Volume 237 — Pennsylvania State Reports

Appeal, No. 327, Jan. T., 1911, by defendants, from judgment of C. P. Northampton Co., Feb. T., 1910, No. 25, on verdict for plaintiff in case of Commonwealth of Pennsylvania to the Use of Victor V. More, Trustee of Emeline M. More, under the last Will and Testament of Michael Meyers, deceased, v. George F. Messinger and Charles A. Messinger, Executors of the last Will and Testament of Samuel S. Messinger, deceased, who was a co-obligor with O. H. Meyers and C. M. Anstett,…

Appeal, No. 337, Jan. T., 1911, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. T., 1907, No. 1837, on verdict for plaintiff in case of Robert Drake v. J. Monroe Fenton, Trading as Fen-ton Storage and Delivery Company. Trespass for personal injuries. Before Kinsey, J. The facts appear in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $2,750. Defendant appealed.

<p>Appeal, No. 38, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 2, Phila. Co., Dec. T., 1907, No. 3616, for defendant non obstante veredicto in case of Dora A. Gresh v. John Wanamaker, L. Rodman Wanamaker and Robert C. Ogden, Survivors pf Thomas B. Wanamaker, deceased, co-partners, trading as John Wanamaker.</p> <p>-.Trespass for- personal injuries.. Before Staples, P. ■J., specially-presiding.</p> <p>Tbe opinion of the Supreme Court states tbe case,</p> <p>The jury rendered a verdict in favor of the plaintiff for $5,000. The court subsequently entered judgment for defendant non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant.</p>

Appeal, No. 7, Jan. T., 1912, by defendant, from judgment of C. P. No. 1, Phila. Co., Sept. 'T., 1908, No. 1563, on verdict for plaintiff in case of Frank Martin v. Atlantic Transport Company. Trespass to recover damages for personal injuries. Before Kinsey, J. The opinion of the Supreme Court states the case. Verdict for plaintiff for $1,820 and judgment thereon. Defendant appealed. Error assigned was, among others, refusal to give judgment non obstante veredicto.

Appeal, No. 116, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 1, Phila. Co., June T., 1908, No. 3508, of nonsuit in case of Anna B. Thorne v. Philadelphia Rapid Transit Co. Trespass for personal injuries. Before Bregy, P. J. The facts appear by the opinion of the Supreme Court. The court below at the conclusion of -the trial granted a nonsuit which it subsequently refused to take off.

Appeal, No. 117, Jan. T., 1912, by Jennie E. Patterson, from decree of O. C. Phila. Co., Oct. T., 1911, No. 192, dismissing exceptions to adjudication in Estate of William E. Patterson, deceased. Exceptions to adjudication. The facts are stated in the opinion of the Supreme Court.

<p>Neglig'ence — Mines and mining — Master and servant — Death of minor — Forged■ certificate ■ of age — Fraud—Evidence—Credibility of witnesses — Court and jury.</p> <p>In- an action by a widow against a mining company and its mine foreman, to recover for the death of a son under the age of sixteen, it is error to give binding instructions for the defendants upon the sole ground that the minor was guilty of fraud in having obtained his employment in defendant’s mine by presenting what purported to be 'a written certificate from his father to the effect that he'was of- lawful employment age, which certificate had never been signed by the father and was admittedly forged, where the only direct testimony in the case to establish that the father’s name was written into the certificate before it was delivered to the mine foreman is that of the foreman himself, one of the defendants. In such a ease, in view of the witness’s interest and the death of the other party, the jury must be permitted to pass upon the credibility of the witness.</p>

Appeal, No. 266, Jan. T., 1911, by plaintiff, from order of C. P. Luzerne Co., Oct., 1905, No. 391, refusing to take off nonsuit in case of Tony Weisenberg v. Lackawanna and Wyoming Railroad Company. Trespass .to recover damages for personal injuries. Before Trexler, P. J., specially presiding. The facts are stated in the opinion of the Supreme Court. Error assigned was in refusing to take off nonsuit. — The case was for the jury: Keifner v. Ry.

<p>Appeal, No. 336, Jan. T., 1911, by defendant, from decree of C. P. Luzerne Co., May T., 1902, No. 2, in case of J. C. Haddock v. The Plymouth Coal Co.</p> <p>Bill in equity for appointment of a receiver.</p> <p>Exception to fourth account of receiver.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Errors assigned, among others, were to receiver’s findings of fact and to the decree of the court.</p>

<p>Appeal, No. 39, Jan. T., 1912, by defendant, from judgment of C. P. Luzerne Co., May T., 1909, No. 246, on verdict for plaintiff in case of John O’Brien v. Pennsylvania Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Jones, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $4,000.00 and judgment thereon.</p> <p>. While plaintiff’s witness, James Flynn, was on the stand, he was asked the following question on cross examination :</p> <p>“By Mr. McGahren: Q. You are willing to go there with any engineer or person whom the court will designate and verify this, are you?”</p> <p>“By Mr. Lenahan: I object as highly improper.”</p> <p>“By Mr. McGahren: Q. Are you willing to accompany any man whom the court will designate to make this measurement at the point where you say, to prove the correctness of this?”</p> <p>“The Court: I sustain the objection, note an exception and seal a bill for defendant.” (10)</p> <p>The Court charged in part as follows:</p> <p>“Counsel for plaintiff has argued to you upon the reasonableness of the supposition that earning $1.80 a day he would probably live thirteen or fifteen years, that he would earn $540.00 a year and that during that time he would earn possibly five to six thousand dollars. The stenographer says that counsel stated that he had capitalized it at five to six thousand dollars. You will observe that the interest on the amount capitalized at five to six thousand dollars would be from three hundred to three hundred and sixty dollars a year and that would cover almost or at least three-quarters of the amount of his earnings for a yea/, and that would still leave him the principal at the end of his life possibly intact. It is clear, gentlemen, you cannot apply any such arithmetical rule. You are to consider along with the argument of counsel the advantage to the plaintiff of a present payment to cover the whole period. It is the present worth, I repeat it, it is the present worth of his future earnings which is the measure of damages.” (8)</p> <p>Defendant introduced the following point:</p> <p>“Ninth. The court is requested to instruct the jury that in the event that they find the plaintiff is entitled to recover damages on account of loss of earning powei’, as to the manner of ascertaining the present worth of the same and how the verdict as to damages should be capitalized in fixing the amount of the same.”</p> <p>By the Court: “As I stated to you, gentlemen, in passing upon this question on the loss of earning power, it is your duty first to consider whether the injury is permanent or temporary, and whether it will affect his earning capacity, bow long he may reasonably be expected to live and to work, what amount of work he will probably perform and what wages he will probably earn and what amount they will probably have increased or diminished above or below a dollar and eighty cents which he was earning as he said, at the time of the accident, and, having arrived at his future earnings, then you determine from that what these future earnings are worth to-day. What is the present worth of these earnings? Determine, as I say, the future earnings in the manner which I have detailed to you. Having determined that, then it is for you to say what is the present worth of these future earnings.” (7)</p> <p>Errors assigned were, among others, (2) refusal to enter judgment for defendant; (7) answer to point; (8) portion of the charge; (10) ruling in evidence, as above.</p> <p>— Where in the performance of his duties a servant assumes a position of danger, he is bound to use all available means to give notice thereof to his master and other servants, and cannot recover for injuries caused by his failure to do so: Cypher v. R. R. & Coal Co., 149 Pa. 359; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185.</p> <p>When future payments are to be capitalized in a verdict, the plaintiff is only entitled to their present worth and the jury should have such guidance from the court as will give them an intelligent understanding of what this means: Goodhart v. Railroad Co., 177 Pa. 1; Wilkinson v. North East Boro., 215 Pa. 486; Pauza v. Coal Co., 231 Pa. 577; McLane v. Rys. Co., 230 Pa. 29.</p>

<p>Ejectment — Question of fact — Question for jury — Evidence— Declarations of stranger to title — Gorroborative evidence — Bes adjudicata — Action in trespass — Witness.</p> <p>1. In an action of ejectment where the ease turns on the location of a boundary line the question of trees, whether original or otherwise, their boxing, their date, their location, the number of such trees and whether they correspond with the official survey, are all questions of fact for the jury.</p> <p>2. In such a case, it is not reversible error to permit a witness to testify to the declarations of" another when the latter was not the owner of the premises in question, when such testimony is admitted without objection and is merely corroborative and it does not appear that substantial harm was done thereby.</p> <p>3. In order to make a matter res adjudicata there must be a concurrence of the four following conditions: (1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and of parties to the action; (4) identity of the quality of the persons for and against whom the claim is made. There is no such identity between an action to recover damages for a trespass upon land and an action in ejectment to recover possession of the same land, where the latter action is brought by a plaintiff who was no party to the action in trespass. While a judgment in trespass is conclusive in a second action of trespass wherein a freehold of the same class is attempted to be put in controversy, such judgment is not conclusive of the title in the subsequent ejectment for the same land.</p> <p>4. One who has been summoned as a witness is not, by reason of that fact alone, concluded by a judgment or decree rendered in the case. There must be some circumstance shown connecting him directly with the litigation, as in fact a party to it, before he can be held bound by the result;</p>

<p>Wills — Vested and contingent estates — Income—Accumulations.</p> <p>1. A testatrix by will provided for certain annuities payable out of the income of her estate, and further provided that “any balance of income shall be divided between the children of M., if any, and upon her death the principal of said estate, subject to the......annuities, shall be divided between the children of M. then living,” with remainder over if she left no children. When the will became operative, M. was unmarried but three years later she intermarried and two years later had one son. The same year there was a fund for distribution consisting of a balance of surplus income, derived in part prior to the birth of M.’s son and in part subsequent thereto. Held, that M.’s child took both the part of the fund which accrued after his birth and the part accruing prior thereto.</p> <p>2. In such a case, the gift of surplus income was immediate, not being built upon the determination of any prior estate but given direct to the beneficiaries who are made primary legatees; and the fact that the testatrix knew of the nonexistence of such beneficiaries when she wrote her will is immaterial.</p> <p>3. A general residuary bequest, contingent in terms, carries the intermediate income which is not disposed of but accumulates. If the will is silent on the subject of a direction to accumulate, the law will supply the intention and allow the accumulation within the statutory period.</p> <p>4. A limitation which transgresses the rule against perpetuities is void altogether, while a provision for accumulation contrary to the statute is void only for the excess.</p>

<p>Appeal, No. 133, Jan. T., 1912, by defendant, from judgment of C. P. Luzerne Co., March T., 1912, No. 200, for plaintiff on case stated in case of Sax and Abbott Construction Company v. School District of the City of Wilkes-Barre.</p> <p>Assumpsit on case stated. Before Fuller, J.</p> <p>Hon. George S. Ferris, as referee, found for the plaintiff on the case stated, and the court subsequently overruled defendant’s exceptions to his report and directed that judgment be entered in accordance therewith. The case turned upon the constitutionality of the Act of May 6, 1909, P. L. 441.</p> <p>Errors assigned were in overruling various exceptions to the referee’s report.</p> <p>Vulcanite Portland Cement Co. v. Allison; 220 Pa. 382; Vulcanite Paving Co. v. Rapid Transit Co., 220 Pa. 603; Taylor Lumber Co. v. Carnegie Institute, 225 Pa. 486; Sterling Bronze Co. v. Improvement Assn., 226 Pa. 475; Page v. Carr, 232 Pa. 371; Ley Construction Co. v. Allegheny County, 57 Pitts. Leg. Journal 506.</p>

<p>Equity — Statutory liens — Defective procedure — Liens against decedent’s estate — Act of June lk, 1901, P. L. 562 — Married women.</p> <p>1. Where a plain statutory requirement upon which the right to acquire or continue a lien has been disregarded, the court has power to declare void the instrument which has been filed with a view to create the'lien, and strike it from the record; and this rule applies in a proceeding to continue a lien against a decedent’s estate under the Act of June 14, 1901, P. L. 562, but in determining whether any proceeding of such character is defective by reason of failure to comply with statutory requirements, regard must be had solely to what appears on the record.</p> <p>' 2. A'copy of a covenant relative to real estate, signed by a married woman, during the lifetime of her husband, which was properly filed and indexed in the office of the prothonotary,’ within two years after the death of the covenantor, is improperly stricken from the record by the court below on a petition averring that the paper filed “is not the entire agreement or covenant but that it shows upon its face that there is another agreement to which this agreement is a supplement and that said original agreement is not filed of record” and in addition that the covenant set out was signed by the covenantor “during the lifetime of her husband and as the same relates to real estate would not be binding on her or her estate,” where the evidence submitted on the petition includes nothing more than a prior agreement between the parties, referred to both in the paper filed and the petition to annul, and the court below nowhere finds that the covenant set out in the paper-filed is not self-sustaining, but where it appears that the covenant as filed recites so much of the earlier agreement as is necessary, in connection with the covenant itself, to inform fully all interested whether heirs or creditors, of the nature, extent and character of the demand, and that as the statement in an action brought for breach it would have answered every legal requirement.</p> <p>Equity — Cloud on title.</p> <p>3. Where invalidity of the disputed title appears upon the face of the conveyance, or in proof which the claimant is required to produce in order to establish it, no suit can be maintained in equity to set it aside, because a title obviously void does not constitute a cloud upon the title of the true owner.</p> <p>4. A mere allegation of coverture is not sufficient to warrant the striking down of a record.</p>

<p>Equity — Specific performance — Agreement to sell land — Sufficiency of tender — Certified check — Estoppel.</p> <p>1. One party to a contract may not mislead the other party, by agreeing to a modification of the terms of payment, and then at the last moment, when it is too late to make other arrangements, refuse to accept the terms agreed upon and thus defeat the right to exercise an option.</p> <p>2. Acts insufficient in themselves to make a complete tender may operate as proof of readiness to perform so as to protect the rights of a party under the contract, where a proper tender is made impossible by reason of circumstances not due to the fault of the tenderer.</p> <p>3. A certificate of deposit or certified check is a sufficient tender, if no objection be made on the ground that it is not lawful money.</p> <p>4. In a proceeding for the specific performance of a contract to sell land, it appeared that the defendant had agreed in writing to sell certain real estate to the plaintiff, with the proviso that the contract should be void if the purchase money were not paid on a day specified; that on the last day for exercising the option the defendant agreed in writing and for a consideration to extend the option for ten days; that a few days later the defendant agreed to a modification of the terms of payment and upon the last day of the extended period the plaintiff made an effort to comply with the terms of the second agreement as modified, and was prevented by the defendant’s failure to appear, but left a certified check for the amount agreed upon with the defendant’s wife at his home; that the plaintiff returned to the defendant’s house the same night for the purpose of making tender by certified cheek of the full amount of the purchase money under the original agreement but could not gain admission, although the defendant was at home at the time; that at the earliest opportunity the plaintiff informed the defendant what he had done and tendered a certified check for the balance which the defendant refused, without objecting to the form of tender and without offering to return the check left with his wife. Held, that this transaction constituted a sufficient tender to warrant a decree for specific performance of the original agreement.</p> <p>Practice, equity — Decree—Death of party after final argument.</p> <p>5. Where the plaintiff or defendant dies after final argument, but before the entry of the decree, the court may direct the decree to be entered as of a date prior to the death of the party.</p>

<p>Equity — Beal estate — Option to purchase — Specific performance —Tender—Ejectment hills.</p> <p>1. On a bill for specific performance of an agreement to sell land it appeared that the plaintiff had entered into an agreement of option under seal with two of the defendants for the sale of the land by which agreement the name of a third party was inserted as one of the optionees to whom conveyance was to be made. Before the option was exercised differences arising between plaintiff and tbe other optionee the latter not only declared that he had no further interest in the contract but refused to take or participate in any steps looking to an exercise of the option and in connection with other adverse parties sought and obtained from the owners another option in the same land. The plaintiff, made a tender of the entire purchase price within the period of the option. Held, that he was entitled to specific performance of the contract, and that his right was not prejudiced by the fact that the other optionee did not join in the bill to compel such performance.</p> <p>2. In such a case it is within the power of the court to direct a conveyance directly to the assignees of the plaintiff who as the real owners of the title, have intervened as parties plaintiff.</p> <p>3. Where a person who has exercised an option to purchase land files a bill in equity for specific performance, other parties to whom he has assigned his rights under the contract may be permitted to intervene in the bill as parties plaintiff; but the bill should not be made to include other parties as 'defendants who did not claim any right or title under the contract, but asserted rights springing out of a subsequent option relating to the land in dispute, but representing a different transaction. As between such parties and the plaintiffs, the only question involved is title to the land in dispute, and as to this equity has no jurisdiction.</p> <p>4. An option in the nature of a unilateral nudum pactum, under seal, becomes valid and binding as a contract inter partes upon acceptance, and is necessarily the subject of specific performance.</p> <p>5. A tender is not invalidated if coupled with a condition upon which the debtor has a right to insist and to which the creditor cannot reasonably object.</p>

Appeal, No. 146, Jan. T., 1912, by defendants, from decree.of C. P. Huntingdon Co., May T., 1908, No. 148, on bill in equity in case of J. G. Lincoln, Julia B. Glazier, Mary E. Glazier, Phoebe A. Glazier and Hattie F. Glazier, executrices of C. H. Glazier, deceased, and B. J. Mattern, assignee for the benefit of the creditors of Julia T. Glazier v. Harry G. Wakefield, Mary Catherine Wakefield, and Merle Stewart Wakefield, whose guardian, ad. litem, is George W. Wright; J.…

Appeal, No. 248, Jan. T., 1911, by defendant, from judgment of C. P. Crawford Co., Nov. T., 1908, No. 6, on verdict for defendant in case of Andrew Foust and Alva Foust v. Henry Dreutlein. Rule to bring ejectment for land in Summit township. Before Bouton, P. J., specially presiding. In 1833 Cornelius Foust and William Power were adjoining riparian owners on the shore of Conneaut Lake.

Appeal, No. 301, Jan. T., 1911, by Forest J. Alward, administrator, from decree of O. C. Erie Co., Feb. T., 1911, No. 51, dismissing exception to adjudication in the Estate of Maria Smith, deceased. Adjudication of administrator’s final account. Before A. B. Osborne, Esq., Auditor. The facts, appear by the opinion of the. Supreme Court. . The auditor filed a report of distribution showing a surcharge against the accountant of $2,345.75, which report was confirmed.

<p>Appeal, No. 118, Jan. T., 1912, by plaintiff, from judgment of C. P. Crawford Co., Sept. T., 1908, No. 23, for defendant, in case of Prank J. Erbeck v. The Meadville and Conneaut Lake Traction Company.</p> <p>Assumpsit on a construction contract. Before Prat-her, P. J., in case trial by the court without a jury under the Act of April 22, 1874.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Exceptions to the findings of court for defendant were dismissed. The plaintiff appealed.</p> <p>Errors assigned, among others, were (22) confirming defendant’s request for a compulsory nonsuit at the conclusion of plaintiff’s case, (24) ruling on offer as 'set forth in opinion of Supreme Court.</p>

Appeals, Nos. 156 and 157, Jan. T., 1912, by Charles M. Warner and T. A. Lamb, Executors of Harriet W. Reed, deceased, from decree of O. C. Erie Co., Feb. T., 1909, No. 46, and Feb. T., 1.910, No. 45, awarding distribution in the Estate of Charles M. Reed,' deceased. Adjudication of the third and fourth partial accounts of trustee and administrator d. b. n. c. t. a. The facts appear by the opinion of the Supreme Court.

<p>Naturalization — Courts—Jurisdiction—Fraud or forged certificate — Service.</p> <p>1. The authority to vacate, open or set aside a judgment or decree is incident to all courts of record, of general jurisdiction, and extends to granting relief by opening or vacating such judgments or decrees as are utterly void and mere nullities. Such relief is granted by virtue of the equitable powers-of the court which may be successfully invoked in all cases when the action of the court has been procured by fraud, deception or collusion.</p> <p>2. The power to correct or purge its records is inherent in every state court of general jurisdiction, and it may be exercised in the case of the naturalization of an alien as well as in any other case in which it has jurisdiction to act.</p> <p>3. The Act of Congress of June 29, 1906, Chap. 3592, U. S. Stat. 596, does not deprive a state court from entering a decree annulling a forged certificate of citizenship and directing that it be surrendered for cancellation upon a private petition joined in by the district attorney' of the county the court of which entered the decree.</p> <p>4. Upon a petition to the Court of Common Pleas of one county for a rule to show cause why a certificate of naturalization purporting to have been issued by such court should not be cancelled where at the hearing it appears that the party whose name appeared on the certificate was dead and that his son resided- in another county, service upon the son will be held sufficient where the hearing of the rule is continued and ten days’ notice thereof, directed to be given to the son, and the’rule and a notice of taking depositions are personally served on the son by a justice of the peace of the county in which he resided at least ten days before the hearing on -the rule and the time for taking depositions.</p>

<p>Decedents’ estates — Testamentary expenses — English estate— Duty — English and American wills.</p> <p>Where a woman domiciled in England dies possessed of personal property both in England and Pennsylvania, and leaves two wills in one of which she disposes of her Pennsylvania property, and in the other of her English property, and in the latter directs that out of the proceeds of her English property there shall be paid “funeral and testamentary expenses and debts in England, and the legacies......and the duty on all legacies......bequeathed free of duty,” the “estate duty” payable to the British Government under the British Finance Act of 1894, 57-58 Yict. ch. 30, comes under the head of testamentary expenses and is payable out of the proceeds of the English property alone to the exoneration of the Pennsylvania estate.</p>

<p>Appeals, Nos. 107-108-109-110, Jan. T., 1912, by George W. Covington, Ellen C. Toad-vine, Mary L. Tingle and Laura Denby, next of kin, from decree of O. C. Phila. Co., April T., 1908, No. 191, dismissing exceptions to adjudication in estate of Martha Ellen Kortright, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p> <p>— It is a matter of no moment that the gifts to the charities implies an intention to disinherit the next of kin, for such an intention even if expressly stated, and a fortiori if only implied from an invalid gift to another, cannot defeat his right unless accompanied by an express valid gift to some one else: Clayton v. Clayton, 3 Binn. 476; Bender v. Dietrick, 7 W. & S. 284; Nebinger’s Est., 185 Pa. 399; McGovran’s Est., 190 Pa. 375. Section 12 of the Act of 1855 is of no relevancy to the present controversy for the reason that it applies only to and forbids accumulations of income: Lawrence’s Est., 136 Pa. 354.</p> <p>To name new legatees would be to pro tanto make a new will for testatrix, and no act of assembly authorizes that. The Acts, Act of April 26,1855, Sec. 10, P. L. 328, its first amendment by Act May 9, 1889, P. L. 173, and its final amendment by Act May 23, 1895, P. L. 114 relate, as decided in Houston’s Est., 12 Pa. D. R. 121, per Ashman, J., to gifts in “trust” for charitable uses.</p> <p>He who seeks to take and hold property as against the heir or next of kin of the decedent last owning it, must show a clear title thereto; to doubt is to deny the right of other than the heir or next of kin: Brendlinger v. Brendlinger, 26 Pa. 131; Abel v. Abel, 201 Pa. 543; Com. v. R. R, Co., 27 Pa. 339; Pitts. & Steubenville R. R. Co. v. Allegheny County, 79 Pa. 210.</p> <p>Upon principle and authority in this state, therefore, the next of kin having a special and peculiar interest may raise the question of the validity of a bequest, which if given to the charity would result in a violation of law.</p> <p>— Even though the appellees be not entitled' to retain the legacies given to them the Commonwealth alone is interested.</p> <p>The next of kin are not interested and have no right to, object: Jones v. Habersham, 107 U. S. 174 (2 Superior Ct. Repr. 336); Cornell University v. Piske. 136 U. S. 152 (10 Supr. Ct. Repr. 775); Pittsburgh-Connellsville R. R. Co. v. Allegheny, 63 Pa. 126; Leazure v. Hillegas, 7 S. & R. 313; Hagerman v. Empire Slate Co., 97 Pa. 534; Smith v. Sheeley, 79 U. S. (12 Wallace) 358. The statutes prescribe a remedy by which the funds can be applied for the uses of the appellees, even though they have not a right, in their corporate capacity, to receive them.</p>

<p>Appeal, No. 126, Jan. T., 1911, by Geo. R. Long, et al., from decree of O. G. Fayette Co., March T., 1910, No. 59, refusing issue devisavit vel non in the Estate of Samuel M. Long, deceased.</p> <p>Petition for an issue devisavit vel no/n. Before Wiork, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in refusing an issue.</p>

<p>Negligence — Railroads—Train engaged in interstate commerce — • Federal Acts of April 22, 1908 and April 5, 1910 — Jurisdiction— State courts.</p> <p>Under the Act of Congress of April 22, 1908, chap. 149, 35 U. S. Stat. 65, known as the “Federal Employers’ Liability Act” and the amendment of April 5, 1910, chap. 143/36 U. S. Stat. 291, a state court has jurisdiction to entertain an action of trespass against a railroad company by one of its employees for personal injuries sustained while working on a train engaged in interstate commerce.</p>

<p>Appeals, Nos. 311-312-313, Jan. T., 1911, by Frank Martin and Julia Martin, Frank Suster and Yincens Klascik, from decree of C. P. Fayette Co., June T., 1911, No. 365, in re Petition of Frank Martin, Julia Martin, Gerzi Bodnair, Vincens Klascik and Frank Suster, for rule on Lee B. Brownfield, George Patterson and Samuel Goldstein, to show cause, etc.</p> <p>Rule to show cause why respondents should not pay over certain moneys to the petitioners.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Rule made absolute and money paid into court.</p> <p>The court made an order distributing the fund.</p> <p>Error assigned, among others, was in awarding $2,459 to the respondents as counsel fees.</p>

<p>Appeal, No. 2, Jan. T., 1912, by defendant, from judgment of C. P. Bedford Co., Sept. T., 1911, No. 236, on verdict for plaintiff in case of Harold Weaverling, by his Grandfather and next friend, George Smith v. Joseph E. Thropp.</p> <p>Trespass to recover damages for personal injuries. Before Woods, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $2,000.00 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, Avas refusal to direct a verdict for defendant.</p>

<p>Wills — Construction—Bequests—“Balance of estate.”</p> <p>A testator, after bequeathing to his wife certain personalty, directed that the residue and remainder of his entire estate, should be converted into money and bequeathed $5,000 of this in trust for his wife for her life. He then directed that the residue of his estate be divided into three equal parts or shares and bequeathed one share to a trustee in trust to pay the interest or dividend thereof to his daughter A. during the life of her husband or their issue in the event of her death, and at his death the principal to A. or her lawful issue, and providing that should she die without lawful issue then the “share should revert to my estate and be distributed as the balance of my estate.” He then directed “One other of the full, equal third parts or shares of my residuary estate, I give, devise and bequeath unto my daughter, H., intermarried with F., or their issue. Should my daughter, H., die subsequent to my own'death without lawful issue, then the said one-third part or share shall revert to my estate and be distributed as the balance of my estate.” The other third part he gave absolutely to his daughter L. The testator later directed that “should all my daughters be dead without issue at the time of the death of my wife, I will and direct that whatever of my estate remain, shall be divided into four equal parts or shares and disposed of” to testator’s brother’s and nephews. Testator’s daughter H. died subsequent to him intestate and without issue leaving to survive, her a husband. Held, (1) that H. took a life interest only in the one-third part of the estate bequeathed to her; (2) that the words “balance of my estate” were used in the sense of the rest or residue of testator’s estate; (3) that the share of the testator’s estate bequeathed to H. became again, at her death, without leaving issue surviving, a part of testator’s estate, and passed to the other two daughters under the trusts of the will as though it had never been bequeathed to her; (3) that the husband of H. took no interest in the share of the fund bequeathed to his wife for life.</p>

<p>Appeal, No. 30, Jan. T., 1912, by plaintiff, from decree of C. P. Fayette Co., No. 598, in Equity, awarding distribution in case of J. M. Reid v. E. H. Reid, Celia M. R. Boyts, Executrix of B. F. Boyts, deceased, George R. Scull, Administrator of Edward Scull, deceased, and Somerset Trust Company, trustee.</p> <p>Bill for an account. Before Umbel, P. J.</p> <p>The facts appear by the opinion of the Supreme Court. See also Reid v. Reid (No. 2), 237 Pa. 176, and Reid v. Reid (No. 3), 237 Pa. 182</p> <p>Errors assigned, among others, were (12-13-16-19) in not answering plaintiff’s requests, and (11.) the decree of the court.</p> <p>— It is error for the court not to answer the requests for findings of fact and conclusions of law filed by a party. Hoyt v. Kingston Coal Co., 203 Pa. 509; Lehigh Valley Coal Co. v. Everhart, 206 Pa. 118.</p>

<p>Equity — Trusts and, trustees — Glaim against trust fund — Statute of limitations.</p> <p>1. In an equity proceeding to control tbe distribution of proceeds of tbe sale of the property of a corporation in which the award was made in accordance, with a scheme of distribution previously arranged by the parties, it is not error for the court to disregard the claim of one of the stockholders where it appears that the claim was stale and outlawed when asserted.</p> <p>Trusts — Trustees—Trust company — Interest on trust funds.</p> <p>2. A trust company which commingles funds held by it in trust for certain specified uses with its general deposits, in the form of a general checking account in its own name, as trustee, should' pay the- same interest thereon that it would pay to a third party who carried with it a deposit of like character.</p>

<p>Appeal, No. 31, Jan. T., 1912, by J. M. Reid, surviving partner of J. M. DuShane, B. F. Boyts and J. M. Reid, late partners, doing business under the firm name of Boyts, Porter & Co., from decree of C. P. Fayette Co., No. 598, in Equity, in the case of J. M. Reid y. E. H. Reid, Celia M. R. Boyts, executrix of B. F. Boyts, deceased, George R. Scull, administrator of Ed. Scull, deceased, and Somerset Trust Company, trustee.</p> <p>Bill for an account. Before Umbel, P. J.</p> <p>The opinion of the Supreme Court states the case. See also Reid v. Reid (No. 1), 237 Pa. 171, and Reid v. Reid (No. 2), 237 Pa. 176.</p> <p>Error assigned was the decree of the court</p>

<p>Equity — Courts—Condition of record — Appeals.</p> <p>On an appeal from a decree of the court below on a bill in equity, tbe Supreme Court will refuse to dispose of the case and remit it for re-trial where the record is voluminous, tbe requests for findings of fact and law are numerous and complicated, tbe answers of tbe court thereto, in many instances, confused and conflicting, leaving it uncertain as to what, in the judgment of tbe court below, were tbe facts or tbe law of the case, and where in its findings tbe court below overlooked or disregarded several of tbe questions legitimately raised in tbe case, and fail to note the obvious difference between some of the defendants named in tbe bill.</p>

Appeal, No. 42, Jan. T., 1912, by George A. Shipe and Claud Sbipe, caveators, from decree of O. C. Northumberland Co., Feb. T., 1910, No. 14%, refusing issue devisavit vel non in Estate of NicM olas Timmes, deceased. Caveat against probate of will. Petition for issue. Before Savidge, P. J. The opinion of the Supreme Court states the case. Errors assigned were in dismissing exceptions to adjudication.

<p>Corporations — Foreign corporations — Doing business within State — Registration—Establishment of agencies — Act of April 22, 1874, P• L. 108.</p> <p>1. The State is not concerned about the number of offices, or places of business, a foreign corporation may choose to establish, but when two or more are established, the law requires an agent to be registered for each separate office or place of business. The corporation, and not the State, determines whether in the conduct of its business more than one office, or place of business, is required.</p> <p>2. In those cases in which it has been held necessary for a foreign corporation to register more than one agent in this State there was in fact separate and apart from the originally designated place of business, a separate business place, or a branch store, or an independent establishment, opened for the general transaction of business in the community where the new place was established.</p> <p>Corporations — Foreign corporations — Registration—Act of April 22, 1874, P. L. 108.</p> <p>3. A corporation engaged in the iron business having ore mines in Michigan, a principal office in Ohio, an office for the transaction of business in the city of Pittsburgh, and a registered agent in the State of Pennsylvania, has sufficiently complied with the requirement as to registration of the Constitution and the Act of April 22, 1874, although it has not registered an additional agent, or established another place of business in Pennsylvania where it stored its ores in yards leased by it for the purpose, to be smelted by a furnace company under a contract made in Ohio by which the ores were to be sold and delivered to the furnace company from time to time, and paid for by pig iron delivered to the iron company, and stored by it in the yards which it leased.</p>

<p>Corporations — Foreign corporations — Registration—Act of April 22, 187k, P■ L. 108.</p> <p>A corporation engaged in the iron business having ore mines in Michigan, a principal office in Ohio, an office for the transaction of business in the City of Pittsburgh; and a registered agent in the State of Pennsylvania, has sufficiently complied with the requirement as to registration of the constitution and the Act of April 22, 1874, P. L. 108, although it has not registered an additional agent, or established another- place of business at a place in Pennsylvania where it stored its ores in yards leased by it for the purpose, to be smelted by a furnace company under a contract made in Ohio by which the ores were to be sold and delivered to the furnace company from time to time, and paid for by notes secured by pig iron as collateral, delivered to the iron company, and stored by it in the yards which it leased.</p>

Appeal, No. 47, Jan. T., 1912, by defendant from order of C. P. Fayette Co., Dec. T., 1910, 375, making absolute rule for judgment for want of sufficient affidavit of defense, in case of Westinghouse Air Brake Co. v. Walter C. Harris, receiver of Dunbar Furnace Co. Buie for judgment for want of sufficient affidavit of defense. Before Umbel, P. J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 98, Jan. T., 1912, by plaintiff, from judgment of C. P. Northumberland Co., Sept. T., 1910, No. 589, nonsuit in case of Frank Kurel v. The Borough of Shamokin.</p> <p>Trespass to recover damages for personal injuries. Before Aitten, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned ivas refusal to take off nonsuit.</p>

<p>Corporations — Directors—Right to inspect boohs.</p> <p>1. A director has the unqualified right to inspect the books of the corporation and all that he need show to entitle him to an inspection is that he is a director of the company, that he has demanded permission to examine and that his demand has been refused.</p> <p>Mandamus — Corporations—Foreign corporations — Directors— Duties of directors- — Right to inspect boohs — Alternative writ— Answer.</p> <p>2. A writ of mandamus lies against locally resident directors and officers of a foreign corporation which is registered and has its plant and principal office and all its books in this State, requiring them to permit a petitioner who is a director in the company to inspect its books and papers, for the purpose of enabling him to perform his duties as director.</p> <p>3. In such a case, it is not a justification for refusing plaintiff’s request that prior to his last election as director, he had neglected his duties as an officer of the corporation, interfered with its management, and promoted a competing company, of which he was president; and that there was no allegation of wrong doing on the part of the defendants.</p> <p>4. The exercise of the power of mandamus in such a case is not an interference with the management of the internal affairs of a foreign corporation, and it is the only adequate remedy to enforce a manifest right, where the books desired and the directors haying custody of them are within the jurisdiction of the court, and a foreign court can not grant the relief.</p>

Appeal, No. 134, Jan. T., 1911, by defendant, from judgment of C. P. Lancaster Co., March T., 1910, No. 18, on verdict for plaintiff in case of Mary A. Gensemer v. Conestoga Traction Company. Trespass to recover damages for personal injuries. Before Hassler, J. The opinion of the Supreme Court states the case. Verdict for plaintiff for $2,100 and judgment thereon. Error assigned was refusal to direct verdict for the defendant.

<p>Negligence — Railroads—"Stop, looh and lisien” crossing — Contributory negligence — Case for jury.</p> <p>In an action for damages for personal injuries sustained in a railroad crossing accident tlie case is for the jury and a verdict for the plaintiff will be sustained Avhere it appears by the testimony of plaintiff’s witnesses that she stopped, looked and listened at the usual place for stopping, one hundred feet from the tracks of the defendant railroad, at which point she could see the tracks for sixteen hundred feet; that she continued to look and listen as she drove upon the crossing and first saw the train when- she was half way across and when it was eight hundred feet away and running seventy-five miles an hour; that the crossing was unguarded by gate or flagman and no warning of the approach of the train was' heard; and that the rear of the wagon in which plaintiff was driving was struck on the last rail of the last track.</p>

<p>Appeals — Interlocutory decree — Executors and administrators —Decree to file account.</p> <p>1. A decree directing executors to file an account is not a final decree from which an appeal lies.</p> <p>Executors and administrators — Citation—Decree to file account — Direction to executors to charge themselves with moneys— Practice, O. C.</p> <p>St. The Orphans’ Court, in making absolute a rule to show cause why a citation to an executor to file an account should not issue, has no jurisdiction to direct in the same decree that the executors shall charge themselves with a sum of money stated, “and interest, and with any and everything else with which they may he properly charged, after which the court will make the distribution.”</p>

Appeal, No. 52, Jan. T., 1912, by defendant, from judgment of C. P. Lancaster Co., Sept. T., 1910, No. 14, on verdict for plaintiff in case of Charles Krimmel v. S. R. Moss Cigar Company, Incorporated. Assumpsit on a parole contract. Before Landis, P. J. The opinion of the Supreme Court states the case.

<p>Appeal, No. 140, Jan. T., 1911, from judgment of C. P. York Co., Jan. T., 1909, No. 43, on verdict for plaintiff in case of John E. Chronister v. York Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Bittinger, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $2,475.20 and judgment thereon.</p> <p>Error assigned, among others, was refusal to direct verdict for the defendant.</p>

<p>Receiver — Compensation—Counsel fees.</p> <p>An order fixing the amount of commissions of a receiver and allowing counsel fees will not be reversed except on clear proof of error where the whole subject was carefully considerd' by the court and the compensation allowed was based on the work, responsibility assumed, and successful management of the affairs of the corporation by the receiver and his counsel.</p>

Appeal, No. 106, Jan. T., 1912, by James J. Logan, administrator to Grover F. Grotbe, deceased, from decree of O. C. York Co., dismissing exceptions filed to report of auditor making distribution in estate of Frederick Grothe, deceased. Exceptions to recommitted report of Ed. Chapin, auditor, distributing the balance on the several accounts of the Security Title & Trust Company, administrator, d. b. n. c. t. a. of the estate of Frederick Grothe, deceased.

Appeal, No. 22, Jan. T., 1912, by Mary Nelson, from order of O. C. York Co., dismissing petition in the estate of Alexander J. Frey. Petition for leave to intervene in a petition for a citation upon a testamentary trustee. Before BittingER, P. J. The opinion of tbe Supreme Court states the case. Error assigned was in refusing to allow petitioner to become a party respondent.

Appeal, No. 184, Jan. T., 1912, by defendant, from judgment of C. P. York Co., April T., 1911, No. 33, on verdict for plaintiff in case of William H. Powell v. S. Morgan Smith Company. Trespass for personal injuries. Before Ross, J. The opinion of the Supreme Court states the case.

<p>Negligence — Master and servant — Employment—Change of employment — Safe place to work — Excavations—Sewers.</p> <p>1. In an action to recover damages for personal injuries alleged to have been received by an employee of a street railway company, the defendant cannot be heard to say that plaintiff was not in its employ at the time he was injured and that his injuries resulted from the negligence of another, where it appears that up to within a few days of the time of the accident, and for several years prior, the plaintiff was employed by the defendant railway company as a laborer on its tracks; that the chief engineer of the defendant company, who was also vice president of an electric light company, directed the plaintiff’s boss .to send him and another laborer to work at a pit which was being dug by the light company; that the two employees were directed by their foreman to go to work at that place and they did so, without any indication whatever that they were not to continue to be the employees of defendant company or that the work being done was not being done by it; that the plaintiff while working at the pit, reported to the defendant’s foreman who kept his time and furnished him his transportation over the lines of the company and the tools with which he worked; that he received his wages from the defendant company through the time he worked at the pit in the same manner as previously; that the chief engineer of the defendant company supervised the work; and that after the plaintiff had worked in the pit about eleven days, it caved in and caused plaintiff’s injuries.</p> <p>2. In employing servants to work in excavations such as sewers, trenches, pits and cellars, the duty is upon the master to see to it that his servants have a reasonably safe place to do the work to which he assigns them. To prevent the caving in of the walls of a pit when such caving is likely to happen by reason of the depth of the pit, it is the duty of the employer to brace up and shore its sides.</p>

<p>Appeal, No. 186, Jan. T., 1912, by defendant, from decree of C. P. York Co., October T., 1909, No. 1, in equity granting subrogation in case of Hopkins Manufacturing Company y. Percival C. Ketterer.</p> <p>Bill to stay writ and compel the assignment of a mortgage. Before Wanner, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned, among others, was the decree of the court.</p> <p>— An unconditional tender to the mortgagee in person is a necessary condition precedent to equity’s jurisdiction to decree subrogation: Kyner v. Kyner, 6 Watts, 221; Graff’s Est., 139 Pa. 69; Forest Oil Co.’s App., 118 Pa. 138; Wagenblast v. McKean, 2 Grant (Pa.) 393; Murgrave v. Dickson, 172 Pa. 629; Knouf’s App., 91 Pa. 78.</p> <p>An attorney at law has no authority as such to sell or assign the claim of his client: Rowland v. Slate, et al., 58 Pa. 196; Campbell’s App., 29 Pa. 401; Tompkins v. Woodford, 1 Pa. 156; Insurance Co. v. Roberts, 6 Phila. 516.</p> <p>In such application great care should be taken by the court that the subrogation will work no injustice to the rights of others. And it will never be allowed, where the equity of the party seeking it is no stronger than the party affected by it: Knouf’s App., 91 Pa. 78; McGinnis’s App., 16 Pa. 445; Lloyd v. Galbraith, 32 Pa. 103; Erb’s App., 2 P. & W. 296; Bishop v. Ogden, 9 Phila. 524; Forest Oil Co.’s App., 118 Pa. 138.</p> <p>Wunderle v. Ellis, 212 Pa. 618; Hamilton v. Dobbs & Robinson, 19 N. J. Eq. 227; Lyon’s App., 61 Pa. 15; Weist v. Lee, 3 Yeates 47; Mynick v. Beckings, 30 Pa. Superior Ct. 401; Santee v. Santee, 64 Pa. 473; Hale v. Patton, 60 N. Y. 233.</p>

<p>Appeal, No. 131, Jan. T., 1912, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1907, No. 1075, on verdict for tbe plaintiff in case of James C. Husvar v. Delaware, Lackawanna & 'Western Railroad Company.</p> <p>Trespass for personal injuries. Before Heydt, P. J., specially presiding.</p> <p>Tbe opinion of tbe Supreme Court states tbe case. See also Husvar v. Delaware, Lackawanna & Western Railroad Company, 232 Pa. 278.</p> <p>Tbe jury found a verdict in favor of tbe plaintiff in tbe sum of $5,000, upon wbicb judgment was entered. Defendant appealed.</p> <p>Error assigned was in refusing binding instructions for tbe defendant.</p>

<p>Constitutional law — Title of statute — More than one subject— Appropriation — Act of May IS, 1909, P. L. 8S5.</p> <p>1. It is not an infringement of Article III, Section 3, of the Constitution if there are several provisions in a bill, providing they are connected with and germane to the one general object of the legislation. It is sufficient if they relate to and are a means of carrying out the one general provision of the act.</p> <p>2. The title of a bill- need not embody all the distinct provisions of the bill nor serve as an index or digest of its contents, but it is sufficient if the title fairly gives notice of the real subject of the bill, so as reasonably to lead to an inquiry into what is contained in the body of the bill.</p> <p>3. The Act of May 13, 1909, P. L. 835, entitled “An act making an appropriation to the Western Pennsylvania Hospital” and providing for the appropriation of a sum of money and further that the amount so appropriated should be a non-interest bearing lien upon the premises “for the use of the Commonwealth of Pennsylvania” to be refunded if the hospital building should be converted to private use, does not offend against Section 3, of Article 3, of the Constitution. The one subject of the act is the appropriation made to the designated beneficiary; the security and lien were not separate and distinct subjects, but simply provisions to compel the hospital to apply the appropriation to charitable purposes and they are naturally and properly connected with the main subject.</p> <p>Constitutional law — Special legislation — Creation of liens— Section 1, Art. Ill, of the Constitution — Appropriations.</p> <p>4. The Act of May 13, 1909, P. L. 835, providing for an appropriation of money to the Western Pennsylvania Hospital, and directing that the amount so appropriated should be “a non-interest bearing lien on the said premises for the use of the Commonwealth of Pennsylvania,” does not violate Section 7, of Art. Ill, of the Constitution of Pennsylvania, which provides that “the General Assembly shall not pass any local or special law authorizing the creation, extension or impairing of liens.” This section of the Constitution does not apply to liens in favor of the State.</p> <p>5. The general business of the legislative power is to establish laws for individuals, not for the sovereign; and when, the rights of the Commonwealth are to be transferred or affected, the intention must be plainly expressed or necessarily implied. This rule of construction applies not only to statutes, but also to constitutions.</p> <p>6. A construction of the Act of May 13, 1909, P. L. 835, which would make it unconstitutional and void because of a lack of power in the State to reserve the lien in favor of itself, would render the whole act void and the hospital would have no right to any part of the appropriation. The appropriation apd the provision for the lien are so interdependent and connected that if the provision for the lien falls, the appropriation also falls.</p> <p>7. If part of a statute which is void is vital to the whole, and the other provisions are so dependent upon it and so connected with it that it may be presumed that the legislature would not have passed one without the other, the whole statute is void.</p> <p>8. Tbe courts in determining that Section 7, of Art. Ill, of tbe Constitution does not deprive the Commonwealth of its right to protect itself against the diversion of moneys appropriated to charitable purposes will give great weight and consideration tó the fact that the legislature both before and after the adoption of the present Constitution passed numerous acts creating and enforcing liens in favor of itself.</p> <p>9. The lien in favor of the State created by the Act of May 13, 1909, P. L. 835, making an appropriation of money to the Western Pennsylvania Hospital, is prior to a mortgage subsequently created by the hospital to secure an issue of bonds.</p>

<p>Corporations — Corporate Bonds and Mortgages — Coupon Bonds Detached .Coupons — Arrears of interest — Preference.</p> <p>1. A bona fide holder of coupons detached from bonds secured by a corporate mortgage, who is not a holder of the bonds themselves, is entitled to a preference in the proceeds of a foreclosure sale given to arrears of interest by a clause of the mortgage which provided that the net proceeds of a sale by the trustee under the mortgage should be applied, “first, ...... towards payment to holders of unpaid bonds......of all arrears of interest remaining unpaid on such bonds.”</p> <p>2. Each bond with the coupon attached is an obligation protected by the mortgage. Each coupon is a part of each bond bearing upon its face the number of the bond to which it belongs, and, if the owner of any bond chooses to sever it from its coupon, he thereby divides it, and the holder of the coupon becomes equitably the owner of a proportion of the bond.</p>

<p>Corporation — Trust companies — Insolvency—Dissolution—Voluntary closing — Sufficiency of answer.</p> <p>1. A traverse to the averment of insolvency in a petition by the Attorney General for a receiver to wind up the affairs of a trust company, should be positive and unequivocal, and it is no sufficient traverse for the answer to deny the necessity for dissolution, on the ground that it had voluntarily closed its doors, not on account of insolvency, but in order to conserve and distribute its assets; and even when the traverse is positive and unequivocal, it is ineffectual if the fact that the institution has closed its doors is admitted,</p> <p>2. Insolvency,' in its legal sense as dealt with by the law regulating banks, trust companies and kindred corporations, exists whenever such an institution, from any cause, is unable to pay its debts in the ordinary or usual course of its business.</p> <p>Appeals — Certiorari—Order dissolving corporation.</p> <p>3. ’ No appeal lies from an order of the Court of Common Pleas of Dauphin County dissolving a corporation. If an appeal is taken from such an order it can only be regarded by the appellate court as a certiorari, taking nothing up except the record in the case.</p>

<p>Appeal, No. 6, May T., 1912, by plaintiff, from judgment of C. P. Dauphin Co., No. 3, Commonwealth Docket, 1912, vacating writ of mandamus in the case of Commonwealth of Pennsylvania, ex rel., Heber McDowell, appellant, v. Robert McAfee, Secretary of the Commonwealth of Pennsylvania.</p> <p>Mandamus proceedings directed against the Secretary of the Commonwealth to compel him to lay the returns of the relator’s election before the Governor so that a commission to him as alderman might issue.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing the petition.</p> <p>McDowell v. Allegheny County, 59 Pitts. Leg. J. 603; Com., ex rel., Barrett v. McAfee, 232 Pa. 36.</p> <p>Etters v. McAfee, 229 Pa. 315; Walsh v. Com. 89 Pa. 419; James v. Commissioners of Bucks Co., 13 Pa. 72; Easton Boro. v. Lehigh Water Co., 97 Pa. 554.</p>

<p>Appeal, No. 4, March T., 1912, by defendant, from judgment of C. P. Dauphin County, March T., 1910, No. 207, on verdict for plaintiff in the case of Jacob H. Brown v. Central Pennsylvania Traction Company.</p> <p>Trespass for personal injuries. Before Gillan, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury found a verdict for the plaintiff in the amount of $2,500 and judgment thereon. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s request for withdrawal of a juror.</p> <p>Carothers v. Pittsburgh Railways Company, 229 Pa. 558; Vivian v. Challenger, 45 Pa. Superior Ct. 1; Connelly v. Pittsburgh Railways Company, 230 Pa. 366; Holden v. Penna. R. R. Company, 169 Pa. 1; Hollis v. United States Glass Company, 220 Pa. 49; Wagner v. Hazle Township, 215 Pa. 219; Saxton v. Pittsburgh Rys. Company, 219 Pa. 492.</p>

<p>Taxation — State taxes — Capital stock taxes — Trust companies —Reports—Duties of Auditor General — Act of June IS, 1907, P. L. 61J) — Banks and Banking.</p> <p>1. The report required to be filed by a trust company under the Act of June 13, 1907, P. L. 640, is intended to furnish the. basis upon which the Auditor General shall fix the taxable value of the shares of stock but it is not conclusively binding upon him, and if he is not satisfied with its correctness, it is his duty to inquire further and make settlement upon the actual value of the stock as shown by the facts.</p> <p>2. The Act of February 11, 189o, P. L. 4, transferring supervisory duties in matters relating to banking institutions from the Auditor General to the Commissioner of Banking in no way interferes with the power of taxation to be exercised by the Auditor General, who in the performance of his duties in this respect exercises his own functions without reference to what the Commissioner of Banking may do in matters pertaining to the supervision and regulation of banking institutions. In the exercise of his powers the Auditor General is not bound by the rules and regulations of the banking department.</p> <p>3. Where upon settlement of an account for taxes upon the capital stock of a trust company the return as filed by the company appraises the value of its shares at $20,097,466.50, but it appears from data contained in the report that the company appraised securities representing undivided profits at their cost price and that their reported value in the tax year was greatly in excess of sucb price, which difference the company recognized and carried as a reserve account, the Auditor General may fix such higher value upon these securities as a basis for ascertaining the actual value of the shares.</p>

<p>Insurance — Fire insurance — Increase of risk — Keeping of gasoline on premises — Repairs.</p> <p>1. A provision in a policy of fire insurance prohibiting the keeping or use of gasoline on the premises without the consent of the insurance company is not to be strictly construed; and if it appears that a fire occurred from the use of a gasoline torch in the burning off of old paint on the building insured, and not from any explosion of gasoline stored on the premises, the mere use of gasoline in the torch under such circumstances, is not sufficient to prevent a jury from returning a verdict in favor of the insured.</p> <p>2. A provision in a policy of fire insurance that the working of carpenters, roofers, tinners, gas-fitters, plumbers, or other mechanics in building, altering or repairing the premises without permission of the company, will render the policy void, does not apply to such repairs as are necessary for the proper care and preservation of the property, and the question of what repairs are necessary for proper care and preservation, is one for the jury. In making the contract of insurance, the parties must be regarded as having had in contemplation the proper care and preservation of the premises insured.</p>

<p>School law — Petition for independent school district — Bight to withdraw names from petition.</p> <p>1. One who has signed a petition calling for the action of a judicial, legislative, or executive officer or body, may withdraw his name as of right before the jurisdiction of that tribunal, body or officer, has attached. In legislative and municipal bodies, and before officers or boards, whose duty involves the power to decide, and to exercise judgment, or discretion, jurisdiction cannot be said to attach until formal action has been taken on the subject matter of the petition.</p> <p>2. A petitioner does not have the right per se to withdraw his name after jurisdiction has attached, and in such cases never has the right to withdraw without leave of court.</p> <p>3. If a petitioner has been induced to sign by misrepresentations, he may withdraw his name even after jurisdiction has attached, but this must be done with leave of court, or other body or tribunal having jurisdiction of the proceeding.</p> <p>4. In those cases, in which jurisdiction has attached, the facts that several petitioners desire to withdraw their names, should be taken into consideration by the court; and, if, a sufficient number desire to withdraw, the court would not only be warranted in dismissing the petition, but in many instances should do so,' on the ground that under such circumstances the power of the court should not be asserted against the real wishes of signers whose names are necessary to give jurisdiction when they in good faith desire to withdraw from the proceeding.</p> <p>School law — Independent school districts — Abolition of district by Act of May 18, 1911, P. L. 809.</p> <p>' 5. Where an independent school district was to go out of existence on the first Monday of July, 1911, under the provisions of the School Code of May 18, 1911, P. L. 309, it was premature to present a petition on June 20, 1911, to create a new independent district out of the very same territory embraced in the old district while that district was still, in existence. It was not contemplated by the act that every old independent district should be of right created into a new district, although the act does contemplate the creation of new independent school districts which might or might not include old districts.</p>

<p>Corporations — Insurance company — Mutual companies — Surplus — Distribution of surplus money among policy holders — Equity —Jurisdiction.</p> <p>1. Where the charter of a life insurance company provides: “That all the net profits to be derived from the business of life insurance, after deducting the expenses of the company, shall be divided pro rata among the holders of the policies of such life insurance equitably and ratably, as the directors of said company shall and may from time, to time ascertain, determine and report the same for division,” and the company has accumulated in its insurance business a large surplus representing net profits of such business, the directors may not award to the holders of matured policies arbitrary sums based on no calculations by an actuary or by themselves, but they are bound to ascertain and pay over to such policy holders their equitable and ratable proportion of the surplus.</p> <p>2. Equity has jurisdiction in such a case to compel the distribution of net profits and the allotment to the policy holder of his pro rata share thereof.</p>

<p>Appeal, No. 155, Jan. T,, 1911, by plaintiff, from decree of C. P. No. 2, Phila. Co., March T., 1908, No. 2619, dismissing bill in equity in case of Howard E. Cornell, Receiver of the Neafie & Levy Ship & Engine Building Company, Penn Works, Philadelphia, v. Mathias Seddinger, John H. Watt, Eli Kirk Price, Somers N. Smith, Laurence B. Levy, Administrator of the Estate of Edmund L. Levy, deceased, and William C. Watt and Louis H. Watt, Executors of the last will and testament of John H. Watt, deceased.</p> <p>Bill in equity for an accounting. Before Wilt-bank, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court below entered the following decree:</p> <p>And now, to wit, this 28th day-of November, 1910, the above case coming on to be heard upon bill, answer and proofs, and the exceptions filed to the original opinions having been dismissed, and for the reasons set forth in the said opinion, it is now ordered, adjudged and decreed as follows:</p> <p>1. That as to the defendants, John H. Watt and Eli Kirk Price and Laurence B. Levy, as administrator of the estate of E. L. Levy, deceased, the bill of complaint be dismissed, the cost as to these three defendants to be paid by the complainants</p> <p>2. That the defendants, Mathias Seddinger and Somers N. Smith are severally and jointly liable under the terms of the said bill, and that they be and are hereby ordered and decreed to pay to Howard E. Cornell, Receiver of the Neafie & Levy Ship & Engine Building Company, Penn Works, Philadelphia, the sum of one hundred and twenty-four thousand ($124,000) dollar, covering the depletion of the capital stock by the declaration of dividends by the Neafie & Levy Ship & Engine Building Company, Penn Works, Philadelphia, on or about the 25th day of November, 1901, the second day of April, 1902, and the 30th day of March, 1903, together with interest on $28,000 from December 10th, 1901; on $48,000 from April 7th, 1902, and on $48,000 from April 6th, 1903.</p> <p>Error assigned, among others, was (1) the decree of the court, quoting it.</p> <p>— In case of insolvency the capital stock is a trust fund for the benefit of all the creditors of a corporation: Lane’s App., 105 Pa. 49.</p> <p>Counsel have been unable to find any reported case in Pennsylvania in which an action was brought to recover upon the common law liability of directors for the ultra vires payment of dividends, but recovery has frequently been had in England upon this fundamental liability, the only provision upon which the cases, hereafter to be cited, are founded, being the section of the Companies’ Act which provides that the liquidator may enforce the payment of any sums unlawfully expended: Flitcroft’s Case, L. R. 21 Ch. Div. 519; Nat. Funds Assurance Co., L. R. 10 Ch. Div. 118.</p> <p>These appellees were bound by the company’s bylaws. They were not allowed any latitude as to dividends. These could not be declared except out of profits and then only prudently: Trustees Mut. Bldg. Fund & Dollar Savings Bank v. Bosseiux, 3 Fed. Repr. 817.</p> <p>Kisterbock’s App., 51 Pa. 483, clearly points out the knowledge of affairs that a director must possess.</p> <p>See also Githers v. Clarke, 158 Pa. 616; McGowan v. Steamboat Co., 181 Pa. 55.</p> <p>Leeds Est., Bldg. & Investment Co. v. Shepherd, L. R. 36 Ch. Div. 787, is a most authoritative case.</p> <p>In the case at bar the balance sheet or treasurer’s report was delusive in that it did not represent the true character of “Work in Progress” and is therefore not ruled by Stringer’s Case, L. R. 4 Ch. App. 475, where the sheet clearly showed the nature of the assets and the claimants gave credit with a full knowledge of the hazardous nature of the company.</p> <p>Oxford Benefit Bldg. & Investment Society, L. R. 35 Ch. Div. 502, is a case that is particularly applicable to the facts here developed.</p> <p>See also Municipal Freehold Land Co. v. Pollington, 63 L. T. (N. S.) 238; Salisbury v. Metropolitan Ry. Co., 22 L. T. (N. S.) 839; Martin v. Webb, 110 U. S. 7 (3 Sup. Ct. Repr. 428); Scott v. Eagle Fire Co., 7 Paige’s Ch. 198; Maisch v. Saving Fund Soc., 5 Phila. 30; Hutchinson v. Curtiss, 92 N. Y. Supp. 70; Appleton v. American Malting Co., 54 Atl. Repr. 454; Whittaker v. Bank, 52 N. J. Eq. 400 (29 Atl. Repr. 203); Gratz v. Redd, 4 B. Monroe (Ky.) 178; Shields v. Hobart, 172 Mo. 491 (72 S. W. Repr. 669); Penna. Iron Co. v. MacKenzie, 190 Mass. 61 (76 N. E. Repr. 228); Rorke v. Thomas, 56 N. Y. 559; Swartley v. Creamery Co., 135 Iowa 573 (113 N. W. Repr. 496); Main v. Mills, 6 Biss. 98.</p> <p>— Directors who act in good faith in declaring a dividend out of capital are not to be held liable if subsequently it turns out that the assets were incorrectly stated by the treasurer or if the assets afterward prove worthless. A director is under no duty to examine the books of the corporation, and if under the circumstances of this case liability is imposed upon directors, no business man could be induced to act upon any board. It is an utter impossibility for any man in a large corporation such as this to ascertain the correctness of a subordinate’s report. In large corporations there must be a delegation of duties and where as in this case the business amounted to over $8,000,000, the absurdity of the appellant’s contention is evident: Witters v. Sowles, 31 Fed. Repr. 1; Spering’s App., 71 Pa. 11; Watts’s App., 78 Pa. 370; Swentzel v. Penn Bank, 147 Pa. 140; Com. v. Bldg. & Loan Association, 20 Pa. Superior Ct. 101; Hallmark’s Case, L. R. 9 Chancery Div. 329; Stringer’s Case, L. R. 1 Chancery App. 475.</p> <p>The remedy under the statutes of Pennsylvania is exclusive of any rights of common law, and the failure to proceed in the statutory method is fatal to the appellant’s appeal: Miller Paper Co. v. York Coated Paper Co., 34 Pa. Superior Ct. 315.</p> <p>— That there is both a common law and a statutory liability on the part of the directors of a Pennsylvania corporation, has been held over and over again in well considered cases in the State of Pennsylvania: Gunkles’ App., 48 Pa. 13; Miller Paper Co. v. York Coated Paper Co., 34 Pa. Superior Ct. 315; Lane’s App., 105. Pa. 49; Bell’s App., 115 Pa. 88; Swearingen v. Dairy Co., 198 Pa. 68; Cook v. Carpenter, 212 Pa. 165.</p> <p>The bill in equity filed in this case was not for the purpose of holding the directors liable for the debts of the corporation and hence does not come within the purview of Section 24 of the Act of April 29,1874, P. L. 73. This action on the contrary was to compel the directors to replace the funds in the capital stock of the company which were wastefully paid out by their ultra vires acts.</p>

<p>Appeal, No. 50, Jan. T., 1912, by Frederick Black, defendant, from decree of C. P. No. 5, Phila. Co., Sept. T., 1910, No. 3156, awarding specific performance in case of Francis H. Boblen and Charles N. Black v. Frederick Black, Pearce Bailey, Edith L. Bailey and James D. Black, Executor of Mary K. L. Black, deceased.</p> <p>Bill in equity for specific performance. Before Ralston, J.</p> <p>The material provisions of the contract in suit were as follows, the land in question having been purchased by the vendors in the contract at a master’s sale following proceedings in partition, though they had not yet received their deed:</p> <p>1. The parties of the first part agree to sell and the party of the fourth part agrees to purchase for the sum of ten thousand dollars when title is obtained from the master in the partition proceedings, two certain tracts of land known as tracts Nos. 1 and 2 on the plan of said partition proceedings now pending in Delaware county containing some 44 acres by survey (but 35 acres available land) saving and excepting therefrom the strip of land lying to the north and west of the southern line of the right of way granted to the South Western Street Passenger Railway Company together with the right of way over a strip of land 100 feet wide, extending from a point near the ferry wharf to and across the Back Channel upon which the South Western Street Passenger Railway Company’s track is located, for the price of ten thousand dollars upon the following terms and conditions, viz:</p> <p>2. The partition proceedings are to be immediately settled, and the party of the fourth part to be released from his bids, except for liability for the deposit money, if not paid in, and he to release all right, title and interest in the fund as heir of Miss E. N. Black.</p> <p>3. The party of the fourth part to give a purchase money mortgage in the said sum of ten thousand dollars, payable twenty years after the date thereof with interest at the rate of four per cent, per annum and at the expiration of five years from the date thereof, to make yearly payments of five hundred dollars on account of the principal of the said mortgage.</p> <p>4. The party of the fourth part agrees to improve the property by buildings and other permanent betterments, to the value of not less than three thousand dollars* nor more than five thousand dollars. And he further agrees to submit the estimate for such improvements to the parties of the first part, and after the completion of such work to submit bills and receipts as vouchers therefor.</p> <p>5. And it is further understood and agreed that the deed to said party of) the fourth part shall be delivered in escrow to John Rodgers, not to be delivered to said party of the fourth part, until the said sum of three thousand dollars shall have been expended as aforesaid, or until the security for the expenditure of the said sum of three thousand dollars within one year from the date of obtaining title from the master by the said Bohlen and Black shall have been given by said party of the fourth part, satisfactory to the said parties of the first part. And if said improvements shall not have been completed, or said security entered within one year from the date upon which said parties of the first part shall have obtained title from the master then this contract shall be void and of no effect, and the said deed in escrow shall be redelivered to said parties of the first part.</p> <p>6. The said deed shall contain a clause of defeasance whereby at any time within twenty years from the date ofl the said deed, upon one month’s notice in writing, and upon the payment of the sum of twelve thousand dollars, together with all sums which may have been expended upon betterments and improvements, authorized and vouched for as above provided, and together with such further sum as will compensate the said party of the fourth part for the way-going crops and emblements, if the notice be so short as to prevent the crops from being harvested by him, — less the amount still due and payable upon the said mortgage — and any other indebtedness by the. party of the fourth part to the parties of the first, second and third parts or any of them,— the title shall immediately revert to and re-vest in the said parties of the first part, and the party of the fourth part shall execute a deed of reconveyance therefor.</p> <p>7. The said mortgage shall include in addition to the usual covenants for the payment of interest, and the yearly payment for the sum of five hundred dollars on account of the principal as above, and for the production of tax receipts and the maintenance of fire insurance to a satisfactory amount, to the' parties of the first part —a covenant for the proper upkeep of the river banks, upon the land conveyeff — and a failure to place and keep said banks in good order, upon notice given in writing to said party of the fourth part, shall be a breach of said covenant for the repair of said banks, and shall render the principal of said mortgage immediately due and payable.</p> <p>The vendors obtained a title to the property under the partition on January 7, 1905. In the meantime Frederick Black had taken possession and continued therein. During his possession he made improvements stated to be of the, value of $8,500. In 1907 plaintiffs submitted to defendant a form of deed, bond and mortgage. These were objected to by defendant, and he in turn in 1908 submitted to plaintiffs a form of deed, bond and mortgage, which were refused by plaintiffs. On June 16, 1910, another form of. deed, bond and mortgage were submitted to defendant, and upon the refusal of them, the bill was filed.</p> <p>Ralston, J., entered the following decree:</p> <p>And now, to wit, July 14, A. D. 1911, the above case having come on for a hearing before me, upon bill, answers and proof, and upon consideration of the same, it is hereby ordered, adjudged and decreed:</p> <p>1. That defendant, Frederick Black, execute and acknowledge a deed, in the form hereto annexed, made a part of this decree, and marked “Exhibit A,” when the same is duly executed and acknowledged by plaintiffs, Francis H. Bohlen and Charles N. Black, and by Margaret W. Bohlen, wife of plaintiff, Francis H. Bohlen, and is tendered by plaintiffs to defendant, Frederick Black.</p> <p>'2. That defendant, Frederick Black, execute a bond and execute and acknowledge a mortgage in the forms hereto annexed, made a part of this decree, and marked respectively Exhibits B and C, and then deliver said bond and mortgage to plaintiffs, Francis H. Bohlen and Charles N. Black, said delivery to be made when and at the time a deed is tendered in the form in this decree provided by plaintiffs to defendant, Frederick Black.</p> <p>3. That defendant, Frederick Black, pay plaintiffs the sum of one thousand dollars ($1,000), which payment shall cover and represent the two installments of principal which fell due on January 7th, 1910, and 1911, respectively, as provided in the above bond and mortgage, and which payment shall be made by defendant, Frederick Black, to plaintiffs when and at the time a deed is tendered by plaintiffs, as in this decree provided.</p> <p>4. That defendant, Frederick Black, pay plaintiffs interest at the rate of four (4) per centum per annum on the sum of ten thousand dollars ($10,000) from Jan-nary 7tlx, 1905, to the date of the delivery by him to plaintiffs of a bond' and mortgage, properly executed and acknowledged, as in this decree provided, said payment to be made when and at the time plaintiffs tender a deed to defendant, Frederick Black, in the form provided for in this decree, said payment to cover and represent the interest due on said bond and mortgage from January 7th, 1905, to the'date of said delivery.</p> <p>. 5'. That plaintiffs, Francis H. Bóhlen and Charles N. Black, shall not be obligated to deliver a deed at the time tender is made by them, as in this decree provided, or at any time- thereafter, unless and until defendant, Frederick Black, executes and acknowledges said deed, tenders and delivers said bond and mortgage properly executed and acknowledged, and pays plaintiffs the sums herein provided for.</p> <p>.. 6. That, defendant,' Frederick Black, pay the costs of this proceeding.</p> <p>: Error assigned, among others, was the decree of the court.</p> <p>— Decree entered makes a new contract: Bannerot v. Davidson, 226 Pa. 287; Bice V; Buckle, 225 Pa. 231; Dinner v. O’Brien, 11 Lack. Jur. 126.</p> <p>: Plaintiffs were guilty of laches: Cook v. Grant, 16 S. & B. 198; Patterson v. Martx, 8 Watts 374;'Parrish v. Koons, 1 Pars. 79; Andrews v. Bell, 56 Pa. 343.</p> <p>' A decree for specific performance is not a matter of course, and should not be granted if the transaction be inequitable and unjust in itself or rendered so by matters subsequently occurring: Friend w Lamb, 152 Pa¡ 529.</p> <p>Agreement does not call for bond. ■</p> <p>.Bill should be dismissed for want of jurisdiction: Kauffman’s App.,.§5 Pa. 383.</p> <p>Where a party would not suffer by a rescission of a contract, except in suchj damages as might be recovered in a suit at law, specific performance will be refused: Fry v. Leopold, 21 Montg. County 135; Friend v. Lamb, 152 Pa. 529; Campbell v. Spencer, 2 Binn. 129; Kauffman’s App., 55 Pa. 383; Dech’s App., 57 Pa. 467; Smaltz’s App., 99 Pa. 310; Finley v. Aiken, 1 Grant (Pa.) 83.</p> <p>— The decree which has been entered places the parties in the exact position they would occupy to-day, had the contract been performed at the- appointed time.</p> <p>There has been no change in the circumstances of the parties which prevents an enforcement of the contract as an entirety; nor does the decree entered impose a new contract upon the parties.</p> <p>The plaintiffs were entitled to receive on January 7, 1905, the purchase money mortgage, and are, therefore, entitled to recover the interest and installments of principal which have accrued since that date: Fasholt v. Reed, 16 S. & E. 266; Hershey’s Est., 213 Pa. 601; Nettleton v. Caryl, 14 Pa. Superior Ct. 443.</p> <p>The plaintiffs have no adequate remedy at law: Kauffman’s App., 55 Pa. 383.</p> <p>The defeasance is merely an option to repurchase. It does not work a forfeiture.</p> <p>The doctrine of laches has no application to this, case : Clarke v. Moore, 1 Joynes & LaTouche 723; Todd v. Pfoutz, 3 Yeates 177.</p>

<p>Appeal, No. 75, Jan. T., 1912, by defendant, from judgment of C. P. Clearfield Co., Dec. T., 1909, No. 202, on verdict for plaintiff in case of Walnut Coal Co. v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for alleged unlawful discrimination. Before Smith, P. J.</p> <p>At the trial the court overruled a motion made by the defendant to require the plaintiff to elect upon which account it would proceed to .trial, tlie statement of claim including a claim for penalties under the Act of June 4, 1883, prohibiting unjust discrimination, and a claim based upon the alleged failure of the defendant to comply with the common law obligation to have and maintain an adequate equipment for the transportation of traffic tendered to it. (1),</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $78,468. Defendant appealed.</p> <p>Errors assigned, among others, were (1) overruling defendant’s motion as above, and (9) answer to defendant’s point, the point and answer being quoted in' the opinion of the Supreme Court.</p> <p>— The State Act of 1883 is inoperative because of the interstate commerce acts of the Congress of the United States.</p> <p>Even if the Act of June 4, 1883, had any application to the present case, the plaintiff failed to establish any undue or unjust discrimination on the part of the defendant, prohibited thereby: Northern Pacific Ry. Co. v. State of Washington, 222 U. S. 370; Hoover v. R. R. Co., 156 Pa. 220.</p> <p>— Discrimination of defendant was undue and unjust, of the character forbidden by Act of June 4, 1883, and no sufficient answer thereto was made at trial..</p> <p>The defendant had no right to call upon plaintiff to elect between two causes of action embodied in its statement of claim: Burkholder v. Beetem, 65 Pa. 496; Whitney v. Haskell, 216 Pa. 622.</p>

<p>Corporation — Assignment of stock by shareholders — Reservation of rights owned by corporation — Carriers—Discrimination.</p> <p>1. The shareholders of a corporation have not, by mere fact of being shareholders any agency for the corporation, or any authority to act for it; nor can they convey or assign its property, although all unite, unless through formal action of the corporation they have been made its agent to that end.</p> <p>2. Where an incorporated coal company has brought an action against a railroad company, for unlawful discrimination, and thereafter the three stockholders who own all the stock of the company sell the stock with a reservation to themselves of the right to continue the action against the railroad company, and to appropriate any pecuniary results therefrom to themselves, such sale and reservation does not deprive the company of the right to continue the action.</p> <p>Carriers — Railroad companies — Discrimination as to car supply — Interstate Commerce — Jurisdiction of Federal and State Courts.</p> <p>3. Where Congress prescribes a particular act in reference to interstate commerce, not in itself an offense at common law, jurisdiction with relation thereto attaches to the Federal courts.</p> <p>4. Where the act is an offense at common law, and made so as well by State statute, in such case, except as other reasons may be shown, there is concurrent jurisdiction of it in the State courts.</p> <p>5. The Interstate Commerce Act does not attempt any more than does the common law to define what particular acts shall constitute unlawful discrimination, but commits that to the Interstate Commerce Commission.</p> <p>6. When the Interstate Commerce Commission has by its orders declared any particular practice, or regulation observed by an interstate corporation as unreasonably discriminating, it is as though Congress had specially legislated with respect thereto, and such circumstance draws exclusive jurisdiction of the offense to the Federal tribunal.</p> <p>7. Except as to the thing the commission has defined and denounced as undue discrimination, the discrimination complained of may be adjudged by the State courts according to their own statute or the common law as the case may be.</p> <p>8. Where a railroad company engaged in the . transportation of coal, groups mines for purposes of service and for the equitable distribution of cars, and the Interstate Commerce Commission has made no order affecting the system) adopted in its relation to the distribution of cars engaged in interstate commerce, a State court has jurisdiction over a suit brought by a shipper against the railroad company for an alleged flagrant departure from the system resulting in an unlawful discrimination against the plaintiff, without reference to whether the cars are intended for interstate or intrastate shipments.</p> <p>Carriers — Discrimination—Supply of coal cars — Damages.</p> <p>9. Where a railroad company divides the mines along its line into two districts, and rates the several mines in each district according to their respective producing capacity with a view to determine a just distribution of cars during a period of shortage, and it appears that the company during such period" gives to one coal company operating in one of the districts an excess of ears daily during the period of shortage, the railroad company will be liable in damages to a coal company in the other district which has been deprived of its fair share of cars.</p> <p>10. Where an action against a railroad company for unlawful discrimination in the distribution of coal cars is tried by the court without a jury, and the only question considered at the trial was the distribution of the railroad company’s own cars, without any reference to private or individual cars owned by operators, the railroad company cannot for the first time on exceptions to the court’s findings of fact and conclusions of law, claim that the court erred in not taking into, account private or individual cars in determining the extent of the discrimination against the plaintiff.</p> <p>11. Even if such a question had been raised at the trial as a matter of defense, the court would have been justified in ignoring it, if it appeared that the system of distribution of cars, acquiesced in by all parties as proper, left out qf consideration private cars in plain violation of the Interstate Commerce Act, and that the railroad company now claimed to disregard its own basis of distribution, not because it was inequitable, but solely with a view oí giving a particular shipper an unlawful preference, thus seeking to mitigate the consequences of its own dérelietion by having applied the rule it had defied.</p> <p>12. Where a case against a railroad for unlawful discrimination is tried by the court without a jury, the court may include in the general damages assessed against the defendant additional damages for the delay in the settlement of the plaintiff’s claim. In such a case the court’s findings of fact are to be regarded in the same manner as the verdict of a jury.</p> <p>Carriers — Discrimination—Pleading—Cause of action.</p> <p>13. In an action against a railroad company for an unlawful discrimination in the distribution of coal cars, where the statement of claim alleges two certain discriminatory acts, the statement may be amended after the running of the statute of limitations by charging that the plaintiffs as a consequence of the alleged two discriminatory acts were prevented from shipping a larger amount of tonnage, and were therefore entitled to a larger amount of damage, than was claimed for in the original statement. Such amendment does not introduce a new cause of action.</p>

<p>Appeal, No. 201, Jan. T., 1911, by-S. W. Haverstick, from decree of O. C. Cumberland Co., dismissing exceptions to auditor’s report in Estate of Sarah A. Todd, deceased.</p> <p>Exceptions to report of C. S. Brinton, Esq., Auditor.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was in dismissing exceptions to auditor’s report.</p> <p>— The effect of a codicil duly executed is to republish the will to which it refers, whether the codicil be annexed to the will or not......and it makes the will republished to speak from the date of the codicil: Neff’s App., 48 Pa. 501; Coale v. Smith, 4 Pa. 376; DeHaven’s Est., 207 Pa. 152; Linnard’s App., 37 Leg. Int. 165; Tyson’s Est., 47 Pa. Superior Ct. 108.</p> <p>It is a cardinal canon of construction that when there is no ambiguity in the words of a will the intention must be gathered from them and no exposition contrary to the words is to be made: Hunter v. Hunter, 229 Pa. 349.</p> <p>An inspection of the note given by Mr. Haverstick in April, 1907, shows that by its terms he surrendered his right to extinguish entirely his indebtedness to the testatrix during her lifetime and such surrender constitutes a sufficient consideration for the very marked reduction in the amount of the new indebtedness: Melroy v. Kemmerer, 218 Pa. 381; Brockley v. Brockley, 122 Pa. 1; Fidelity Trust Co. v. Carson, 28 Pa. Superior Ct. 418; Guarantee Trust and Safe Deposit Co. v. Boyer, 21 Pa. D. R. 61.</p> <p>The testatrix while related to the legatee did not assume or stand in loco parentis to him, nor was he a member of her household. Under such conditions there is no presumption of ademption and the burden to prove it is on those who assert it: Sprenkle’s Est., 1 Mona. (Pa.) 402; Swoope’s App., 27 Pa. 58; Keiper’s App., 124 Pa. 193; Ritter’s Est., 10 Pa. Superior Ct. 352.</p>

<p>Wills — Legacy—Interest on legacy — Remainder.</p> <p>1. Where a testatrix bequeaths a sum of money to a trustee in trust to pay the income to a grandson for life, and after his death to pay the-principal to his surviving children when they attain the age of twenty-one years, and it appears that the grandson dies- in the lifetime of the testatrix, leaving to survive him an infant daughter to whom the testatrix does not stand in loco parentis, and who is not destitute nor in need of an allowance for maintenance, the granddaughter is not entitled to interest on the legacy during the year from the death of the testatrix.</p> <p>Taxation — Collateral inheritance tax — Legacies paid in lifetime —Decedent’s estates — Act of May 6, 1887, P. L. 79.</p> <p>2. Under the Act of May 6, 1887, P. L. 79, where a deed or transfer is intended to take effect either in possession or enjoyment after the grantor’s death, the property conveyed is subject to the collateral inheritance tax. When the right to income is retained during the life the conveyance, as to enjoyment, does not take effect until the death of the grantor.</p> <p>3. Where a testatrix makes her will bequeathing certain legacies, and thereafter pays over to the legatees the principal sum of the legacies, taking from them obligat'ions to pay her interest on the same during the term of her natural life, such legacies are subject to collateral inheritance tax upon the death of the testatrix.</p>

Appeal, No. 260, Jan. T., 1912, by plaintiff, from decree of C. P. Cumberland Co., Jan. T., 1911, No. 1? dismissing bill in equity in case óf G. Wilson Swartz v. Carlisle Borough.-' Bill in equity to enjoin the issuing of municipal bonds. Before Sadler, P. J. The case turned upon the constitutionality of the Act of June 19, 1911, P. L. Í044, the material provisions of which are quoted in the opinion of the Supreme Court. Tlie court entered a decree dismissing tlie bill.

<p>Conspiracy — Combination to deprive a person of work — Trespass.</p> <p>1. In. an action of trespass against twenty-eight men the plaintiff states a good cause of action, when he charges that the defendants entered into a conspiracy which culminated in a written demand signed by them, on the common employer of plaintiff and defendants, which demand amounted to a threat that unless the plaintiff was discharged, the defendants would embarrass the employer’s! business by quitting work in a body.</p> <p>Evidence — Rejection of evidence — Matter partly irrelevant.</p> <p>2. Where offers of evidence for the plaintiff support a good cause of action, and the offers are objected to not because any specified portions are! inadmissible, but on the ground that as a whole they were immaterial and irrelevant, and did not make out a ease for the jury, the court commits reversible error if it rejects, the offers, although they may have contained matter which was irrelevant.</p> <p>Appeals — Entry of nonsuit• — Assignment of error.</p> <p>3. An appeal does not lie from the entry of a compulsory non-suit, but only from a refusal to take the nonsuit off.</p> <p>Moschzisker, J., dissents.</p>

<p>Carriers — Common carrier — Bill of lading — Contract—Delivery to consignee without surrender of hill — Waiver—Claim for loss— Evidence — Case for fury.</p> <p>In an action by consignors against a railroad company for the value of goods delivered to the consignee without requiring the production and surrender of the bill of lading, the case is for the jury and a verdict and judgment for the plaintiffs will be sustained, where the evidence tends to show that no course of dealing existed between the plaintiffs and the defendant which could be regarded as a waiver of a provision of the bills of lading which required their production and surrender before the delivery of the goods, and that the plaintiffs did not, with knowledge of the delivery of the goods without the surrender of bills of lading therefor in many instances, consent to, approve, or ratify such a course of dealing • between the consignee of the goods and the agent of the railroad company.</p>

<p>Appeal, No. 123, Jan. T., 1912, by defendant, from decree of C. P. Warren Co., March T., 1912, No. 5, on bill in equity in case of Daniel E. Lesser v. Warren Borough.</p> <p>Bill in equity to restrain an issue of borough bonds.</p> <p>Prather, P. J., specially presiding, found the facts to be as follows:</p> <p>1. The defendant, the borough of Warren, was chartered under the Act of April 3, 1832, P. L. 259, and is now organized under and subject to¡the General Borough Act of April 3, 1851, P. L. 320.</p> <p>2. That the Warren Water Company is a corporation organized under the Corporation Act of April 29, 1874, P. L. 73, an.d from the year 1881 has been, and is now furnishing water to the citizens nf defendant borough.</p> <p>The plaintiff, Daniel E. Lesser, is a citizen and taxpayer of the borough of Warren.</p> <p>4. That under date of Feb. 8, 1903, by a contract in writing it was agreed by and between the said borough and the said water company, that the value of said water plant should be fixed by appraisers chosen as therein provided.</p> <p>5. Pursuant to said agreemnt, and for the purpose of determining the value of said water plant, to the end that it might own, possess and operate said plant, the defendant borough caused an appraisement of said water plant and system to be made, and filed the same in the Court of Common Pleas of Warren county.</p> <p>6. The valuation of said ‘water plant or system, as so determined, .is $390,000, at which price the water company proposes to sell and the defendant borough proposes to buy, issuing bonds to said water company in payment therefor, according to the provisions of the Act of May 31, 1907, P. L. 355, and its supplement, the Act of April 22, 1909, P. L. 135.</p> <p>7. The value of the taxable property in said borough at the last assessment was $4,692,545.00. The constitutional limit of indebtedness upon the consent of its qualified electors at a public election is, therefore, $328,-478; and the present indebtedness of said borough is $190,000.</p> <p>8. The bonds proposed to be issued are to be paid solely out of the receipts and revenues derived or to be derived from said water works or system, and the said borough, by an ordinance duly adopted, and approved by its burgess and council, has made full and ample provision for the creation of a sinking fund out of the said receipts and revenues for the payment of the interest and principal of said bonds as they respectively shall mature.</p> <p>9. Section 4 of said ordinance reads: “Section 4. That to provide an adequate sinking fund from the rceipts and revenues derived from said water works or system for the payment of the interest on said bonds and for their redemption there shall be set aside annually from said receipts and revenues the sum of thirty-two thousand five hundred ($32,500) dollars until and including the year 1921, and the sum of twenty-six thousand (${26,-000) dollars until and including the year 1931, and the sum of nineteen thousand five hundred ($19,500) dollars until and including the year 1941, during the existence of the bonds herein authorized and directed to be issued to provide for the payment of the interest and liquidation of the principal thereof. And the moneys arising from said receipts and revenues shall be applied at the periods stated in said bonds herein authorized and directed to be issued and to their redemption at par according to their terms and not otherwise.”</p> <p>The court entered a decree enjoining the issue of the bonds.</p> <p>Error assigned was decree awarding the injunction.</p> <p>— If the borough can issue bonds containing within themselves a strict contract of non-liability on the part of the borough, then the indebtedness of the borough will not be increased by these bonds, and the plaintiff will not be injured by their issue, and his fancied cause of complaint in this case fails: Hoeveler v. Mugele, 66 Pa. 348; Montgomery v. St. Stephen’s Church, 4 W. & S. 542; Addystone Pipe & Steel Co. v. Corry, 197 Pa. 41; Barr v. Philadelphia, 191 Pa. 438; Reuting v. Titusville, 175 Pa. 512; Wade v. Oakmont Borough, 165 Pa. 479; Erie’s App., 91 Pa. 398.</p> <p>There appears to be a wide divergence in the decisions of the different states upon various phases of the question of increase of municipal indebtedness. So far as we have access to them, the following authorities support our contention: Kelly v. Minneapolis, 30 L. R. A. 281; Quill v. Indianapolis, 7 L. R. A. 681; Swanson v. Ottumwa, 59 L. R. A. 620.</p> <p>— The Act of Assembly in question attempts to create a class of obligations outside of the meaning of Section 8 of Article IX; and by so doing would narrow and restrict the ordinary meaning of the word “debt” as used therein. Such action is a palpable attempt to evade by narrowing the construction of said section of the Constitution. This the legislature cannot do: Keller v. Scranton, 200 Pa. 130; Buchanan v. Litchfield, 102 U. S. 278; Doon Township v. Cummins, 142 U. S. 366; Dixon County v. Field, 111 U. S. 83.</p> <p>Any equity, either present or future, which the borough may acquire in the water works plant and system by the transaction, is hypothecated for the payment of the debt, and is liable to become forfeited upon default in payment: Joliet v. Alexander, 194 Ill. 457 (62 N. E. Repr. 861); Browne v. Boston, 179 Mass. 321 (60 N. E. Repr. 934; Eddy Valve Company v. Town of Crown Point, 166 Ind. 613 (76 N. E. Repr. 536); Brown v. Corry, 175 Pa. 528; Newell v. People, 7 N. Y. 9; Baltimore v. Gill, 31 Md. 375; Erie’s App., 91 Pa. 398; McKinnin v. Mertz, 225 Pa. 85.</p> <p>The case of Brown v. Corry, 175 Pa. 528, rules this case.</p>

<p>Appeals, Nos. 125 and 126, Jan. T., 1912, by H. H. Seltzer, from orders of O. C. Schuylkill Co., enjoining the removal of John H. Fertig as assistant clerk of the Orphans’ Court and directing the attestation of salary bill.</p> <p>Petition to confirm appointment of Thomas A. McCarthy as assistant clerk of the Orphans’ Court.</p> <p>From the record it appeared that on January 1, 1912, H. H. Seltzer, who had been elected to the office of the register of wills, filed a paper in the Orphans’ Court setting forth the fact that he had removed J. H. Fertig as first assistant clerk of the Orphans’ Court, and had appointed Thomas A. McCarthy in his place. The paper requested the approval of the appointment of McCarthy.</p> <p>The court made the following order:</p> <p>“And now, March 4, 1912, it is ordered and directed that H. H. Seltzer, Register of Wills, acting as clerk of the Orphans’ Court, permit John H. Fertig, the first assistant clerk of the Orphans’ Court, to perform his duties, in said office, and he is enjoined from further interfering with the said John H. Fertig, in the performance of his duties as first assistant clerk of this court, either by force or in any manner whatsoever.”</p> <p>And now, March 4, 1912, H. H. Seltzer, Register, acting as clerk of the Orphans’ Court, is ordered and directed to attest the bill of John H. Fertig for the sum of two hundred and eight dollars and thirty-three cents, the salary due him for the month of January, 1912, so that the same may be countersigned by this court in the orderly and legal manner required by the act.</p> <p>Error assigned in Appeal No. 125 was the first order above quoted.</p> <p>Error assigned in Appeal No. 126 was (4) the second order as above quoted.</p>

<p>Appeal, No. 65, Jan. T., 1912, by defendant from judgment of C. P. No. 2, Phila. Co., March T., 1906, No. 3328, on verdict for plaintiff in case of Franklin Trust Company v. PMladelpMa, Baltimore & WasMngton Railroad Company.</p> <p>Trespass to recover damages for alleged negligence in issuing bills of lading. Before Barratt, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $12,837.75. Defendant appealed. *</p> <p>Error assigned was in refusing binding instructions for defendant.</p>

<p>Appeal, No. 119, Jan. T., 1911, by plaintiff, from judgment of C. P. Union Co., March T., 1910, No. 40, on verdict for defendant by direction of the court in case of Cora Weikel v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before McCluee, P. J.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p> <p>— The testimony on the matter of the defendant’s negligence clearly raised an issue for the jury: Longeneeker v. Penna. R. R. Co., 105 Pa. 328; Quigley v. Canal Co., 142 Pa. 388; Link v. R. R. Co., 165 Pa. 75; Daubert v. R. R. Co., 199 Pa. 345; Schwarz v. R. R. Co., 218 Pa. 187.</p> <p>The presumption is the deceased did his full duty and stopped, looked and listened at the proper place before he attempted to cross the track and was killed: Lehigh Valley R. R. Co. v. Hall, 61 Pa. 361; Pa. Canal Co. v. Bentley, 66 Pa. 30; Penna. R. R. Co. v. Weber, 76 Pa. 157.</p> <p>Carroll v. Pa. R. R. Co., 12 W. N. C. 348; Myers v. R. R. Co., 150 Pa. 386; Sullivan v. R. R. Co., 175 Pa. 361; Gangawer v. P. & R. R. R. Co., 168 Pa. 265; Ellis v. Pa. R. R. Co., 216 Pa. 415; Evans v. Pennsylvania Co., 226 Pa. 370.</p>

<p>Wills — Power of sale — Equitable conversion — Sale for the payment of debts — Orphans’ Court sale — Jurisdiction—Act of February 24,1884, P- L. 70.</p> <p>1. A direction by a testator to his executors to sell his real estate and distribute the proceeds thereof amongst his widow and daughters in certain portions, with a trust for the widow for life, works a conversion of the real estate for the purpose of distribution, but it does not oust the jurisdiction of the Orphans’ Court to order a sale of the real estate for the payment of the testator’s debts.</p> <p>Sale — Orphans’ Court sale — Confirmation—Inadequacy of price —Laches.</p> <p>2. Where real estate of a decedent has been sold under an order of the Orphans’ Court, and the sale has been duly confirmed, the purchase money paid, and a deed delivered, a party in interest cannot, in the absence of fraud, after two years from the expiration of the sale, have the sale set aside because of inadequacy of price; and this is especially so where no better price is offered, nor any security tendered to insure a higher price at a re-sale.</p>

<p>Appeal, No. 335, Jan. T., 1911, by defendant, from decree of C. P. Lancaster Co., Equity Docket, No. 5, page 229, on bill in equity in case of Herbert B. Bowers and Eugene R. Russel v. John H. Myers and G. W. Dorsbeimer.</p> <p>Bill in equity for an injunction. Before Landis, P. J.</p> <p>Tbe facts are stated in tbe opinion of tbe Supreme Court.</p> <p>Error assigned was decree awarding injunction.</p> <p>— Tbe Court will take into consideration evidence of tbe acts performed by tbe parties in interpreting an agreement as to tbe intention of tbe parties thereto: Weidner v. Dauth, 21 Pa. C. C. R. 440.</p> <p>Tbe general rule with regard to ways is that tbe use must .be reasonable.</p> <p>And certainly the right to drive in an alleyway and back out sixty feet would be a most unreasonable use thereof.</p> <p>Where a right of way is granted by deed, its limits may be fixed or varied by subsequent verbal agreement, use and acquiescence: Kraut’s App., 71 Pa. 64; March-Brownback Stove Co. v. Evans, 9 Pa. Superior Ct. 597; Shroder v. Brenneman, 23 Pa. 348; Coleman’s App., 62 Pa. 252.</p> <p>A right of way is lost by cessation of the necessity for it: March-Brownback Stove Co. v. Evans, 9 Pa. Superior Ct. 597; Wissler v. Hershey, 23 Pa. 333.</p> <p>A mere permissive use of the land of another for any length of time confers no.rights of continued enjoyment: Bennett v. Biddle, 140 Pa. 396; Demuth v. Amweg, 90 Pa. 181; Chestnut Hill, &c., Turnpike Co. v. Piper, 77 Pa. 432; Carter v. Lebzelter, 45 Pa. Superior Ct. 478.</p> <p>— Even if the plaintiffs and their predecessors in title had not used the alley since 1885, they would not lose their rights simply by non-user, as the alley-right was created by a written instrument. A person, who has acquired by a grant an easement appurtenant to land, has the same right of property therein as he has in the land, and it is not necessary that he should use it to maintain his title; hence, his title is not affected by non-user: Weaver v. Getz, 16 Pa. Superior Ct. 418; Lindeman v. Lindsey, 69 Pa. 93; Erb v. Brown, 69 Pa. 216; Bombaugh v. Miller, 82 Pa. 203; Hall v. McCaughey, 51 Pa. 43; Twibill v. Lombard & So. Sts. Pass. Ry. Co., 3 Pa. Superior Ct. 487; Richmond v. Bennett, 205 Pa. 470.</p> <p>Where the owner of the servient estate relies upon the abandonment of the easement, as a defense to plaintiffs’ right, he has the burden of proving this defense: Hennessy v. Murdock, 137 N. Y. 317 (33 N. E. Repr. 330),</p>

<p>Appeals — Assignments of error — Motion for judgment n. o. Act of April 22, 1905, P. L. 286 — Act of March 24, 1877, P. L. 88. 1. An appeal from a refusal of plaintiff’s motion for judgment n. o. v. is defective which sets forth' neither the motion nor the order of court.</p> <p>2. Under the Act of April 22, 1905, P. L. 286, a party has a right to move for judgment n. o. v. upon the whole record only where he has presented a written point requesting binding instructions which has been reserved or declined. An oral motion for binding instructions is insufficient.</p> <p>Execution — Attachment execution — Defense by garnishee — Act of June 16, 1886, P. L. 755.</p> <p>3. Generally the garnishee in an attachment execution may make any defense against the plaintiff in the writ that he could have made against his original creditor. The judgment in the attachment establishes only the existence of the debt due the plaintiff by his immediate debtor. The plaintiff stands in no better position as to the thing attached than does his debtor, and any defense good against the latter will prevent a recovery against the garnishee.</p> <p>Assignment for benefit of creditors — Agreement between debtor and creditor.</p> <p>4. Where a creditor agrees in writing with his debtor that the latter shall apply the funds due the creditor to the payment of indebtedness to a third party for which the creditor was primarily liable, and the debtor secondarily liable, such an agreement cannot be construed as an assignment by the creditor for the benefit of his creditors.</p> <p>Evidence — Decree of Orphans’ Court.</p> <p>5. A decree of the Orphans’ Court awarding to a creditor his claim against the decedent’s estate is prima facie evidence of the correctness of the claim in other proceedings.</p>

<p>Appeals — Paper-boobcs—Abstract of proceedings — Extraneous matter — Buies of court — Statement of question involved.</p> <p>1. Rule 29 of tbe Supreme Court, which provides for an “abstract of proceedings showing the issue and how it was made,” is violated where the abstract sets forth extraneous matter.</p> <p>2. Rule 34, providing for “statement of question involved,” is violated where the statement sets forth four lengthy paragraphs covering over a page of closely printed matter.</p> <p>Negligence — Evidence—Testimony ' tabeen on former trial— Gredibility of witness.</p> <p>3. Where at the first trial of a negligence case, two physicians testify that plaintiff had suffered a fracture of a rib, and upon the second trial neither of the physicians are called, and plaintiff offers no proof that her rib had been fractured, the testimony of the two physicians at the first trial is not admissible on behalf of the defendant for the purpose of impeaching the credibility of the plaintiff.</p> <p>Evidence — Becor.d of criminal suit in civil action — Conspiracy —Negligence.</p> <p>4. Judgments in criminal cases where the State is prosecutor are generally held inadmissible to establish the facts of a civil case, and vice versa.</p> <p>5. On the second trial of a negligence case brought by a husband and wife for injuries to the wife, the record of the Court of Quarter Sessions is inadmissible to establish the alleged fact that between the two trials the husband and another had been convicted of conspiracy to fabricate evidence in the case.</p> <p>Negligence — Evidence—Charge of court.</p> <p>6. In an action by a woman against a street railway company to recover damages for personal injuries, the trial judge cannot be convicted of error in suggesting to the jury that the failure of plaintiff to complain of her injury to the conductor might have been due to the suffering she was undergoing, although she had given no such explanation in her testimony, if it appears that the plaintiff did testify that she could not remember very much at the time, that another passenger took her purse and paid her fare, that she was assisted home, and that when she arrived there she was suffering pain over her whole body.</p> <p>■ Negligence — Action by husband, and wife — Absence of husband at trial.</p> <p>7. In an action brought by a husband and wife for injuries to the wife, it is not error for the trial judge to instruct the jury that they might find a verdict for the husband, although he was not present at the trial, nor called as a witness. The absence of the husband is a fact from which an unfavorable inference could be drawn against him if not explained; but this inference is one for the jury to draw.</p>

Appeal, No. 1, May T., 1913, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket No. 494, dismissing bill in equity in case of George E. Etter v. Robert McAfee, Secretary of the Commonwealth of Pennsylvania, et al. Bill in equity for an injunction. The opinion of the Supreme Court states the case.

Appeals, Nos. 7, 8, 9, 10, 11, 12 and 13, May T., 1913, from orders of O. P. Dauphin Co., Jan. T., 1913, Nos. 9, 85, 120, 121, 156, 172 and 173, in Proceedings for Nomination Papers of Washington Party. Objections to nomination papers.

<p>Election law — Nomination papers — Regularity of papers.</p> <p>Where there are four candidates of a party for a district only entitled to three representatives, and the nomination papers of three of the candidates have priority over the fourth in point of filing and are regular in form, showing upon the face of the papers that the requirements of the law have been met, the burden is on the fourth candidate to establish the invalidity of the papers of the other candidates, and if he fails to do so his papers will not be certified.</p>

<p>Husband and wife — Alienation of husband’s affection — Suit against husband’s father — Burden of proof — Evidence.</p> <p>1. In an action by a wife against her husband’s father to recover' damages for the alienation of her husband’s affections, the measure of proof required to sustain the claim against the defendant, is greater than it would be against a mere intermeddling stranger, inasmuch as a father has the right to counsel and advise his son in good faith as to the position in which the son has placed himself by an unfortunate and unhappy marriage; but if there is evidence sufficient to sustain a verdict for plaintiff, the case must go to the jury.</p> <p>Practice, O. P. — Trial—Improper remarks of counsel — Continuance — Exception.</p> <p>'2. A mere objection to alleged improper remarks of counsel, and an exception noted is not sufficient to sustain an assignment of error complaining of such remarks. The assignment must show a request for the withdrawal of a juror and a continuance of the case, a refusal of such request, and an exception granted by the trial judge.</p> <p>Evidence — Proof of intention — Declarations—Hearsay—Alienation of husband’s affections.</p> <p>3. Whop the court determines in any case that a man’s state of .mind,'or the reason why he did a certain act, is a relevant principal fact to be ascertained, what he piay have said concerning it is usually the best and only evidence that can be obtained on the subject; but the proofs must always be restricted to declarations indicating the state of mind at the time of their utterance.</p> <p>4. When evidence of this character Í3 produced sufficient to show a then present intention, or a state of mind, it may be assumed to have continued and formed the motive which controlled the doing of a subsequent act following closely thereafter, if under all the surrounding circumstances one would, naturally associate the two together, and it is for the jury to draw the conclusion.</p> <p>5. In an action by a wife against her husband’s father to recover damages for the alienation of her husband’s affections resulting in the husband’s desertion of his wife, the defendant may show by a witness that eight or ten days before the husband’s departure the witness had heard him accuse his wife of infidelity, and the latter’s confession that the child she was then carrying was not the offspring of her husband, and that only the day before the husband left he had said to the witness that he was about to do so because he was not the father of the child.</p> <p>6. Such testimony is competent evidence of a relevant fact under the established rules which deal with declarations indicating intention or state of mind.</p> <p>7. If, however, such evidence is included in the same offer with other irrelevant and inadmissible evidence, the judge may reject the whole offer, inasmuch as he is not bound to separate the good from the bad.</p> <p>Husband and wife — Alienation of husband’s affections — Evidence.</p> <p>8. In an action by a wife against her husband’s father to recover damages for alleged alienation-of her husband’s affections resulting in his deserting her, it is error to permit the plaintiff to prove efforts made by her and expenses incurred to support her child after the alleged desertion; and it is also error to permit the defendant to be cross-examined concerning an authority given to him by his son to collect the latter’s wages as a member of the navy in which he enlisted after he left his wife, and as to the amounts the defendant had received from such wages.</p> <p>9. In an action to recover damage for the alienation, of a husband’s affection, where a witness for. the defendant swears that he knew the plaintiff by sight and identifies her in the court room as the woman he had seen the defendant’s son talking to on a certain occasion, it is not reversible error to refuse to permit the witness to testify that the son had said to him that the woman-with.whom the witness had heard him talking on the occasion referred to, was his wife.</p>

<p>Appeal, No. 301, Jan. T., 1912, by defendant, from judgment of O. & T, Fayette Co., June T., 1912, No. 12, on vérdiet of guilty of murder of the first degree in case of Commonwealth v. John Harris.</p> <p>Indictment for murder. Before Umbel, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict of guilty of murder of the first degree on which judgment of sentence was passed.</p> <p>Errors assigned were various instructions.</p>

<p>Appeal, No. 30, Oct. T., 1912, by plaintiffs, from judgment of C. P. Cambria Co., March T., 1909, No. 278, for defendant non obstante veredicto in case of George W. Goughnour, et al., v. Eugene Zimmerman, et al. Before Fell, C. J., Brown, Mestrezat, Potter, Elkin and Moschzisker, JJ.</p> <p>Ejectment for land in the Seventh Ward of the City of Johnstown. Before O’Connor, P. J.</p> <p>At the trial it appeared that Susan Horner died on February 19, 1881, seized of a tract of land which by will she devised to her three illegitimate children, and the issue of a deceased illegitimate child. The land was partitioned, and the tract in dispute was allotted to one of the illegitimate children, Mary Zimmerman. Mary Zimmerman died on September 2, 1882, intestate, without issue, but leaving to survive her a husband, Charles Zimmerman. Zimmerman died on December 4, 1899, leaving a will by which he bequeathed the land in question to his son and daughter, the defendants. At the trial the jury rendered a verdict for plaintiffs, the illegitimate brothers and sisters of the decedent. Subsequently the court entered judgment for defendants non obstante veredicto.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p> <p>— The argument that plaintiffs could not take as collaterals because the mother from whom the estate was derived died before Mary Zimmerman did, is unsound. If such was the rule of law, there could be no such principle as taking by representation under the Act of 1855, and hence no collateral heirs: Ringler’s Estate, 1 Woodward 328.</p> <p>At common law a devisee who takes by the will precisely the estate that would have been cast upon him by descent is in by descent and not by purchase: Kinney v. Glasgow, 53 Pa. 141.</p> <p>— All the decisions expressly hold that the Act of 1855 did not legitimate illegitimates: Grubb’s Appeal, 58 Pa. 55; Steckel’s Appeal, 64 Pa. 493; Woltemate’s Appeal, 86 Pa. 219; Neil’s Appeal, 92 Pa. 193; Umstead’s Estate, 31 Pa. C. C. R. 209; Kennedy’s Estate, 9 Pa. C. C. R. 230; Rees’s Estate, 166 Pa. 498.</p> <p>The title to the locus in quo vested absolutely in Charles Zimmerman, the husband of Mary. Zimmerman, upon her death in 1882, under the intestate laws then in force, and the Act of June 5, 1883, P. L. 88, has no application: Norman v. Heist, 5 W. & S. 171; Brown v. Hummel, 6 Pa. 86; Palairet’s Appeal, 67 Pa. 479; Galbraith v. Com., 14 Pa. 258; Com. v. Warwick, 172 Pa. 140.</p>

<p>Appeal, No. 203, Oct. T., 1912, by defendants, from decree of C. P. Somerset Co., Equity Docket, 1912, No. 6, on bill in equity in case of D. B. Zimmerman, et al., v. Pierce Miller, et al.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Supreme Court states tbe case.</p> <p>Error assigned was decree awarding injunction to restrain tbe defendants from entering into a contract with Auman and Granger for the erection of the school build ing in controversy.</p> <p>— The defendants are a board of school directors, and as such, are invested with discretionary and deliberative powers, and in rejecting the bid of Mr. Johnson and deciding him not to be a competent and responsible person, they exercised a discretion vested in them by law, which a Court of Equity cannot supervise or control, in the absence of fraud, collusion or bad faith: Roth v. Marshall, 158 Pa. 272; Commonwealth v. Mitchell, 82 Pa. 343; Findley v. Pittsburgh, 82 Pa. 351; Douglass v. Com., 108 Pa. 559; Am. Pavement Co. v. Wagner, 139 Pa. 623; Interstate Vitrified Brick & Paving Co. v. Phila., 164 Pa. 477; Reuting v. Titusville, 175 Pa. 512.</p>