year’s experience in riding his motor-cycle when the accident happened upon Eighth street, one of the principal thoroughfares of the city. He was riding south towards Penn street, which is two blocks from the point where he came upon Eighth street. He had not been in the habit of passing over this portion of Eighth street, and was not familiar with its condition. The block immediately north of Penn street, between it and Washington street, had for some considerable time been and then was very much out of repair. The asphalt pavement was broken up with numerous holes. When plaintiff reached Washington street he found the street freshly sprinkled, and slowed down to a very low speed. Beyond Washington street he at once encountered a large hole, but passed it keeping close to the curb. Looking ahead of him he observed between the curb and the street railway track several teams, some moving and one standing at the curb. With his attention directed partly to the street bed and partly to the teams, he ran into another hole which he did not see. His machine broke and he, in falling, was very severely and permanently injured. His own testimony in chief and on cross-examination as to what he was doing and how he was proceeding cannot be declared as matter of law to convict Mm of any omission of duty. After getting by the first hole, he says—</p> <p>I proceeded but a very short distance when my attention was attracted by some teams; I was going ahead, I looked carefully. Q. Did you look at the roadway? A. Yes, sir. Q. Did you see any hole? A. No, sir..... Q.....You say you didn’t see a hole? A. No, sir..... Q. You didn’t look down at the time that you were passing there because you say you were looking at the teams? A. I looked carefully ahead when I was riding there, straight ahead.....Q. And your attention was directed to the teams; is that right? A. Yes, sir. Q. And you you were not looking down on the street at that time? A. No, sir, not when I was looking at the teams.....Q. And you were thinking of passing by those teams? A. Yes, sir, I was thinking of passing the team that was moving; it was my intention that that team should pass the one that was tied to the post and I would pass it at Court street.....Q. (After passing the first hole) you didn’t look for any more holes after that? A. No, sir. I looked ahead on the road and watched the teams too .....as a man will do when he is driving, he cannot give his sole attention to a horse or to an automobile or to the road, because in doing one or the other something else may happen; he has to watch for both. Q. Just at that particular time.....you were not paying any attention to the street and you said so, didn’t you? A. No, sir; I looked ahead on the road. Q. You just said that your attention was directed to the teams? A. Well, I looked at the road and then looked at the team; I couldn’t look at the two at one time.....Q. And you looked down on the ground? A. I looked at the ground and then looked around for teams, that I might avoid the teams.....Q. Well, it was daylight? A. It was daylight. Q. It was light enough for you to have seen the hole if you had looked for it? A. No, sir, I couldn’t see the hole. Q. You couldn’t see the hole? A. I didn’t see the hole. Q. And your eyesight was good? A..... yes, sir.</p> <p>If in all this there are any inconsistencies, it was of course for the jury to deal with them and to ascertain the effect of the testimony as a whole: Kohler v. R. R. Co., 135 Pa. 346; Danko v. Rys. Co., 230 Pa. 295. It certainly does not exclude, as unreasonable and capricious, an interpretation whereby his conduct would appear to have been unobjectionable, judged by the rules laid down in such cases as Evans v. Philadelphia, 205 Pa. 193; Quinlan v. Philadelphia, 205 Pa. 309; McClay v. Philadelphia, 224 Pa. 174. Under the charge, which is not impugned, the jury must be understood as having put that interpretation upon it, and that settles his right to recover.</p> <p>The rules to show cause are discharged.</p> <p>Error assigned was in refusing binding instructions for defendant and in refusing motion for judgment n. o. v.</p>

<p>Appeal, No. 167, Jan. T., 1911, by Milton H. Schnader, from decree of O. C. Berks Co., Dec. T., 1910, No. 21, dismissing exceptions to adjudication in Estate of Davis O. Schnader, deceased.</p> <p>Exceptions to adjudication.</p> <p>From the record it appeared that Jacob C. Schnader by a codicil to his will directed as follows:</p> <p>Item: I give devise and bequeath to my Son Milton H. Schnader his heirs and assigns the following mentioned real and personal Estate, in trust</p> <p>One two Story Brick house and lot of ground on tenth Street No. 250</p> <p>One two Story Brick House and lot of ground on the South eleventh St. No. 232</p> <p>One two Story Brick house and Lot of ground on the South side Muhlenburg St. No. 952</p> <p>One two Story Brick house and Lot of ground on the North side of Cotten Street No. 951 he to pay the rents, issues, income and profits thereof to my granddaughter Maud Bachman or to her lawful issue annually for and During her natural life the Same to commence upon her or her Said issue attaining the age of twenty one years. Provided nevertheless that Said mentioned real and personal property may be transferred and conveyed in fee Simple to my Said grandaughter or to her Said issue by Said trustee whenever in his Judgment and discretion and with the consent of my wife, he Shall deem it expedient and prudent to, Do, So, and provided also that in the event of the death of my Said granddaughter without Leaving Lawful issue, I Devise and bequeath Said real and personal property to my Son Milton H. Schnader his heirs and assigns</p> <p>The granddaughter, S. Maude Bachman, having reached the age of twenty-one years was awarded the accumulations of income which had accrued during her minority.</p> <p>Exceptions to the adjudication were dismissed by the court in an opinion by Bland, P. J.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 168, Jan. T., 1912, by defendant from judgment of C. P. Northampton Co., Noy. T., 1910, No. 76, on verdict for plaintiff in case of Lehigh. Valley National Bank v. Robert B. Ott, surviving partner of the firm of Robert J. Ott & Son, composed of Robert J. Ott and Robert B. Ott, Administrator of Robert J. Ott, deceased.</p> <p>Assumpsit against endorsers on a promissory note. Before Heydt, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>At the trial when Robert B. Ott was on the stand he was asked this question:</p> <p>Q. Do you recollect furnishing the bank with a statement of the condition of the assets and liabilities of your firm soon after your father died?</p> <p>Objected to as incompetent and immaterial.</p> <p>Mr. Doster: I propose to show now by this witness that they furnished a statement of their liabilities which amounted to $12,000, and that our note was included in that amount.</p> <p>The Court: That is, that this note now in suit was included in that statement?</p> <p>Mr. Doster: Included in that statement, although not specified, but the total indebtedness is the same, including the $2,300 note.</p> <p>The Court: Objection overruled; bill sealed for defendant. [1]</p> <p>George W. Holloway, sworn in behalf of plaintiff in rebuttal.</p> <p>Direct Ex. by Mr. Doster.</p> <p>Mr. Doster: We propose to prove by this witness that he was the assistant cashier of the Lehigh Valley National Bank; that he is now full cashier; that he has made a copy of the credit book of the bank to show the notes made by the Otts With Brown, whether straight notes or accommodation notes, from the year 1901 to the death of Robert J. Ott, September 28,1908.</p> <p>Mr. Loos: You are cashier of the bank?</p> <p>A. Yes, sir.</p> <p>Q. Do you own any stock?</p> <p>Objected to.</p> <p>The Court: Objection sustained.</p> <p>Mr. Doster: That he also made a list from the books of the bank of the accommodation notes drawn and discounted in the Lehigh Valley National Bank by Bobert J, Ott & Son, the list being the same one that was testified to yesterday by Bobert B. Ott; that on the death of Bobert J. Ott he furnished the bank with a statement of the assets and liabilities, including among them this $2,300 note, and that at no time during these conversations did Mr. Ott claim that this $2,300 note was not paid and that he was not liable on that note.</p> <p>Objected to, for the same reason, that the offer does not contain a proposition to prove that the facts were brought to the knowledge of the surviving partner during the time, and therefore would be incompetent to charge him in this suit.</p> <p>The Court: Objection overruled. Bill sealed for defendant. [3]</p> <p>Bobert B. Ott was asked this question:</p> <p>Q. Do you know how the $12,000 item of the Lehigh ‘ Valley National Bank was made up?</p> <p>Objected to, because he has twice said he don’t know.</p> <p>The Court: Objection sustained. Bill sealed for defendant. [5]</p> <p>Q. Did you pay to the Lehigh Valley National Bank all the indebtedness that you admitted as being correct?</p> <p>Objected to.</p> <p>The Court: Objection sustained. Bill sealed for defendant. [6]</p> <p>Q. Can you give us a statement of the payments made to the Lehigh Valley National Bank after the death of your father?</p> <p>Objected to; it makes no difference what payments were made on account.</p> <p>The Court: Objection sustained. Bill sealed for defendant. [7]</p> <p>Verdict and judgment for plaintiff for $¡2,652.65. Defendant appealed.</p> <p>Errors assigned were (1, 3, 5, 6, 7) rulings on evidence quoting the bill of exceptions.</p>

<p>Negligence — Master and servant — Unguarded shafting — Act of May 8, 1905, P. L. 358 — Contributory negligence.</p> <p>1. Shafting thirteen and one-half feet above the floor of a fac tory and ending in a collar upon •which is a projecting set screw, is properly guarded within the meaning of the Act of May 2, 1905, P L. 352, which provides that “shafting, set screws......shall be properly guarded,” in so far as employees on the floor of the factory are concerned; but it is not properly guarded as to an employee who is engaged at work at a scaffold ten feet nine inches above the floor and who was killed by reason of his clothes catching on the end of the revolving shaft.</p> <p>2. “Properly guarded” is a relative term or expression, and whether the statutory requirement in that respect has been complied with necessarily depends upon the facts of the particular case. Machinery may be so distant from the place where an employee is engaged, as to render it entirely safe as to him; on the other hand, it may be located in such proximity to the place he is called to perform his service that to protect him against danger an artificial guard is necessary.</p> <p>3. In an action against an employer to recover damages for the death of an employee, the question of the deceased’s contributory negligence is for the jury, where the evidence shows that the deceased did general work about the defendant’s factory, that on the day of the accident he was directed to assist a carpenter in completing certain work in the construction of a scaffold of a temporary character; that about four feet above the top of the scaffold was a revolving shaft which was unguarded, and that the deceased in performing the work which he was directed to do was caught by the revolving shaft and killed.</p>

<p>Negligence — Railroads—Defective car — Duty of inspection— Mining company.</p> <p>Where a railroad company, after it has had an opportunity of inspecting a car, delivers such car with a defective brake to the car crew of a mining company, and a member of such crew is injured by reason of the defective brake while the car is being moved on to a siding of the mining company for the purpose of being unloaded, the railroad company will be liable in damages to the member of the mining company’s crew who was injured.</p>

<p>Appeal No. 151, Jan. T., 1911, by plaintiff from order of C. P. Chester Co., Jan. T., 1910, No. 36, refusing to take off non-suit in case of East Whiteland Township v. Chester County.</p> <p>Assumpsit to recover $3,448.24, representing the cost of repairing a turnpike road, partly abandoned and partly condemned. Before Butler, J.</p> <p>At the trial the court entered a compulsory non-suit which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off non-suit.</p>

Appeal No. 84, Jan. T., 1912, by defendant from judgment of C. P. Franklin Co., Feb. T., 1912, No. 102, for plaintiffs on case stated in suit, of James Roland Wolff and Laura Guthrie v. R. O. Hafer. Case stated to determine marketable title to real estate. Before Gillan, P. J. From the case stated it appeared that Mary Bell Wolff died on July.22,1905, leaving a will which was as follows: “July 18, 1905.

<p>Wills — Estate tail — Estate in fee simple — Buie in Shelley’s case —Act of April 27, 1855, P. L. 868.</p> <p>A devise, by will executed in 1884, to a daughter, of real estate to be held and enjoyed by her during her natural life, “and at her death by the issue of her body, if such there be, forever,” and if she should die without issue, then over, gives to the daughter an estate tail, which under the Act of April 27, 1855, P. L. 368, is converted into an estate in fee simple.</p>

Appeal No. 87, Jan. T., 1912, by defendant from judgment of O. P. Northampton Co., Sept. T., 1908, No. 32, on verdict for plaintiff in case of Grover Bruch v. Howard S. Shafer. Assumpsit for money had and received. Before Scott, P. J. The facts appear by the opinion of the Supreme Court, and by the report of Bruch v. Shafer, 15 Pa. Super. Ct. 612. Verdict and judgment for plaintiff for $1,577.11. Defendant appealed.

<p>Appeal No. 127, Oct. T., 1911, by J. T. Blair, Trustee in Bankruptcy of Dilworth Coal Company, from judgment of C. P. Greene Co., June T., 1910, No. 40, on verdict for plaintiff in case of Guarantee Title & Trust Company, Trustee, v. Dilworth Coal Company, with notice to Joe Yetter, et al., terre tenants, and J. T. Blair, Trustee, etc.</p> <p>Scire facias sur mortgage. Before Inghram, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $338,625. J. T. Blair, Trustee, appealed.</p> <p>Error assigned was in giving binding instructions for plaintiff.</p>

<p>Corporations — By-laws—Officers■—Legislative charter.</p> <p>A corporation organized under a legislative charter and having as its object a purpose in which the public alone was interested was given by its charter power to make by-laws “for electing its officers and members, and for the general regulation and management of its affairs.” The charter also provided that the incorporators should meet and “elect a president, ten vice presidents, a recording secretary, a corresponding secretary, and t'wenty-four persons who shall form a board of managers; all of these officers shall constitute an executive committee, and in them shall be vested the control and management of the affairs of the said corporation, and the executive committee may appoint such other officers as may be necessary for the transaction of the business of the society.” The corporation adopted a by-law which provided thaf “the business of the society shall be administered by a president, ten vice presidents to represent the city of Philadelphia, and one, or as many more as may be considered desirable, for each county in the state.” The by-law further provided for the election of the other officers prescribed by the charter, and concluded with the words “who together shall constitute an executive committee.” After the adoption of the by-laws the corporation increased the number of its vice presidents from ten to twenty-two, twelve of these representing different counties in the state. Held, (1) that all of the vice presidents thus increased in number were members of the executive committee and entitled to vote at its meetings; (2) that the provision in the charter giving the executive committee power to appoint other officers than those enumerated in the charter was sufficient to sustain the by-law and to authorize an increase in the number of vice presidents; (3) that there was no intent shown by the legislature to make a distinction among the vice presidents, and that therefore they were all entitled to act as members of the executive committee.</p>

<p>Appeal, No. 306, Jan. T., 1911, by plaintiffs, from judgment of C. P. Bucks Co., May T., 1910, No. 6, for defendants on case stated in suit of Hannan H. B. Chambers et al., suing for themselves and the heirs of William Barnsley, deceased v. Union Trust Company of Pittsburg, Guardian of George T. Barnsley, Jr., a minor and Susa G. J. Barnsley.</p> <p>Ejectment for real estate in Warminster township.</p> <p>Case stated to determine title to real estate.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court in an opinion by Staples, P. J., specially presiding entered judgment for defendants on case stated.</p> <p>Error assigned was in entering judgment for defendants on case stated.</p>

<p>Appeal, No. 29, Jan. T., 1912, by defendant from judgment of C. P. Lebanon Co., June T., 1910, No. 30, on verdict for plaintiff in case of Sarab R. Funk v. Hummelstown and Campbellstown Street Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Henry, P. J.</p> <p>Tbe facts are stated in tbe opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Errors assigned were in refusing binding instructions for defendant and in refusing to enter judgment for defendant n. o. v..</p>

<p>Appeals, Nos. 12 and 13, Jan. T., 1912, by Conrad S. Beber and by Berks County, from order of C. P. Berks Co., Aug. T., 1911, No. 63, appointing board of viewers In re Petition of Conrad S. Beber.</p> <p>Petition for the appointment of viewers.</p> <p>From tbe record it appeared that Conrad S. Beber, the petitioner, was a property owner in tbe Borough of West Beading. The petition was under the Act of June 23, 1911, P. L. 1123, and prayed for the appointment of viewers to assess damages for injuries caused by a change of grade in streets in front of his property. The county of Berks was permitted to intervene and file exceptions, to the petition on the ground that the Act of June 23, 1911, was unconstitutional. The court below held that Sections 1, 2 and 3; the first and fourth paragraphs of Section 5; the first paragraph and the first sentence of the second paragraph of Section 6, and Sections 11 and 12, were constitutional, and that the remaining portions of the Act were void, particularly those portions which provided for the payment by the counties, of the salaries, costs and expenses of the board of viewers and of the viewers selected from the said hoard, and in those portions which provided for the making of rules and regulations by the Courts of Common Pleas of the respective counties for the government of the hoard.</p> <p>Both Conrad S. Beber and the county of Berks appealed.</p> <p>Error assigned was the decree of the court.</p>