Volume 236 — Pennsylvania State Reports

<p>Appeal, No. 24, Jan. T., 1912, by Martha M. Brown and Mary J. B. Chew, from decree of C. P. Delaware Co., Dec. T., 1910, No. 216, dismissing petition of appellants for appointment of Jury of view.</p> <p>Petition for the appointment of seven viewers under the Act of February 19, 1849, P. L. 84.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was order refusing the petition.</p>

<p>Wills — Construction — Life estate — Children — Estate in remainder — Partition — After-born children.</p> <p>1. Where a testatrix gives to her son and to her daughter all her estate “for and during their natural lives in equal parts, share and share alike and at the death of him or her as aforesaid .. .... to their children (my grandchildren) i. e. the share devised tc my son to go to his children, and the share to my daughter to go to her children,” the word “children” is a word of purchase, and not a word of limitation, and the son and the daughter take estates for life with remainder to their children.</p> <p>2. Where on a bill for partition it appears from the bill itself that one of the parties defendant had a life interest only in a share of the estate with remainder to his children, and through an oversight, no action is taken to protect the contingent interests of after bom children before the entry of decree for partition and the appointment of a master, the court may, before the sale is made, appoint a trustee to represent the contingent rights of such unborn children. Such action of the court cannot be regarded as an amendment to the bill and does not affect in any way the rights of the defendant in question or of his then existing children.</p> <p>3. On a bill for partition the court errs if it does not ascertain and define the respective interests of the parties before appointing a master to make partition; but if it appears that such action of the court does not harm any party in interest, the appellate court will not reverse the decree for such irregularity.</p>

<p>Husband and wife — Disability of wife to sue husband — Mortgage — Remainder interest.</p> <p>Where a husband and wife join in executing a mortgage on a remainder interest in real estate owned by the wife, and after default and the institution of a foreclosure suit on the mortgage, the life tenant dies, and the executor of the estate makes distribution thereof, taking a receipt in full from the wife for her share, excepting the bond, which the executor is to retain for the purpose of litigating in the name of the estate, but at the expense, charges and costs of the wife the executor cannot maintain a suit on the bond against the husband and wife to impose a liability upon the husband, although the bond and mortgage may have been originally given for the latter’s benefit. Such a suit is in reality an action at law by the wife against the husband and is a mere device to circumvent the law which prohibits a wife from suing a husband.</p>

<p>Negligence — Fire escapes — Number of fire escapes — Gase for jury.</p> <p>1. The statutory duty resting on the owner of a building of three or more stories and used as a factory or workshop, does not end in all eases with the erection of a single fire escape, even though in the detail of its construction it conforms to the requirements of the act.</p> <p>2. In an action against the owner of a building to recover damages for personal injuries sustained by the plaintiff in escaping from the building while it was on fire, it is reversible error for the trial judge to charge that one external fire escape properly built was a full compliance with the requirements of the Acts of Assembly, where it appears that the building in question was three stories high, and that at the time of the fire sixty-five women, including the plaintiff, were at work on the third floor.</p> <p>3. In such a case whether one external fire escape was an adequate provision for escape during a fire, considering the size of the building and the number of inmates, and whether it was so arranged as to make it readily accessible, safe and adequate for the escape of the inmates, were clearly questions for the jury. The fact that the fire escape was properly constructed is immaterial.</p> <p>4. Where an owner of a building supplies an inadequate means of escape, he cannot claim that injuries sustained by a person in escaping from the building while burning, were due to the want of familiarity on the part of the injured person with the means of escape that had been provided. It is not the lack of familiarity with the means of escape, but the inadequacy of the means, that is tht, proximate cause of the injuries in such a case.</p> <p>Appeal, No. 254, Jan. T., 1911, by plaintiff, from judgment of C. P. Lackawanna Co., May T., 1908, No. 712, on verdict for defendants in case of Ernestine Kohn v. John M. Clark and William H. Clark.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendants. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendants.</p>

<p>Deed — Essentials of a deed — Changing course of descent — Intestate laws.</p> <p>Collateral heirs of a decedent do not divest their title to real estate of which their decedent died seized, intestate and without issue, by the execution of a paper during the lifetime of the decedent which released under certain contingencies, their interest in the decedent’s estate, but which contained neither grantee, description of real estate, nor words of inheritance. Such a writing is wanting in the requisites of either a deed or a release.</p>

<p>Married woman — Husband and wife — Principal and surety— Judgment — Opening judgment — Public policy — Illegal contract— Estoppel.</p> <p>A judgment entered against a married woman on a judgment note which she signed as surety for her husband, will be opened because the signing of such a note by a wife, not only contravenes public policy but also offends against a positive statute. The wife is not estopped from asserting her right to have the judgment opened because she falsely certified on the face of the note that it was given for her own personal use and not as a guaranty or surety for any other person; nor is she estopped by the fact that she took no steps to have the judgment opened until four years after its entry. '</p>

Appeal, No. 291, Jan. T., 1911, by defendant from decree of O. O. Montour Co., Oct. T., 1910, No. 6, refusing an issue devisavit vel non In re Estate of Lafayette F. Roup, deceased. Appeal from Register of Wills. Before Evans, P. J. The opinion of the Supreme Court states the case. Error assigned was decree refusing an issue devisavit vel non.

<p>Criminal law — Embezzlement — Banks and banking — Act of June 12, 1878, P. L. 196.</p> <p>An indictment against private hankers under the Act of June 12, 1878, P. L. 196, cannot be sustained, where the indictment shows on its face that the money which the prosecutrix claims was embezzled, had been deposited to her credit in the banking institution of which defendants were members. Moneys deposited in a bank cease to be the property of the depositor, and become the property of the bank.</p>

<p>Appeals — Assignment of error — Refusal of new trial.</p> <p>Where an appellant assigns as the only error the refusal of the court below to grant a new trial, he concedes that the case was for the jury, and with no assignment complaining of any ruling of the trial judge, or of his charge to the jury, the appellate court can do nothing but dismiss the appeal.</p>

Appeal, No. 20, Jan. T., 1912, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1907, No. 235, on verdict for plaintiff in case of Prank B. Lyke v. Lehigh Valley Railroad Company. Trespass to recover damages for personal injuries.

<p>Negligence — Street railways — Sudden halt and start of car— Passenger — Evidence — Case for jury.</p> <p>In an action against a street railway company to recover damages for death of a woman passenger, the case is for the jury and a verdict and judgment for plaintiff will he sustained, where there is testimony tending to show that as the car on which the deceased was riding, approached a regular stopping place and was running very slowly, it was suddenly halted and then suddenly started forward on a curve, throwing the deceased from the body of the car where she was standing onto the platform and from the platform to the street.</p>

<p>Appeal, No. 347, Jan. T., 1911, by The Philadelphia Theological Seminary of St. Charles Borromeo, from decree of O. C. Phila. Co., Jan. T., 1909, No. 573, dismissing exceptions to adjudication in Estate of Patrick M. Kelly, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing exceptions to adjudication.</p>

Appeal, No. 79, Oct. T., 1912, by Jesse Leech Davison, from decree of O. C. Allegheny Co., Oct. T., 1911, No. 59, dismissing exceptions to adjudication in Estate of Sarah S. Leech, deceased. Exceptions to adjudication. From the record it appeared that the original will of the testatrix dated Nov. 11, 1898, contained several charitable bequests and was witnessed by C. F. Bingaman, a legatee under the will, but not interested in the charities, and by Caroline D. Childs.

<p>Mortgage — Agreement to extend mortgage — Forfeiture clause— Waiver.</p> <p>1. An agreement to extend a mortgage which provided that the principal of the mortgage shall not be demanded “during the extended term if the interest be paid quarter yearly ... and the other terms of the bond and mortgage are duly performed,” does not supersede a provision in the mortgage that in case of a default in the payment of interest quarterly within thirty days of the time it became due, the principal debt should become due and payable immediately.</p> <p>Affidavit of defense — Sufficiency — Averment of tender — Authority of agent — Interest — Mortgage.</p> <p>2. On a scire facias sur mortgage an affidavit of defense is insrifficient which avers that the defendant tendered to the attorney for the plaintiff at his office one quarter year’s interest upon the bond and mortgage, without any averment as to what was tendered, or as to the authority of the attorney to receive payment.</p>

Appeal, No. 9, Jan. T., 1912, by defendant from judgment of C. P. Delaware Co., Sept. T., 1908, No. 133, on verdict for plantiff in case of Charles M. Rhodes v. Robert Wetherill. Assumpsit to recover compensation for the sale of the stock of a corporation. Before Jiohnson, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,670. Defendant appealed. Error assigned was in refusing to enter judgment for defendant n. o. v.

Appeal, No. 189, Jan. T., 1912, by plaintiff from order of C. P. Berks Co., June T., 1911, No. 7, refusing petition for mandamus in case of Henry K. Hill v. George R. Fetberolf. Petition for mandamus. See Reading v. Miller, 45 Pa. Superior Ct. 28. The title and material portion of the ordinance was as follows: AN ORDINANCE.

<p>Practice, G. P. — Parties — Action allegata and probata.</p> <p>1. Where a suit is brought in the name of an administratrix on a deed or contract, and subsequently an amended statement is filed setting forth a later agreement differing in certain of its terms from the earlier one, and the cause of action is declared to be in the heirs and not in the administratrix of the deceased, the action cannot be sustained by putting in evidence the earlier writing and showing that the defendant had failed to comply with its terms.</p> <p>2. The plaintiff cannot recover in a suit where he avers in his pleadings a cause of action in one party and proves a right to recover in another party.</p>

<p>Receivers — Accounts — Exceptions—Touching account.</p> <p>1. An order refusing a request that the accounts of a receiver be vouched by the court, will not be reversed where it appears that the account contained hundreds of items, and that although warned by the court to file specific exceptions, the exceptants had only filed an exception of a general character.</p> <p>2. Exceptions to the payment of compensation to persons employed by a receiver will not be sustained where it appears that the person employed was so employed by an order of court from which no appeal was taken, and that the compensation was not improper.</p> <p>3. An exception to the account of a receiver raising questions as to the propriety of sales made by him, will not .be sustained where it appears that such .sales had been made by order of court and thereafter confirmed without any appeal taken from the decree confirming the sale.</p> <p>4. Exceptions to an allowance claimed by a receiver as counsel fees and for his own compensation will not be sustained where no abuse of discretion in the court below is shown.</p> <p>. 5. Where a receiver has purchased the property of the trust 'estate by leave of court, and after the sale to him has been con-firmed, operated it on his own account and afterwards organized a corporation for that purpose, no question can be raised at the audit of bis account as to bis conduct of tbe business after tbe sale of tbe property to bim bad been confirmed.</p> <p>Appeals — Assignments of error — Decrees.</p> <p>6. An assignment of error to an order or decree, -without quoting tbe order or decree of which complaint is made, is incomplete, and will not be considered.</p>

Appeal, No. 54, Jan. T., 1912, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1911, No. 17, on verdict for defendant in case of Helena Bobson, by her next friend Edward Robson, v. Lehigh Talley Railroad Company. Trespass to recover damages for the death of plaintiff’s husband. Before Stewart, J. The circumstances are narrated in the opinion of the Supreme Court. At the trial the court gave binding instructions for defendant. Verdict and judgment for defendant.

Appeal, No. 136, Jan. T., 1911, by Pennsylvania Stave Company, from decree of C. P. Bradford Co., Sept. T., 1910, No. 220, dismissing assessment from tax settlement. Appeal from tax settlement. Before Fanning, P. J. From the record it appeared that the Pennsylvania Stave Company leased certain land in 1903 from the Elk Tanning Company and the Union Tanning Company, and erected thereon a manufacturing plant consisting of a saw mill, houses, barn and sheds.

Appeal, No. 117, Jan. T., 1912, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1909, No. 119, on verdict for plaintiff in case of Flossie M. Sheldon Madden v. Lehigh Valley Railroad Company. Trespass to recover damages for the death of plaintiff’s husband. Before Cameron, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,750. Defendant appealed.

Appeal, No. 253, Jan. T., 1911, by defendant from judgment of C. P. Bradford Co., Sept. T., 1909, No. 265, on verdict for plaintiff in case of Albert L. Kelley v. Lehigh Valley Railroad Company. Trespass to recover damages for personal injuries, sustained by an alleged assault by one of defendant’s brakemen. Before Fanning, P. J. The facts are stated in the opinion of the Supreme Court. The jury returned a verdict for plaintiff for $2,000.

Appeal, No. 21, Jan. T., 1912, by defendant, from judgment of C. P. Bradford Co., May T., 1910, No. 418, on verdict for plaintiff in. case of Otis W. Shoemaker v. Lehigh Valley Railroad Company. Trespass to recover damages for personal injuries.

Appeal, No. 3, Jan. T., 1912, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1911, No. 3850, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles M. DeForest v. Northwest Townsite Company. Assumpsit to recover damages for breach of a contract to employ the plaintiff for a stated period.

<p>Appeal, No. 111, Jan, T., 1911, by defendant, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1907, No. 5303, on verdict for plaintiff in case of Carrie S. Wright, Administratrix of the Estate of Robert E. Wright, Jr., deceased, and Carrie S. Wright, individually, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for .personal injuries. Before Wiltbank, J.</p> <p>At the trial after the plaintiff had proved the fact of collision and the injury to the plaintiff, the defendant’s counsel announced that the defendant would admit the liability. The plaintiff then offered medical evidence, after which the court charged in part as follows:</p> <p>“I was strongly inclined when I began to charge you to instruct you that, as this was so grave a case of gross negligence, you might find punitive damages, which would be damages in the nature of punishment of this company for a gross assault upon the safety of the woman, with no reparation since, and the holding of her in jeopardy, as it were, three years and two months before she can get her remedy from you. I instruct you that that is not to impress you at all. I say, I at one time thought I should so charge you, but I do instruct you that if under the evidence, confining yourselves entirely to the evidence, you believe this to have been a wilful and wanton collision, you may charge them with punitive damages. You must as judges of the facts be very calm and temperate in considering the point. You must be entirely without feeling, and if, viewing all the evidence and the evidence alone, you come to the conclusion that this was wilful and wanton, you may find an award to the woman of damages which we call punitive, that is to say, in excess of compensatory damages. If you do not so find it will be your duty to allow her only fair and reasonable compensation under the instructions which I have given you as to the items.”</p> <p>Verdict and judgment for Carrie S. Wright for $10,000 and verdict for Robert E. Wright for $1,000, upon which judgment was entered for $500, all above that amount having been remitted. Defendant appealed.</p> <p>Error assigned was portion of charge quoted above.</p>

Appeal, No. 45, Jan. T., 1912, by William Richardson, from decree of O. C. Phila. Co., dismissing exceptions to adjudication in Estate of William Richardson, deceased. Exceptions to adjudication. From the record it appeared that on May 12, 1906, William Richardson assigned by writing duly witnessed, his contingent interest in his grandfather’s estate to John Lloyd. At the time of the assignment this interest was subject to prior liens aggregating $32,000.

<p>Appeal, No. 86, Jan. T., 1912, by the City of Philadelphia, from order of C. P. No. 3, Phila. Co., June Term, 1894, No. 1609, dismissing exceptions to report of referee In re Widening of State Road, Thirty-fifth Ward.</p> <p>Exceptions to report of Harold B. Beitler, Esq.</p> <p>The opinion of the Supreme Court states the ease.</p> <p>Errors assigned were in dismissing exceptions to report of referee.</p>

<p>Assignment — Insurable policy — Assignment to secure debt— Future indebtedness — Collateral security.</p> <p>1. An assignment as collateral security should be strictly construed.</p> <p>2. An assignment of a policy of insurance “as collateral security for indebtedness” covers only a present indebtedness existing at the time of the assignment and not indebtedness to be created in the future.</p> <p>3. Where an insured assigns endowment policies on his life “as collateral security,” and the indebtedness in existence at the date of the assignment is subsequently paid, the fact that the assignee continued to hold the policies until they became due and were paid, is not proof that the assignment was intended to cover indebtedness created after the date thereof. The assignee had a right to retain the policies until the premiums advanced by him had been paid.</p>

<p>Appeal No. 310, Jan. T., 1911, by defendant from order of C. P. No. 1, Phila. Co., March T., 1908, No. 5443, dismissing motion for judgment in case of Lazar Lipsky v. Charles Stolzer.</p> <p>Trespass to recover damages for personal injuries.</p> <p>Motion for judgment upon the whole record.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing motion for judgment.</p>

<p>Contract — Time as essence of contract — Waiver — Vendor and vendee.</p> <p>1. The right to insist upon time as the essence of a contract may be waived as effectually by implication as by express agreement, and whether there has been an implied waiver in any case depends upon whether the conduct of the party seeking to invoke the strict provision of the contract had been such as to lead the other party to believe he would not be held to it, but might, notwithstanding it, proceed to perform.</p> <p>2. By a contract in writing dated May 11, 1906, plaintiffs agreed to sell land to the defendant. The contract provided that “The taxes and rents to be apportioned to the date of settlement which is to be within three months from this date, and time, it is hereby agreed, shall be of the essence of this contract.” By a later, writing dated August 4, 1906, the time for settlement was extended to September 20, 1906. On account of certain legal proceedings, which were necessary, the deed was not executed until November 3, 1906, and was not tendered until some months thereafter. There was evidence of acts and conduct not only of the defendant, but also of his authorized attorney after September 20, 1906, which were inconsistent with an intention on the part of the defendant to hold the plaintiffs to strict compliance with the contract, and indicated to them that he would still perform if they would. Held, in an action for breach of contract that the question of defendant’s waiver of the time limit was for the jury.</p> <p>3. In an action for the breach of a contract to sell land, where the contract was signed by the defendant himself, and there is no disclosure of any other person in interest than the defendant, it is proper for the trial judge to refuse to permit the defendant to show that he had no beneficial interest in the purchase of the property; nor is it error for the trial judge to refuse to permit the defendant to show that immediately after the execution of the contract he assigned it to another person, where there is no offer to prove notice of such assignment to the other parties, and where tbe evidence, if admitted, would contradict a later act of the defendant in signing an extension agreement.</p>

Appeal No. 156, Jan. T., 1912, by defendant from judgment of C. P. Schuylkill Co., Sept. T., 1909, No. 381, on verdict for plaintiff in case of Charles Host v. Ashland Borough. Trespass to recover damages for personal injuries to a little girl ten years old. Before Shay, P. J. The facts are stated in the opinion of the Supreme Court.

Appeal No. 27, Jan. T., 1912, by defendants from judgment of C. P. Lackawanna Co., March T., 1908, No. 983, on verdict for plaintiff in case of Merritt & Company v. Sylvester Z. Poli, with notice to Frank Ricca, Contractor. Scire facias sur mechanics’ lien. Before Edwaeds, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for 1(10,836.11. Defendant appealed.

<p>Equity — Subrogation — Payment by volunteer — Mortgage.</p> <p>1. The doctrine of subrogation rests fundamentally on the equitable principle that when a party is required to pay a debt for which another is also liable and which that other in good conscience ought to pay, such payment should operate to invest the party paying with the creditor’s rights and remedies against the other debtor.</p> <p>2. Subrogation can be invoked only for the protection of one who has paid the debt of another because he had made himself legally liable in connection therewith. When under no liability himself in connection with the debt he voluntarily pays it, no equity can arise from the transaction calling for protection. In such case payment extinguishes the debt, except as the creditor received the money upon the understanding that the debt is to be assigned to the party paying. In such case the transaction being one of purchase, and not payment, the debt survives.</p> <p>3. Where a corporation purchases real estate from two of its stockholders, and assumes the payment of a purchase money mortgage previously given by such stockholders, and subsequently executes a second mortgage, on which it defaults, and thereafter foreclosure proceedings are instituted on the first mortgage to the use of certain stockholders and directors other than the two who had sold the land to the company, who had bought the mortgage, the company in tendering payment of the amount due cannot make as a condition of such payment that the use plaintiffs shall assign the mortgage to a bank which was advancing the money; and if it pays the money into court, it cannot, after the money has been distributed, compel the use plaintiff by rule to make such an assignment.</p> <p>4. In such a case, with the ultimate liability resting upon the corporation, no payment by it of the mortgage could give rise to an equity calling for subrogation, for its payment was of its own debt for which it was ultimately liable.</p> <p>5. Where in such a case the bank was an entire stranger to the whole transaction without any liability in connection therewith and paid the mortgage at the request of the company, it is a mere volunteer, and no other or higher equity resulted than would have resulted to the company had it paid the debt with its own funds.</p> <p>6. In such a case the alleged fact that the officers and stockholders who had bought the mortgage had done so for the purpose of seizing the company’s property for their own use, is wholly irrelevant, inasmuch as they are not asserting any equity, but standing on their legal rights as creditors. The case must be determined not according to their equities, but according to the equities asserted by their opponents, and as it appears that the latter had no equity to subrogation nr otherwise, the case is necessarily at an end.</p>

Appeal, No. 231, Jan. T., 1911, by George A. Heckman, Executor of William A. Heck-man, deceased, from decree of O. C. Berks Go., Jan. T., 1911, No. 31, enforcing specific performance in Estate of William A. Heckman, deceased. Petition by vendee for specific performance of contract to sell real estate. Before Bland, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was the decree of tbe court.

<p>Appeal No. 58, Jan. T., 1912, by defendants from decree of C. P. Berks Co., Equity Docket, 1911, No. 1053, on bill in equity in case of City of Reading v. Reading Transit Company, United Traction Company and Front and Fifth Street Railway Company.</p> <p>Bill in equity for an injunction. (See Reading v. United Traction Co., 232 Pa. 303.)</p> <p>Endlich, P. J., found the facts to be as follows:</p> <p>1. In 1906 the entire street railway system of the city of Reading, made up of a number of lines belonging to independent companies, was, under leases executed by them to the United Traction Co., operated as a whole by the latter, including a line on Front and certain other streets belonging to the Front & Fifth Street Railway Co., and another on Schuylkill avenue belonging to the Reading City Passenger Railway Co.</p> <p>2. Complaints made to the city authorities by residents in the vicinity of a turn-out on Schuylkill avenue near Buttonwood street about the noise occasioned at night by the reversing of cars were by those authorities brought to the attention of the United Traction Co., with a request to have the nuisance remedied.</p> <p>3. In response to this the city was by Dr. Walter A. Rigg advised, not only that the cause of complaint would, as far as practicable, be abated, but that it might be entirely removed and at the same time the convenience of the traveling public greatly enhanced by the construction, with the city’s permission, of a track connecting the two lines of railway above mentioned along and upon two intervening blocks of Windsor street, the two lines thus connected forming a so-called “loop.”</p> <p>4. This suggestion being reported to the City Councils, the matter was referred to the Railway Committee for consideration. Between it and Dr. Rigg as representing the railway companies interested there were various consultations and communications, — among the latter a letter from Dr. Rigg to the chairman of the committee, dated Oct. 6, 1906, and written upon the letter-head of the United Traction Co., in which, in the event of the grant of permission to construct the “loop,” it was stated (1) that the turn-out should be removed, (2) that there should be “no increase of fare,” and (3) that the “fare limit” should be Buttonwood street, a single fare carrying a passenger from any part of town to any point on Schuylkill avenue or around the “loop” to Front and Buttonwood streets, and as to incoming passengers a single fare being good from Schuylkill avenue and Buttonwood street and points beyond, around the “loop” to any part of the city, — the fare charged at the time by the United Traction Co. for a single trip on any part of its system being 5 cents or a ticket obtainable at the option of passengers by purchase from the conductors on the cars in strips of 6 tickets costing 25 cents.</p> <p>5. The committee on Oct. 7, 1906, largely actuated by the letter just adverted to, reported to councils upon the matter referred to it as one between the city and the United Traction Co., recommending the grant of permission to make the connection suggested as above detailed and the passage of an ordinance for that purpose. Accompanying the report was the draft of an ordinance handed to the committee by Dr. Bigg, and so drawn as to grant the privilege in question to the Front & Fifth Street Bailway Co., it having been explained to the committee by Dr. Bigg that the United Traction Co. was an operating and not a constructing company, and that therefore the grant must be made to the former. The ordinance was in due course passed with the addition of certain provisions, among which was that embodied in Sec. 2 thereof, viz, “That the rate of fare shall not exceed five (5) cents for a single fare, or six tickets for twenty-five (25) cents,” — and as passed was approved Dec. 8,1906.</p> <p>6. Within a few days thereafter the Front & Fifth Street Bailway Co. filed in the office of the city clerk its formal acceptance, required by the ordinance, of the same and “all the conditions thereof.” Thereupon the connecting line was constructed -and at once passed under the control and operation of the United Traction Co. The stipulations contained in the letter of Oct. 6, 1906, relative to the removal of the turn-out on Schuylkill avenue, the fare limit and the fare itself were carried out, the United Traction Co. accepting for a single fare from Schuylkill avenue and Buttonwood street around the “loop” to any part of the city 5 cents in cash or one of 6 tickets sold in strips for 25 cents.</p> <p>7. Throughout the negotiations and transactions above detailed the city of Beading conceived itself to be dealing with the United Traction Co., as the company in control of the entire street railway system, representing the underlying corporations and in the operation of the system to be perfected by the “loop” agreeing to be bound by tbe stipulations and conditions inducing and attached to tbe grant of permission to construct it.</p> <p>8. Tbe precise official connection of Dr. Rigg with tbe United Traction Co. and its lessor corporations, including tbe Front & Fifth Street and tbe Reading-City Passenger Railway Cos., is not established by tbe evidence. Whilst apparently not existing or defined by any explicit employment of him as an agent with designated powers of any of these companies, tbe fact nevertheless is that in tbe transactions and negotiations concerning tbe “loop,” as well as in other previous matters, be, with their knowledge and acquiescence, acted as tbe general representative of tbe United Traction Co., and through it of its various lessor corporations, in their dealings with tbe city; that bis authority in every instance and particular so to act was implicitly ■ recognized by all said companies as well as assumed by tbe city; and that tbe United Traction Co. and tbe Front & Fifth Street and Reading City Passenger Railway Cos. accepted tbe benefits and advantages secured for them from tbe city by him upon the faith of tbe representations, stipulations and conditions made or agreed to by him in their behalf.</p> <p>9. About March 18, 1910, tbe United Traction Co. discontinued tbe sale of strip tickets over its entire system, collecting a straight 5 cent fare from passengers, tbe fare limit above mentioned remaining unchanged. On March 21, 1910, tbe mayor of tbe city addressed to the president of said company a letter calling bis attention to tbe alleged duty of tbe company to sell strip tickets over its entire system, requesting compliance therewith, and advising him of tbe city's purpose in tbe contrary event to institute proceedings to compel it. Tbe answer of tbe president of tbe company to this letter, dated tbe same day, denied tbe existence of tbe duty on tbe basis of Dr. Rigg's letter of Oct. 6, 1906. Thereupon, on March 30, 1910, tbe city filed a bill to compel the sale of tickets over all the railway lines in the city. After its dismissal by the Supreme Court, July 6,1911, this bill was filed on Sept. 22, 1911.</p> <p>10. By a 999 year lease dated as of Apr. 1, 1910, acknowledged May 5, 1910, and recorded Aug. 17,1910, the United Traction Co. leased its entire street railway system, including the “loop,” to the Reading Transit Co. At the date of the filing of this bill the company in actual control of the street railways in the city of Reading, and operating them, was the Reading Transit Co.</p> <p>11. The operation of the “loop” in connection with the remainder of the system is as follows: cars leaving the car-barn on North Ninth street come in Ninth to Penn, down Penn to Fourth, out Fourth to Washington, down Washington to Front and Schuylkill avenue, out Schuylkill avenue and around the “loop” over the tracks of the Front & Fifth Street Railway Co. to Front and Schuylkill avenue, in Washington to Second, in Second to Penn, up Penn to Tenth and out Tenth to the car-barn, — or from Second up Penn to Nineteenth and Perkiomen avenue, and thence starting another circuit down Penn to Fourth, etc. In either case the circuit, covered by two fares, is about 7 miles, the trip in one direction covered by one fare being about 3¡H> miles, of which 5,850 feet are over tracks of the Front & Fifth Street Railway Co., and about 1,300 of this distance over the extension authorized by the ordinance of Dec. 8, 1906.</p> <p>12. The travel beginning and ending upon the Front & Fifth Street line is insignificant; that beginning at Schuylkill avenue and Buttonwood street, or points beyond, and ending at points along Penn street or beyond, very heavy.</p> <p>LEGAL CONCLUSIONS.</p> <p>A — The suggestion of the construction of the “loop” as something to be permitted by the city of Reading having been made by Dr. Rigg in the interest, not only of the Front & Fifth Street Railway Co., but also of the United Traction Co. as the company operating the entire street railway system of the city and with a view to its more convenient operation, — the negotiations relative thereto with the city authorities having been conducted by him in the interest of both companies with their acquiescence, — the city having treated him and with him as their authorized representative therein and acted upon his statements and promises as made in their behalf, — said companies having accepted the fruits of his dealings and negotiations and representations with and to the city, and at the time and for a number of years thereafter treated them as binding, — and the president of the United Traction Co., having subsequently so recognized his undertakings, — neither company can now be heard to dispute, on the ground of want of antecedent authority in him to represent said companies, either the fact that from the inception of said negotiations, etc., he did represent them and that through him as their representative they were both parties to said negotiations, etc., or the binding force as to both of any undertakings made by him on their behalf in the premises, which entered as an inducement into the grant of the privilege to construct the “loop.”</p> <p>B — In the light of the nature and scope of said undertakings, the circumstances surrounding the introduction and passage of the ordinance approved Dec. 8, 1906, the situation of the several parties concerned, and the manifest objects aimed at, the grant by the city of Reading of permission to construct the “loop” must be regarded as a transaction not only between the city and the Front & Fifth Street Railway Co. as the constructing company, but also between the city and the United Traction Co. as the company operating the entire street railway system of the city including the “loop,” and the terms and provisions of said ordinance are to be understood and given effect accordingly.</p> <p>C — So understood, the grant of said permission and the acceptance of the terms thereof involved a contract between both said companies and the city to the effect that in the operation of the railway lines including the one circuit the extension perfecting the “loop,” the fare-limit should be the intersection of Schuylkill avenue and Buttonwood street; that a fare paid at that point or any point beyond should entitle the passenger to carriage to any part of the city reached by the car on which it was paid or any to which he might be transferred; that such fare should be, at the option of the passenger, 5 cents cash or one of 6 tickets to be sold him on the car for 25 cents; that payment of his fare by ticket should entitle him to the same transportation as payment by 5 cents in cash; and that this contract established a condition of the grant of the permission to construct the “loop,” to be performed in its operation, as such accepted by the Front & Fifth Street Railway Co. and impliedly assented to by and obligatory upon any company operating said line, immediately or mediately under the Front & Fifth Street Railway Co., in connection with any portion of the remainder of the street railway system of the city, with said “loop” forming and operated as a continuous circuit, and therefore binding upon the Reading Transit Co.</p> <p>D — The plaintiff is entitled to a decree enforcing the contract and condition mentioned in the foregoing conclusion in accordance with their terms and effect as there stated and with prayers I and 2 of plaintiff’s bill.</p> <p>E — The costs of this proceeding are to be paid by defendants.</p> <p>Error assigned was decree in favor of the plaintiff.</p>

<p>Appeal No. 230, Oct. T., 1911, by plaintiff from decree of C. P. No. 1, Allegheny Co., June T., 1908, No. 838, dismissing bill in equity in case of William J. Crawford v. Dollar Savings Fund & Trust Company.</p> <p>Bill in equity for an injunction and for the delivery of certificates of stock. Before Macfarlane, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was decree dismissing the bill.</p>

Appeal, No. 325, Jan. T., 1912, by the Commonwealth of Pennsylvania, from decree of O. C. Phila. Co., April T., 1911, No. 739, dismissing exceptions to adjudication in Estate of Anna Maria Helena (Countess de Noailles) deceased. Exceptions to adjudication. The facts are stated in the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to adjudication.

<p>Appeal No. 14. Jan. T., 1912, by defendant from judgment of C. P. No. 2, Phila. Co., Dec. T., 1909, No. 835, on verdict for plaintiff in case of Josephine E. Rist v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Wiltbank, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned, among others, was answer to defendant’s point quoted in the opinion of the Supreme Court.</p>

Appeals Nos. 67, 68 and 69 by defendant, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1911, Nos. 99, 1000 and 1001, awarding writs of mandamus in case of Commonwealth ex rel. Millard Construction Co. and McNichol Paving & Construction Co. v. John M. Walton, Controller of the City of Philadelphia. Demurrers to return to alternative writs of mandamus.

Appeal, No. 94, Jan. T., 1912, by defendant, from decree of C. P. No. 3, Phila. Co., Sept. T., 1911, No. 1680, on bill in equity in case of Lindsay Brothers, Incorporated v. The Curtis Publishing Company. Bill in equity for an injunction. The facts are stated in the opinion of the Supreme Court. The court below found, inter alia, the following conclusions of law: “1.

Appeal, No. 102, Jan. T., 1912, by plaintiffs, from judgment of C. P. No. 5, Phila. Co., Sept. T., 1911, No. 5059, for defendant on case stated in suit of Anna M. Lefebvre, et al., v. Joseph D’Arcy. Case stated to determine marketable title to real estate. Before Ralston, J. Tbe facts are stated in tbe opinion of the Supreme Court. Error assigned was in entering judgment for defendant on case stated.

Appeal, No. 97, Jan. T., 1912, by defendant, from judgment of C. P. No. 2, Phila. Co., Sept. T., 1907, No. 2070, on verdict for plaintiff in case of Charles W. Wolf, Jr. a minor child by his father and next friend, Charles W. Wolf, Sr., and Charles W. Wolf, Sr., v. C. Schmidt & Sons Brewing Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 104, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1908, No. 2000, on verdict for defendant in case of Catherine Keenan, Administratrix of Estate of John A. Wolf, deceased, v. William M. Lloyd & Co.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for the defendant. Plaintiff appealed.</p>

<p>Appeal, No. 188, Jan. T., 1911, by plaintiff, from order of C. P. No. 1, Phila. Co., March T., 1908, No. 1270, refusing to take off nonsuit in case of Joseph Severino by his father and next friend, Alearco Severino and the said Alearco Severino in his own right v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

Appeals, Nos. 315, 316 and 317, by Eugene Raymond, George J. Graham and Jennie F. Graham, from decree of O. C. Phila. Co., July T., 1909, No. 41, awarding injunction in Estate of John R. Williams, deceased. Petition for restraining order. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 157, Jan. T., 1911, by Clara Huddy Fagan, from decree of O. C. Pbila. Co., April T., 1897, No. 359, modifying adjudication in Estate of Emma Huddy, deceased. Exceptions to adjudication.

<p>Negligence — Railroads — Passengers—Hand-bag in car aisle— Nonsuit.</p> <p>In an action by a passenger against a railroad company to recover damages for personal injuries sustained from falling over a hand-bag that stood at the side of the passageway of a car, a nonsuit is properly entered where the evidence shows that the car was somewhat crowded and dimly lighted; that the plaintiff did not see the hand-bag before her foot struck it, but saw it as she fell, and that there was no proof that the trainmen knew that the bag was in the passageway, nor that it had been there for such a length of time as to charge them with notice.</p>

<p>Appeal, No. 294, Jan. T., 1911, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1900, No. 408, on verdict for plaintiff in case of Robert E. Patterson to the use of Mary H. Elmer, Roberta Patterson and Frank E. Patterson v. Caroline A. Hughes.</p> <p>Scire facias sur mortgage. Before Fuller, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict by direction of the court for $10,180 on which judgment was subsequently entered for $5,832.88. Defendant appealed.</p> <p>Errors assigned, were the rejection of Cyrus Houghton and the defendant as witnesses.</p>

<p>Appeal, No. 88, Jan. T., 1912, by plaintiffs, from judgment of C. P. Luzerne Co., Oct T., 1900, No. 408, in verdict for plaintiff in case of Robert E. Patterson to the use of Mary H. Elmer, Robert Patterson and Prank E. Patterson v. Caroline A. Hughes, now intermarried with William C. Sponsler.</p> <p>Scire facias sur mortgage. Before Fuller, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in deducting from the verdict the sum of $2,100 with interest thereon.</p>

<p>Contract — Building contract — Delay — Affidavit of defense.</p> <p>In an action to recover a balance alleged to be due on a building contract, an affidavit of defense is sufficient which sets up that the building had not been completed within the contract time; that defendant was entitled to a sum stated as liquidated damages for delay as provided by the contract, and that the defendant, a bank, was prevented by the delay from beginning business and obliged to carry salaried officers whose services were nonproductive because of the lack of a building.</p>

<p>Constitutional law — Republican form, of government — Taxation • — Representation — Classification of school districts — Title of act— School law — Act of May 18,1911, P. L. 809.</p> <p>1. Where an act has been the product of the deliberate thought of a commission of prominent citizens of the Commonwealth who have worked upon it for several years, and has been passed by two legislatures after prolonged consideration before final approval by the governor, the appellate court will not set it aside as unconstitutional unless the breaches of the fundamental law are so glaring that there is no escape.</p> <p>2. The establishment, maintenance and support of a system of common schools having been imposed upon the legislative department of the government, it must employ agencies to accomplish that object and the manner of their selection is peculiarly within' its discretion. Thus the legislature may provide that school directors shall be appointed by the judges, and that when so appointed they may levy taxes for the support of the common schools. When the legislature provides such a system of taxation to be enforced by its agents thus selected, it is a direct assertion and not a delegation of power.</p> <p>3. The Act of May 18, 1911, P. L. 309, called the School Code does not offend against the provision of the Constitution of the United States which guarantees to every state a republican form of government, and against the principle that taxation and representation must go together.</p> <p>4. The provision in Section 524 of the Act of May 18, 1911, P. L. 309, that the taxing power in districts of the first class is to be exercised by nonelective boards is more apparent than real, inasmuch as the legislature itself has practically fixed the tax levy at a maximum of six mills, and simply leaves to its agents the privilege of collecting not less than five mills in any one year.</p> <p>5. The provisions of the Act of May 18, 1911, P. L. 309, dividing the state into school districts according to population, and directing that in districts of the first class the directors or board of public education shall be appointed by the courts is not an improper or unconstitutional exercise of legislative power.</p> <p>6. The courts in passing upon the validity of such an act as the School Code of May 18, 1911, P. L. 309, may determine that the act is constitutional in general without declaring minor provisions of the act unconstitutional, if the question of the constitutionality of such minor provisions is not raised directly in the ease under consideration.</p> <p>7. The Act of May 18, 1911, P. L. 309, does not violate Art. Ill, See. 3, of the Constitution of Pennsylvania as being defective in title; nor in the provisions requiring the judges of the Common Pleas to appoint the school directors in districts of the first class, does it violate Sec. 26, of Article V, of the Constitution, which ordains that all laws relating to courts shall be general and of uniform operation.</p> <p>Brown, Mestrezat and Stewart, JJ., dissent.</p>

<p>Appeal No. 137, Jan. T., 1911, by plaintiff, from judgment of C. P. Luzerne Co., Dec. T., 1903, No. 58, on verdict for defendant in case of Hortense L. Bahny v. Eva J. Levy, Executrix of Leon Levy, Deceased.</p> <p>Assumpsit for money had and received. Before Lynch, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were in giving binding instructions for the defendant and in various rules respecting offers of evidence by plaintiff.</p>

Appeal, No. 128, Jan. T., 1912, by defendant from decree of C. P. Luzerue Co., Oct. T., 1910, No. 8, on bill in equity for an injunction in case of Trustees of the Proprietors of Kingston v. Lehigh Valley Coal Company. Bill in equity for an injunction. The opinion of the Supreme Court states the case. Error assigned was the decree of the court.

Appeal No. 203, Oct. T., 1911, by defendant from judgment of C. P. Cambria Co., March T., 1910, No. 71, on verdict for plaintiff in case of Sberman M. Smith v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before O’Connior, P. J. At the trial it appeared that the plaintiff, a car repairer, was injured in the defendant company’s repair yard in Altoona, on December 28, 1908.

Appeal No. 142, Jan. T., 1911, by defendant from judgment of C. P. Blair Co., March T., 1911, No. 188, on verdict for plaintiff in case of Harry L. Thomas and Amnie Jane Thomas, his wife, v. Altoona & Logan Valley Electric Railway Company. Trespass to recover damages for personal injuries. Before Shull, P. J., specially presiding. At the trial it appeared that the plaintiff, Annie J. Thomas, was injured on June 4, 1909, while attempting to get on one of defendant’s cars.

<p>Appeal No. 270, Jan. T., 1911, by plaintiff from judgment of C, P, Blair Co.? Jqne T,? 1909, No. 184, for defendant on case stated in suit of James Alexander Briggs, a minor by Jane Keating as his next friend, v. Carl O. Caldwell, Matilda Clark and Alfred Clark, her husband, and John D. Caldwell.</p> <p>Case stated in ejectment.</p> <p>Baldridge, P. J., stated the facts to be as follows:</p> <p>An action of ejectment was brought by the plaintiff against the defendant to recover the one-fifth interest in a tract of land in Blair and Frankstown townships, Blair county, containing 92.97 acres. The plaintiff, a grandson of Frances Caldwell Milliken, claimed title to the premises under the will of David Caldwell. The parties to the action agreed upon the facts in a case stated, and stipulated that if Frances C. Milliken received under the will of her father, David Caldwell, an estate in fee simple, judgment should be entered for the plaintiff, but if Frances C. Milliken took a life estate under said will, then judgment should be entered for the defendants.</p> <p>That portion of the David Caldwell will which has bearing upon the question in dispute is as follows:</p> <p>“Second. I devise to the trustee of my daughter, Frances Milliken, for her use and benefit, the brick house and lot of ground on Mulberry street, Hollidaysburg; also the book-case and books in my front parlor. Also the one-half of all my household and kitchen furniture. Also the sum of five hundred dollars in cash.</p> <p>“Third. I give and bequeath to the children of my son John the brick house and lot of ground on which I now reside. Also the old tannery, together with tools and fixtures, sheds, etc., with the right of egress and ingress as at present. Also the out-lot adjoining the river, with stable, etc. Also the one-half of all my household and kitchen furniture. Also the sum of five hundred dollars, to be equally divided between them, share and share alike, the property bequeathed to my grand-children not to be sold or partitioned out until after the youngest child is twenty-one years of age.</p> <p>“Fourth. All the remainder of my estate, after the aforesaid, I bequeath and devise as follows: To the trustee of my daughter Frances, for her use, and to the children of my son John, deceased, share and share alike. That is to say, one-fifth to my daughter Frances’s trustee, for her use, one-fifth to my grandson, David Caldwell, Jr., one-fifth to Matilda Caldwell, one-fifth to John D. Caldwell, and one-fifth to Carl Caldwell.</p> <p>“Fifth. I hereby appoint John Dean, Esq., of Hollidaysburg, trustee for my daughter Frances, with full power to sell and receive moneys, retain and pay to her her portion of my estate in accordance with this will and as he may think best. Also to have power to sell real estate and make deeds for same.</p> <p>“Sixth. After the death of my daughter Frances, I direct that whatever remains of real estate or personal property be divided equally between the children of my son John, share and share alike.” .</p> <p>The attorney for plaintiff contends that Frances Milliken, daughter of the testator, was the primary object of his bounty; that she was the first taker, and under the fourth paragraph in the will she received an absolute estate, which could not subsequently be reduced to a life estate; furthermore, that her trustee had the right to consume, sell and dispose of her estate, and that, therefore, she was entitled to a fee.</p> <p>The court entered judgment for defendants on the case stated.</p> <p>Error assigned was the judgment of the court.</p>

Appeal No. 112, Jan. T., 1912, by plaintiff, from order of C. P. Blair Co., Oct. T., 1900, No. 53, refusing to take off nonsuit in case of Albert P. Sharp, now for use of Gertrude M. Sharp v. Isabelle Levan, Executrix of John P. Levan. Assumpsit for breach of contract. Before Baldrige, P. J. The facts are stated in the opinion of the Supreme Court. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

<p>Appeal No. 35, Jan. T., 1912, by plaintiff, from judgment of C. P. Huntingdon Co., Dec. T., 1910, No. 4, on verdict for defendant in case of Ella B. Spyker, Executrix of the Will of G. N. Spyker, deceased, v. E. R. Wible, W. L. Johnston and J. K. Wiley, Commissioners of Huntingdon county.</p> <p>Issue on appeal from report of county auditors. Before Woods, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendant by direction of the court.</p> <p>Error assigned was in giving binding directions for defendant.</p>

Appeal No. 147, Oct. T., 1911, by plaintiffs, from judgment of C. P. Greene Co., March T., 1910, No. 125, on verdict for defendants in case of Carrie H. Collins et al. v. William S. Phillips et al. Ejectment for land in Cumberland township. Before Ingraham, P. J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for defendants. Plaintiffs appealed.

<p>Road law — Ordinance — Repeal of ordinance — Opening street.</p> <p>1. An ordinance of a city of tbe second class repealing an ordinance authorizing tbe opening of á street, is not invalid because it was passed both by tbe common and select council on tbe same day, if it appears that it was introduced on a prior day and signed by the mayor on a subsequent day. Tbe repealing ordinance does not violate in these respects either tbe Act of May 23, 1874, P. L. 230, or tbe Act of March 7, 1901, P. L. 20.</p> <p>2. Such an ordinance is not invalid because it was not signed by the presidents of tbe two branches of council, and by tbe clerk of tbe common council under the special acts relating to tbe city of Pittsburgh of April 6, 1867, P. L. 846 and April 1, 1868, P. L. 565, inasmuch as tbe Act of March 7, 1901, P. L. 20, relating to tbe government of cities of the second class, repealed tbe special acts. If an engrossed copy of the ordinance was certified by the clerk of tbe select council and transmitted to tbe mayor, everything was done that was necessary.</p> <p>3. An ordinance repealing an ordinance authorizing tbe opening of a street is not a proceeding to vacate the street.</p> <p>4. A city will not be presumed to have entered upon and opened a merely located street, because in tbe improvement, grading, curbing and paving of streets which crossed tbe line of tbe located street turnouts were made, if it appears that none of such turnouts went beyond tbe line of tbe cross street which was being improved.</p>

Appeal, No. 89, Jan. T., 1912, by Charles O. Sheer, et al., from decree of O. C. Carbon Co., dismissing exceptions to auditor’s report in estate of Charles O. Sheer, deceased. Exceptions to report of Jacob C. Loose, Esq., auditor. Before Heydt, P. J. The facts are stated in the opinion of the Supreme Court. Errors assigned were in dismissing exceptions to auditor’s report.

Appeal, No. 93, Jan. T., 1912, by defendant, from judgment-of O. & T., Phila. Co., Sept. T., 1911, No. 568, in verdict of guilty of murder of the first degree in case of Commonwealth v. Arnie Johnson. Indictment for murder. Before Stewart, P. J., specially presiding. At the trial the jury returned a verdict of guilty of murder of the first degree, upon which sentence was passed. Defendant appealed. Errors assigned were as follows: 1.

Appeal, No. 96, Jan. T., 1912, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1911, No. 2445, making absolute rule for judgment for want of a sufficient affidavit of defense. Assumpsit to recover the value of a quantity of celery accepted by the defendant for cold storage. The opinion of the Supreme Court states the case. Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

<p>Road law — Township roads — Maintenance of road.</p> <p>A township in a rural district is under no duty to keep its roads for the full width at which they are laid out, smooth, and safe and convenient for public travel. The rule applicable to streets in towns and cities does not apply to roads in the rural districts.</p>

<p>Executors and administrators — Promissory notes — Issue to determine validity of notes held by administrator.</p> <p>1. Where at the audit of an administrator’s account he presents notes to his own order made by the decedent, the validity of which is denied by other parties in interest, and an issue demanded, the grant of the issue is not of right but is a matter within the discretion of the Court.</p> <p>Auditors — Findings of fact — Promissory notes — Evidence.</p> <p>2. An auditor’s finding of fact based upon sufficient evidence and affirmed by the Orphans’ Court that certain promissory notes were valid and just claims against the estate of a decedent, will not be reversed by the appellate court in the absence of manifest error.</p>

<p>Negligence — Boroughs — Icy sidewállcs — Contributory negligence.</p> <p>1. A municipality is not liable for an injury caused by the slippery condition of a pavement resulting from natural causes such as the recent formation of ice, but it may be held liable where ridges of ice are allowed to form and remain for an unreasonable time after notice actual or constructive.</p> <p>2. In an action by a woman against a borough to recover damages for personal injuries sustained from a fall at night on an icy pavement on a street of the borough, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where the evidence showed that the plaintiff fell on a ridge of ice from four to six inches high, extending across the pavement from house line to curb and somewhat obscured by a slight fall of snow; that the condition had existed for several weeks, although not known to the plaintiff because she had not been on the street for a week; that snow was piled up at the edge of the pavement to such a height as to make it difficult to go into the street; and that plaintifE assumed, as she wore good rubbers, she could walk with safety close to the curb where the ridges of ice were lower.</p>

<p>Affidavit of defense — 'Warranty of horse — Promissory notes— Practice, G. P.</p> <p>In an action upon promissory notes given for tbe purchase of a horse, an affidavit of defense is insufficient, which sets up a breach of a guaranty to the effect that if the horse should not prove as guaranteed he should be replaced “with another horse of the same breed and price, upon delivery to me of the above named horse in as sound and good condition as he is at the present, or to return the notes given for him,” without any averment that the horse sold had ever been delivered or offered to be delivered to the vendor after discovery that it was not what it had been represented to be.</p>

<p>Appeal, No. 339, Jan. T., 1911, by defendant, from judgment of C. P. Erie Co., Sept. T., 1909, No. 82, on verdict for plaintiff in case of Henry Fritz v. The New York, Chicago & St. Louis Railroad Company.</p> <p>Trespass to recover damages for personal injuries, Before Benson, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for defendant,</p>

<p>Conspiracy — Confinement in insane asylum — Evidence of conspiracy — Damages.</p> <p>In an action of trespass against two persons for an alleged unlawful conspiracy to commit the plaintiff to an insane asylum, the case is for the jury, and a verdict and judgment for plaintiff will he sustained where the evidence tends to show that the plaintiff was sane on the day of his commitment and had shown no symptoms of insanity for a year more or less; that he had been absent from the county where he lived seven or eight months, but during this period returned to his home neighborhood about every month; that his absence or estrangement was mutually satisfactory to himself and his family; that certain threats or acts of violence alleged as evidence of insanity had happened years before; that the defendants had selected a physician to examine the plaintiff who was a blood relative of the plaintiff, which fact they presumably knew; and that the physician in order to avoid his disqualification to act had made an oath in his certificate that he was of no blood relationship to the plaintiff.</p>

<p>Appeal, No. 122, Jan. T., 1912, by Mechanicsburg Borough, from order of Q. S. Cumberland Co., Sept. T., 1911, No. 378, discharging rule for change of venue In re Application of the Valley Traction Company, et al., to have Ordinance No. 226 of the Borough of Mechanicsburg declared illegal and void.</p> <p>Petition of the Valley Traction Company to have Ordinance No. 226 of the Borough of Mechaniesburg declared illegal and void.</p> <p>Petition for change of venue.</p> <p>The petition of the borough of Mechaniesburg alleged that it was the respondent in the proceedings to have Ordinance 226 set aside; that the judge of the court was formerly counsel for the Valley Traction Company; that S. B. Sadler, Esq., a son of the judge, was one of the counsel for that company in the pending action; and that L. S. Sadler, another son of the judge was a director and stockholder of said Valley Traction Company, and prayed for a change of venue.</p> <p>The answer admitted the interest of the borough of Mechaniesburg; denied that the judge had ever been counsel for the Valley Traction Company; stated that L. S. Sadler was a stockholder of that company and S. tion Company since January, 1907, and admitted that L. S. Sadler was a stockholder of that Company and S. B. Sadler, one of counsel for it.</p> <p>The court discharged the rule for change of venue.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 136, Jan. T., 1912, by defendant, from judgment of C. P. Cumberland Co., Feb. T., 1912, No. 242, for plaintiff on case stated in suit of Harry D. Kreitzer v. Harvey D. Albright.</p> <p>Case stated to determine marketable title to real estate. Before Sadler, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering judgment for plaintiff on case stated.</p>

<p>Election law — Liquor law — Local option — Special Act of April 8, 1872, P. L. 804 — Act of June 8, 1911 P. L. 708 — Statutes — Repeal.</p> <p>1. Under Section 7, Article III, of the Constitution, the legislature had the right to pass the Act of June 8, 1911, P. L. 703, repealing the special Act of April 3, 1872, P. L. 804, relating to local option in certain townships of Allegheny county.</p> <p>2. Each of the ten townships named in the Act of April 3, 1872, was a unit, and the act was in effect the same as if a separate act in identical terms had been passed for each township. The fact, therefore, that the legislature repealed the Act of 1872, as to five of the ten townships only, does not render the Act of June 8, 1911, unconstitutional. Blankenburg v. Black, 200 Pa. 629, distinguished.</p> <p>3. Where, after the passage of the Act of April 3, 1872, a portion of one of the townships mentioned therein becomes • a borough under a decree of the court of quarter sessions, the electors of the portion of the township which became the borough retained their right to decide whether liquor licenses should be granted or refused within the limits of the borough. If the township in question is one of the townships as to which the Act of April 3, 1872, was repealed by the Act of June 8, 1911, the Act of 1872 is repealed as to the borough also, and the electors in the latter lose the right to determine whether or not liquor licenses shall be granted in the borough.</p>

<p>Insurance — Life insurance — Policy held as security for loan— Forfeiture of policy.</p> <p>Where a life insurance policy is held by the insurance company as collateral security, and the policy and assignment thereof contain a condition that the policy may he forfeited for the nonpayment of the principal and interest according to the terms and conditions of the note, and it appears that the amount of the note was the exact loan value, and also the surrender value of the policy, the company has the right, after a default on the note, to cancel the policy, if it appears that the insured made no effort to redeem the policy or prevent its cancellation, ignored repeated notices from the company, and declared to other parties that he had cashed in the policy.</p>

Appeal, No. 166, Jan. T., 1912, by W. N. Seibert, from order of C. P. Erie Co., Feb. T., 1912, No. 60, setting aside sheriff’s sale in case of Isaac Levi and J. P. Trivitt v. R. M. Greer, Administrator of the Estate of Elsie A Greer, deceased, and R. M. Greer, et al. Rule for an order on sheriff not to deliver deed. The facts are stated in the opinion of the Supreme Court. Error assigned was order setting aside the sale.

<p>Appeal, No. 78, Jan. T., 1912, by defendant, from judgment of C. P. Erie Co., Nov. T., 1909, No. 98, on verdict for plaintiff in case of Lena Eose Eheingans v. The New York, Chicago & St. Louis Eailroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Bouton, P. J., specially presiding.</p> <p>The circumstances of the accident are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $,5,000. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

Appeal, No. 26, Jan. T., 1912, by plaintiff, from judgment of C. P. Chester Co., Aug. T., 1910, No. 80, on verdict for plaintiff in case of H. Preston Baker v. Pennsylvania Railroad Company. Appeal from award of Jury of view. Before Hemp-hill, P. J. At the trial H. Preston Baker, J. C. Valentine, Ambrose C. Fulton, Richard W. Schrack, William H. Seltzer, W. Logan Rogers and Issacher Price all testified to values in dollars and cents.

<p>Appeal, No. 174, Jan. T, 1911, by defendants, from decree of C. P. Warren Co., June T. 1907, No. 17, on bill in equity in case of William O’Neil v. M. W. Jamieson and C. W. Jamieson, Executors of the last Will and Testament of H. A. Jamieson, deceased.</p> <p>Bill in equity for an account and the surrender of certain certificates of stock.</p> <p>Biouton, P. J., specially presiding, found the facts to be as follows:</p> <p>The plaintiff brings his bill to compel the defendants to deliver over to the plaintiff twenty-five shares of the capital stock of the Cornplanter Refining Company, which were pledged to H. A. Jamieson as security for a loan of $1,200, made by H. A. Jamieson to William O’Neil and John L. McWilliams on or about February 19, 1896, and for further and other relief.</p> <p>From the evidence adduced, we find the following facts:</p> <p>1. On February 19,1896, the plaintiff, William O’Neil and John L. McWilliams gave to H. A. Jamieson their note for $1,200 payable at the Warren National Bank at Warren, Pa., at four months from the date thereof, and transferred to said Jamieson as collateral security thereto, certain shares of the capital stock of the Corn-planter Refining Company, to wit, certificates Nos. 154 for 13 shares, 199 for four shares, 200 and 257 for four shares each, a total of twenty-five shares of said capital stock at the par value of $100 per share, with authority to the office of said Cornplanter Refining Company, to transfer said stock to said H. A. Jamieson at his request upon the books of the company, and provided that said Jamieson shall re-assign to said O’Neil and McWilliams or to whoever they may direct, if the said note is paid at maturity; with authority to said Jamieson if said note shall not be paid at maturity to have the said stock exposed at public sale after reasonable public notice, and the same sold to the highest bidder for the same; and if the sum realized shall not be sufficient to pay the said note above referred to and all costs, expenses and interest, then the said Jamieson shall look to the said William O’Neil and John L. McWilliams for the payment of the balance. But if said Jamieson shall choose to keep the said stock without any public sale, then he shall deliver up the above mentioned note to said O’Neil or McWilliams, as appears from the written agreement, appended to plaintiff’s bill.</p> <p>2. The said makers of said note did not pay said note nor did said Jamieson re-assign said stock to them or to any other person, nor did he expose said capital stock to public sale, or sell the same as authorized by said agreement, nor did he ever deliver up said note to said O’Neil or McWilliams as provided for in said agreement.</p> <p>3. On or about February 5, 1897, said H. A. Jamieson surrendered said stock held by him as collateral as aforesaid to tbe Cornplanter Befining Company and procured tbe re-issue thereof to himself.</p> <p>4. On or about May 1, 1900 tbe said John L. McWilliams assigned to said William O’Neil bis interest in tbe said certificates of stock Nos. 200 and 257 for four shares each of tbe capital stock of said Cornplanter Be-fining Company.</p> <p>5. On April 2, 1901, said William O’Neil, in tbe presence of a witness, A. S. O’Neil, tendered tbe said H. A. Jamieson, $1,545.40 in payment of said note of $1,200, with interest up to April 2, 1901, which tender tbe said Jamieson refused to accept, saying that too much time bad elapsed for him to consider tbe matter, and said Jamieson refused to deliver said stock to said O’Neil.</p> <p>6. Tbe said H. A. Jamieson died on tbe 27th day of December, 1904, leaving a last will and testament wherein be nominated and appointed tbe said M. W. Jamieson and C. W. Jamieson to be executors thereof and letters testamentary were duly issued to them, and they were duly qualified and are now acting as executors of tbe said last will and testament of tbe said H. A. Jamieson, deceased.</p> <p>7. Tbe said capital stock was on or about March 28th, 1905, transferred to said C. W. Jamieson, one of tbe said executors of said H. A. Jamieson, deceased, and one of tbe defendant executors in this proceeding.</p> <p>8. Tbe plaintiff’s bill in this case was filed on March 30, 1907.</p> <p>9. Tbe market value of said capital stock on February 19, 1896, was $100 per share; on February 5, 1897, tbe market value was $100 per share; on April 2, 1901 tbe market value of tbe same was $100 per share, and tbe market value of the same down to the time of the filing of this bill was $100 per share.</p> <p>The Court entered the following decree:</p> <p>And now, to wit, May 23, 1911, this cause came on to be heard for final decree upon accounting at this term, and was argued by counsel, and upon consideration thereof, it is ordered, adjudged and decreed as follows, viz: That the defendants, M. W. Jamieson and C. W. Jamieson, executors of the last will and testament of H. A. Jamieson, deceased, pay from the estate of the said H. A. Jamieson, deceased, to William O’Neil, the plaintiff herein, seven thousand one hundred twenty-five dollars and forty-three cents ($7,125.43) being the value of the original stock assigned and stock dividends declared thereon $4,226.25, the cash dividends paid thereon to the date of this decree $3,695.36, and interest upon said cash dividends to this date $1,477.82, less the amount of the note of William O’Neil with interest, $2,274.</p> <p>Error assigned was the decree of the court quoting it.</p>

Appeal, No. 155, Jan. T., 1912, by plaintiff, from judgment of C. P. Warren Co., Dec. T., 1911, No. 33, for defendant non obstante veredicto in case of John A. Day v. C. A. Swanson. Ejectment for land in Brokenstraw township. Be-for Hinckley P. J. The case turned upon the validity of a tax sale of seated land made under the provisions of Section 41 of the Act of April 29, 1844, P. L. 436. The jury returned a verdict for plaintiff.

<p>Appeal, No. 46, Jan. T., 1912, by Katherine G. O’Malley, from order of O. P. Lackawanna Co., Nov. T., 1909, No. 873, sustaining exceptions to auditor’s report in case of M. J. Murphy v. T. P. Gordon.</p> <p>Exceptions to report of James McKinney, Esq., auditor.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The auditor allowed the claim of Katherine G. O’Malley, the appellant, although her lien was junior to the judgments of M. J. Murphy and the West Side Bank. The exceptions of Murphy and the West Side Bank were sustained by the court, and the appellant’s claim was not reached in the redistribution.</p> <p>Error assigned was in sustaining exceptions to audit- or’s report.</p>

Appeal, No. 162, Jan. T., 1911, by defendant, from judgment of C. P. No. 4, Phila. Co., June T., 1908, No. 6050, on verdict for plaintiff in case of Amos Trout and Martba Trout v. Philadelphia Electric Company. Trespass to recover damages for the death of plaintiff’s son killed at 1315 Brandywine Street, Philadelphia, on August 14,1908. Before Carr, J. The circumstances of the accident are stated in the opinion of the Supreme Court.

Appeal, No. 100, Jan. T., 1912, by defendant, from judgment of C. P. No. 5, Phila. Co., Dec. T., 1909, No. 328, on verdict for plaintiff in case of Charles Eneu Johnson Company v. City of Philadelphia. Trespass to recover damages for the burning of a building. At the trial it appeared that plaintiff owned a building on Ritner street in the city of Philadelphia. Prior to the time of the fire, Ritner street was being repaired by Edwin H. Yare, a city contractor.

Appeal, No. 119, Jan, T., 1912, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1911, No. 3548, for plaintiff on case stated in suit of Ernest H. Beihl and Clara Beihl, his wife, v. William J. Martin. Case stated to determine marketable title to real estate. The facts are set forth in the case stated as follows: 1.

Appeal, No. 206, Jan. T., 1911, by plaintiff, from judgment of C. P. Pbila. Co., June T., 1907, No. 2628, on verdict for defendant in case of Thomas H. Ervin v. Philadelphia Rapid Transit Company. Tresspass to recover damages for personal injuries. Before Magill J. The facts are stated in the opinion of the Supreme Court. At the conclusion of plaintiff’s case plaintiff’s counsel made the following offer: Mr. Cadwalader: I offer in evidence the two X-Ray plates.

Appeal, No. 113, Jan. T., 1912, by defendant, from judgment of C. P. No. 4, Phila. Co., Dec. T., 1907, No. 5951, for plaintiff on case stated in suit of Claude L. Roth, master, v. Harry Cohn. Case stated to determine title to real estate. Before Willson, P. J. The opinion of the Supreme Court states the case. Error assigned was in entering judgment for plaintiff on case stated.

Appeal, No. 64, Jan. T., 1912, by plaintiff, from order of C. P. Luzerne Co., May T., 1909, No. 545, refusing to take off nonsuit in case of D. C. Yan Duzer v. Commonwealth Telephone Company. Trespass to recover damages for personal injuries before Ferris, P. J. The circumstances of the accident are stated in the opinion of the Supreme Court. Error assigned was refusing to take off nonsuit.

<p>Negligence — Railroads — Locomotive firemen — Contributory negligence — Question for fury.</p> <p>In an action against a railroad company by a locomotive fireman, one of its employees, for personal injuries, it appeared that it became necessary for the plaintiff in the discharge of his duty to get off his engine after dark for the purpose of changing a 'switch. He had a light, but as he stepped down from the engine the wind blew it out. He expected to alight upon level ground between the two main tracks of the railroad, directly opposite the switch stand which the trainmen were required to manipulate, which would have meant a distance of not more than eighteen inches. Instead of that his foot dropped into an excavation of a depth which nearly doubled the distance from the step of the engine to the ground. The space between the two tracks was used as a footway for trainmen and other employees. Held, that the question of the defendant’s negligence and the plaintiff’s contributory negligence was for the jury, and that the court below was guilty of error in entering a nonsuit.</p>

<p>Vendor and vendee — Suit for purchase money — Fraud — Actions.</p> <p>An action of assumpsit cannot be maintained to recover a balance of purchase money due on a contract for the sale of land, where the pleadings and evidence show that the purchase money was paid and settled for, either in money or bonds, accepted by the grantor in the deed, and retained by him, if it appears that the ground of the plaintiff’s action was that certain of the bonds were worthless, and had been accepted by the grantor under false representations. Under such circumstances the plaintiff’s remedy is an action in tort for the fraud.</p>

<p>Appeal, No. 202, Jan T., 1911, by defendant, from judgment of C. P. Hunting-don Co., Sept. T., 1910, No. 22, for plaintiffs on demurrer to statement in suit of Commonwealth to use of Cornelia I. Ashman et al. v. Isaac Taylor, et al.</p> <p>Assumpsit on a trustee’s bond.</p> <p>The plaintiffs filed separate statements of claim. The statement of G. H. Ashman was as follows:</p> <p>For that, Whereas, the defendants by their certain writing obligatory, sealed with their seals, duly executed and filed the court here shown (see copy of bond hereto attached and filed in this case, marked exhibit “A”), the date whereof is the 15th day of July, A. D. 1905, according to the act of assembly in such case made and provided, did on the day and year aforesaid, acknowledge themselves held and firmly bound unto the said Commonwealth of Pennsylvania, in the sum of six thousand dollars, for the uses, intents and purposes appointed by law, which writing obligatory was and is subject to certain conditions thereunder written, whereby after reciting to the effect following; that “the condition of this obligation is such, that if the above bounden, Isaac Taylor, Trustee, as above stated, shall and do faithfully execute the powers committed to him by the Orphans’ Court of Huntingdon County, as said trustee, and shall make faithful appropriation of the estate and effect committed to him, and in all things comply with acts of assembly in such case made and provided, then this obligation to be null and void and of non effect, otherwise to be and remain in full force and virtue”; which writing obligatory with the conditions aforesaid therein stated, was duly received by the Commonwealth of Pennsylvania as other and further security of the said Isaac Taylor, who on June 11th, A. D. 1881, had been appointed by the Orphans’ Court of said county, trustee of the estate of Mary Jane Ashman, late of Clay township of said county, deceased, and said bond was duly approved on the 19th day of July, A. D. 1905, with the said W. T. Bell and John C. Taylor, as his sureties in the premises; and after the said Isaac Taylor had been appointed trustee as aforesaid, and the said estate and trust committed to him, he the said trustee took upon himself the discharge of the duties of said trustee, and was then and thereafter trustee of the estate and effects of the said Mary; Jane Ajshman, deceased, and so continued as such trustee on and after the date of the execution and delivery of said additional bond; and thereafter the said Isaac Taylor, as aforesaid, to wit, on January 2, ■1904, filed the 7th account of his said trust in the register’s office of said county, and on which said 7th account an auditor was appointed by the Orphans’ Court of said county, and that said auditor on the 5th day of February, A.' D. 1906, made his report to the said Orphans’ Court; and on May 14, 1906, said auditor’s report having been referred back to the auditor, the auditor presented a supplemental report on said account to said court, under and by which supplemental report the said auditor awarded the sum of $11,156.08% to said G. H. Ashman, which said supplemental report of the auditor was duly confirmed by decree of said court, dated June 30, 1906, and upon appeal to the Supreme Court, from said decree, the Supreme Court on June 3, 1907, affirmed said decree; and finally adjudicated said sum found due the said G. H. Ashman. After said Orphans’ Court, by decree of June 30, 1906, confirmed said supplemental report of the auditor, the said G. H. Ashman on July 19, 1906, procured a certificate from the clerk of the Orphans’ Court of said county of the said amount of $11,156.08%, and filed the same as a lien, in the Court of Common Pleas of Huntingdon County, to No. 128, May Term, 1906, against the real estate of said Isaac Taylor, and after voluntary credits had been entered thereon by the plaintiff, the said plaintiff issued a scire facias on said lien to No. 11, February Term, 1908, against the said Isaac Taylor and Isaac Taylor, Trustee, and on which scire facias, judgment was entered thereon on January 22, 1909, in favor of the plaintiff therein, and against the said Isaac Taylor, and Isaac Taylor, trustee, for the sum of $1,508.61, with interest from date, and costs, which, judgment was unappealed from a final adjudication of the amount due the plaintiff. After the entry of which judgment as aforesaid, a credit of $1,035.-40, out of the proceeds of sheriff’s sale of real estate of said Isaac Taylor was entered thereon.</p> <p>Yet the said plaintiff in fact says that the said Isaac Taylor, did not faithfully .discharge all the duties required of him as trustee, as aforesaid, but on the contrary thereof has broken the conditions of said writing obligatory in this, that the said Isaac Taylor, trustee as aforesaid, did not make faithful appropriation of the estate and effects committed to him and in his hands and custody, as said trustee, before, at the time and after the execution and delivery of said writing obligatory; and that said trustee did not pay over or cause to be paid over to the plaintiff the moneys due and owing to him, on said judgment No. 11, February Term, 1908, entered in said court in favor of the plaintiff, and against the said Isaac Taylor and Isaac Taylor, trustee, for the sum of $1,508.61, with interest and costs thereon, (less said credit of $1,025.40) upon and after the entry of said judgment on January 22, 1909, as aforesaid, for said sum. And he the said plaintiff has been injured by the neglect and refusal of said Isaac Taylor, trustee, to pay over to the plaintiff, the money due and owing on said judgment and the nonperformance by him, said trustee, in that behalf.</p> <p>Wherefore an action has accrued to the Commonwealth of Pennsylvania, to demand and have of and from the defendants to the use of the plaintiffs the sum of six thousand dollars. Yet the said defendants, or either of them, though often requested thereto, have not paid said sum (except said credit) to the damage of the plaintiff of the sum of $1,508.61, with interest from January 22, 1909, and costs, subject to the following credit, September, 17, 1909, $1,025.40.</p> <p>The court entered judgment for plaintiffs on del murrer to statements.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 302, Jan. T., 1911, by plaintiffs, from judgment of C. P. Huntingdon Co., May T., 1909, No. 33, for defendant non obstante veredicto in case of William W. Reed et al. v. Broad Top Lumber Company. Trespass to recover damages for cutting of timber. At the trial the jury returned a verdict for plaintiffs.

Appeal, No. 167, Jan. T., 1912, by defendant, from judgment of the Superior Court, No. 131, Oct. T., 1911, affirming judgment of C. P. No. 2, Phila. Co., March T., 1911, No. 3726, for plaintiff on case stated in suit of James H. Eussell v. City of Philadelphia. Appeal from judgment of Superior Court. The opinion of the Supreme Court states the case. See also Eussell v. Philadelphia, 48 Pa. Superior Ct. 622. Error assigned was judgment of the Superior Court.

Appeal, No. 139, Jan. T., 1912, by plaintiff, from judgment of C. P. Crawford Co., May T., 1911, No. 47, sustaining demurrer to statement of claim in case of George J. Vetter for use of the Pittsburgh-Buffalo Company v. Meadville. Demurrer to statement of claim.

Appeal, No. 140, Jan. T., 1912, by plaintiff, from judgment of C. P. Crawford Co., May T., 1911, No. 48, for defendant, on demurrer to statement in case of Pittsburgh-Buffalo Company v. Charles H. Schmidt and the United Stated Fidelity & Guaranty Company. Demurrer to statement of claim. Before Prather, P. J. The facts appear by the opinion of the Supreme Court and by the report of Vetter v. City of Meadville, 236 Pa. 563.

Appeal, No. 161, Jan. T., 1912, by C. M. Reed, from decree of O. C. Erie Co., Feb. T., 1911, No. 44, dismissing exceptions to auditor’s report in Estate of Harriet W. Reed, deceased. Exception to report of Joseph M. Force, Esq., auditor. Before Benson, P. J. The opinion of the Supreme Court states the case. Error assigned was decree dismissing exceptions to adnitor’s report.

<p>Appeal, No. 160, Jan. T., 1912, by Thomas M. Hemphill, Guardian of Aaron Manning Reed, from decree of O. O. Erie Co., Feb. T., 1911, No. 44, dismissing exceptions to auditor’s report in Estate of Harriet W. Reed, deceased.</p> <p>Exceptions to report of Joseph M. Force, Esq., auditor. Before Benson, P. J.</p> <p>The facts are stated in the report of Reed’s Estate (No. 1), 236 Pa. 572.</p> <p>Error assigned was decree dismissing exceptions to auditor’s report.</p>

Appeal, No. 81, Jan. T., 1912, by defendant, from order of C. P. Elk Co., Oct. T., 1910, No. 26, discharging rule to vacate judgment and stay writ of fi. fa. in case of J. H. Lepsch v. William M. Barrett, President of Adams Express Company. Assumpsit against common carrier for loss of goods. Before Hall, P. J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 164, Jan. T., 1*912, by O. J. Tome, from judgment of C. P. Warren Co., Dec. T., 1911, No. 25, in election contest In re Election of Supervisor in Corydon Township, Warren County. 'The opinion of the Supreme Court states the case. Error asigned was in entering judgment for Frank Kennedy.

Appeal, No. 138, Jan. T., 1912, by defendant, from order of C. P. No. 2, Pliila. Co., Dec. T., 1911, No. 3552, making absolute rule for judgment for want of a sufficient affidavit of defense in case of James P. Keily and William J. Kelleher v. Harry T. Saunders. Assumpsit to recover the balance of purchase money of real estate. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 178, Jan. T., 1912, by defendant, from judgment of C. P. Fayette Co., Dec. T., 1911, No. 158, for plaintiff on case stated in suit of Isabella D. Cburcb v. Joseph J. Baer. Case stated to determine marketable title to real estate. Before Van Swearingen, J. The facts are stated in the opinion of the Supreme Court. Error assigned was in entering judgment for defendant on case stated.

<p>Appeal, No. 127, Jan. T. 1912, by defendant, from judgment of C. P. Fayette Co., March T., 1912, No. 69, for relator on demurrer to answer in case of Commonwealth ex rel. David Cole v. N. E. Murphy.</p> <p>Demurrer to answer to petition for quo warranto. Before Van Swearingen, J.</p> <p>The petition for the writ set forth that the relator was elected road supervisor of North Union township at the election held on the third Tuesday of February, 1910; that a certificate of election was given to him, and that he subscribed to the oath of office and continued to discharge the duties of the office until the defendant usurped the office.</p> <p>The respondent by his answer objected that the petition did not show the relator entitled to the office, and further set forth that on the third Tuesday of February, 1908, William C. Bowers was elected road supervisor for the term of three years, and that he served for the period of one year, when he resigned and N. E. Murphy was appointed to fill the vacancy. That at the regular election in February, 1910, the relator was elected on a ballot, which specifically mentioned a term of one year. That the term of the relator expired on the first Monday of December, 1911, and that in November, 1911, respondent was duly elected township supervisor , under the Act of 1911 to fill the vacancy caused by the expiration of the term of relator.</p> <p>The relator demurred to the answer, and the court entered judgment of ouster.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 150, Jan. T., 1912, by defendant, from decree of C. P. Payette Co., In Equity No. 661, continuing preliminary injunction in case of Jobn Keys v. Uniontown Radial Street Railway Company. Bill in equity for an injunction. Before Umbel, P. J. Tbe opinion of tbe Supreme Court states tbe case. Error assigned was decree continuing tbe injunction.

Appeal, No. 179, Jan. T., 1912, by plaintiff, from order of C. P. Fayette Co., March T., 1911, No. 100, refusing’ to take off nonsuit in case of Mary E. Friend v. Arthur Raymond Kramer. Trespass to recover damages for personal injuries. Before Umbel, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned was in refusing to take off nonsuit.

Appeal, No. 143, Jan. T., 1911, by plaintiff, from judgment of C. P. No. 5, Phila. Co., June T., 1907, No. 1043, for defendant non obstante veredicto in case of Winfield K. Reichner v. Trust Company of North America, Executor of the. Last Will and Testament of Caroline Vautier, deceased. Assumpsit by an endorsee against the maker of a promissory note.

Appeal, No. 281, Jan. T., 1910, by defendant, from decree of C. P. Berks Co., No. 961, Equity Docket, 1908, granting a perpetual injunction in case of Francis H. Brobst v. Caleb Weidner, clerk, Obadiah Doward, controller, and Edward H. Filbert, treasurer of the City of Beading, the City of Reading and John F. Albrecht. Bill in equity by taxpayer to enjoin payment by city to contractor. The facts appear in the opinion of the Supreme Court. Error assigned was decree of court.

<p>Appeals, No. 72, Jan. T., 1912, by Ferdinand Goetz Sons’ Company, and No. 73, Jan, T., 1912, by Fred W. Goetz, Executor from decree of O. C. Berks Co., Nov. T., 1910, No. 35, dismissing exceptions to adjudication in Estate of Ferdinand Goetz, deceased.</p> <p>Exceptions to adjudication. Before Bland, P. J.</p> <p>Ferdinand Goetz, a member of the firm of Winter & Goetz, tanners, died leaving a will wherein he gave to his widow for life the entire income of his estate. He named his son, Fred W. Goetz, and his son-in-law, William C. Billman, executors. He left six children, two of whom were minors.</p> <p>The executors, with the consent of the widow and adult children, purchased the interest of the surviving partner in the tanning business for $80,500 and organized a corporation under the laws of Pennsylvania, “The Ferdinand Goetz Sons’ Company,” with a capital of $75,000, divided into 1,500 shares of the par value of $50.00 each.</p> <p>In the application for a charter the said shares were set forth thus:</p> <p>“Fred. W. Goetz............747 shares.</p> <p>W.C. Billman.....!........747 «</p> <p>Charles E. Miller.......... 2 shares.</p> <p>Karl Goetz................. 2 u</p> <p>George Burner.............. 2 u</p> <p>Fred. W. Goetz and Wm. C. Billman were the executors as aforesaid, and Karl Goetz was a son of the testator, while Charles E. Miller and George Burner were workmen in the tannery.</p> <p>None of the said parties paid any money for their shares, the capital being paid in full by a transfer of the tanning business which had for many years been prosperous and then belonged entirely to the testator’s estate. Fred. W. Goetz was made President and Wm. C. Billman Treasurer of the corporation. In June, 1910, Mr. Billman, claiming to own in his own right the 747 shares standing in his name, took the certificates therefor from the corporation’s safe.</p> <p>George Z. Goetz, a son of the testator, a minor, having for his guardian the Beading Trust Company, compelled the filing of an inventory and account. Mr. Bill-man filed the account, refusing to charge himself with 747 shares of stock. Fred. W. Goetz, his co-executor, joined in the account with a protest that not only the 747 shares but all the shares should be embraced as part of the assets of the estate. George Z. Goetz, by his guardian, filed an exception to the account based on the omission of the shares of stock. The controversy was as to the 747 shares claimed by Mr. Billman. Testimony was submitted, Mr. Billman claiming the stock under an alleged arrangement with the widow, and the widow testified that she understood that the stock was to belong to the estate. The court below found the transaction a fraud upon the widow and children, and adjudged the shares of stock to belong to the estate. The court further proceeded to ascertain the profits .which the corporation had made from the 12th day of November, 1904, to January 1,1910, the amount thereof being $171,144.02. To this the court added the balance of the income account, $790.11, making a grand, total of $171,934.13. The court then deducted the $80,500 paid for Mr. Winter’s interest, leaving a balance of $91,-434.13, which the court distributed to the widow. In a subsequent distribution the court distributed $18,-428.80 of the said sum of Mr. Billman as compensation for services rendered to the corporation.</p> <p>Fred. W. Goetz, Executor, filed exceptions to the adjudication.</p> <p>The exceptions were dismissed. Both the Ferdinand Goetz Sons Company and Fred. W. Goetz, Executor, apjjealed.</p> <p>Errors assigned were is dismissing the exceptions.</p>

<p>Appeals, No. 71, Jan. T., 1912, by George A. Goetz, and No. 74, Jan. T., 1912, by Anna K. Goetz, from decree of O. O. Berks Co., Nov. T., 1910, No. 35, dismissing exceptions to adjudication in Estate of Ferdinand Goetz, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts of the case appear in Goetz’s Estate No. 1, 236 Pa. 630.</p> <p>Errors assigned in overruling exceptions to adjudication.</p>

Appeal, No. 77, Jan. T., 1912, by William C. Billman, from decree of O. C. Berks Co., Nov. T., 1910, No. 35, dismissing exceptions to adjudication in Estate of Ferdinand Goetz, deceased. Exceptions to adjudication. The facts appear in Goetz’s Estate, No. 1, 236 Pa. 630. Errors assigned were, among others, 4. The court erred in not sustaining the ninth exception to the adjudication which was as follows: “9.