Volume 238 — Pennsylvania State Reports

<p>Negligence — Railroads—Grade crossings — “Stop, loolc and lisien” —Case for jury.</p> <p>1. In an action against a railroad company to recover damages for personal injuries sustained at a grade crossing, the case is for the jury where the evidence for the plaintiff, although contradicted, tended to show that the plaintiff and his driver approached in an empty hay wagon a five track grade crossing of the defendant company, that they stopped, looked and listened; that the view to the left was obstructed by cars and locomotives standing on the first two tracks; that an employee of the defendant signaled them to cross; that they then drove slowly over the crossing without hearing or seeing anything and were caught by an engine operated on the third track, and approaching from the left.</p> <p>Negligence — Damages—Permanent injuries — .Erroneous instructions.</p> <p>2. In an action to recover damages for personal injuries it is clear error for the court to charge that the plaintiff is entitled to recover, if entitled to recover at all, “for the amount which he would likely earn during the remainder of his life.” In such a case the plaintiff is entitled to recover not what he is likely to earn during the remainder of his life, but for the loss of earning power during that period, and this depends upon whether he is permanently disabled, or only partially so.</p> <p>3. If a person is totally and permanently disabled he is entitled to recover his damages for the loss of earning power during the remainder of his life, and in determining this the jury must consider the injured person’s state of health, habits of life, character of employment, the increasing disabilities of age, and many other things of like character which in the course of nature produce the earning power.</p> <p>4. When the loss of future earning power is anticipated in a verdict, it should be the exact equivalent or present worth of the injured person’s loss of earnings during the several years of his life expectancy.</p> <p>5. If there is only a partial loss of earning power, the jury must determine what that partial loss is under the evidence, the number of years it is likely to continue, and then find the present worth of the amount so ascertained.</p> <p>6. It is most important in the trial of personal injury cases that the jury should be carefully instructed as to the true measure of damages that may be considered in arriving at a proper verdict,, and the court should of its own motion give the proper instructions.</p>

<p>Appeal, No. 139, Oct. T., 1912, by plaintiffs, from judgment of C. P. Cambria Co., Dec. T., 1909, No. 499, on verdict for Title Trust and Guarantee Company of Johnstown, in case of Frank Lowry and E. M. Mack, trading and doing business under the firm and co-partnership name of Lowry and Mack v. Charles Roy and The Title, Trust and Guarantee Company of Johnstown, Pa.</p> <p>Assumpsit on a bond. Before O’Connor, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court charged in part as follows:</p> <p>“If you find that a contemporaneous parol agreement was entered into, and that relying solely upon that and upon that alone the trust company executed this bond, because of the fact that there was a material change, whether it injured the trust company or not, in the line of this work, then you would find for the plaintiff for the amount of the claim as against Charles Roy. If you do not find from the evidence in this case that it measures up to the standard which the law requires, to make out such a contemporaneous parol agreement as would vary the terms of the written agreement in this case, considering all the evidence, considering all the statements of Mr. Mack, Mr. Rose and Mr. Rhue and all other testimony on that point, then you would find for the plaintiffs in this case in the amount of the claim.”</p> <p>Plaintiffs presented this point:</p> <p>1. If you find from the evidence that the written agreement of August 12, 1908, executed by Lowry & Mack and Charles Roy, embraced and contained the entire contract between said Lowry and Mack of the one part and Charles Roy of the other part, relative to the water pipe line, then we instruct you that, by the terms of that contract, the engineer of the Windber Water and Power Company was authorized to make changes in the location of the pipe line from that shown on the plans either before or after the construction had begun, and the contractors, namely, Lowry & Mack, and Charles Roy, their sub-contractor, were bound to complete the work according to the contract and specifications and according to the direction of said engineer; and the defendants, namely, Charles Roy and the Title, Trust and Guarantee Company, cannot be relieved by reason of changes made in the location of the line by authority of said engineer. Answer: We affirm the point and call to your minds at the same time what we have said in regard to the agreement, which, if you find affirmatively in favor of the defendant, would release them. (2)</p> <p>Verdict and judgment for the defendant, the Title, Trust and Guarantee Company of Johnstown. Plaintiffs appealed.</p> <p>Errors assigned, among others, were (1, 2) above instructions, quoting them.</p> <p>— The plaintiffs were entitled to binding instructions not only against Roy, but also against the Title, Trust and Guarantee Company, the surety on the bond, and to a direction for judgment against both defendants non obstante veredicto for the following reasons:</p> <p>(1) The evidence of the parol agreement was clearly insufficient to vary the written contract, as it was far from being clear, precise and indubitable; and furthermore, it was intentionally omitted from the written contract.</p> <p>(2) The change in the location of the line was made by the engineer in charge by virtue of authority expressly conferred by the written contracts between the parties.</p> <p>(3) The change in the line did not injure the defendants, as it admittedly only shortened it and did not increase the per foot cost of the work, and therefore did not increase the hazard of the surety: Irvin v. Irvin, 169 Pa. 529; Kennedy v. Plank Road Co., 25 Pa. 224; Thomas v. Loose, 114 Pa. 35; Cozens v. Stevenson, 5 S. & R. 421; Wodock v. Robinson, 148 Pa. 503; Union Storage Co. v. Speck, 194 Pa. 126; Krueger v. Nichola, 205 Pa. 38; Faux v. Fitter, 232 Pa. 33.</p> <p>— Parol evidence is admissible to show a verbal contemporaneous agreement which induced the execution of a written obligation, though it may vary or change the terms of the written contract: Croyle v. Cambria Land & Imp. Co., 233 Pa. 310; Cullmans v. Lindsay, 114 Pa. 166; Sidney School Furniture Co. v. School Dist., 130 Pa. 76; Lippincott v. Whitman, 83 Pa. 244; Fidelity & Casualty Co. v. Harder, 212 Pa. 96.</p>

<p>Appeal, No. 202, Oct. T., 1911, by plaintiff, from judgment of O. P. Jefferson Co., Nov. T., 1910, No. 267, on verdict for defendant in case of Eeuben Cohen v. E. W. Smith.</p> <p>Assumpsit for breach of contract. Before Baldridge, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were various instructions.</p> <p>It was error to admit evidence as to the understanding of the parties: Fry v. Nat. Glass Co., 207 Pa. 505; Fisher v. Deibert, 54 Pa. 460.</p> <p>The construction of an unambiguous contract is for the court: Keefer v. School District, 203 Pa. 334; Hill-man v. Joseph, 9 Pa. Superior Ct. 1; Carson v. Hosiery Co., 15 Pa. Superior Ct. 476.</p> <p>— So long as there are terms or conditions to he arranged, fixed or determined by parties, although a part of the terms be put in writing, and their assents are withheld from a final contract until it is put in writing and signed by them, there is no contract between them: Smith v. Loag, 132 Pa. 301; Zoebisch v. Rauch, 133 Pa. 532; Leskie v. Haseltine, 155 Pa. 98; Sparks v. Pitts: burgh Co., 159 Pa. 295; Clark v. Pittsburgh Natural Gas Co., 184 Pa. 188; James v. Penn Tanning Co., 221 Pa. 634; Way v. Fraser, 230 Pa. 49.</p>

<p>Appeal, No. 38, Oct. T., 1912, by plaintiff, from decree of C. P. Jefferson Co., Aug. T., 1910, No. 3, dismissing bill in equity in case of Punxsutawney Borough, P. O. Freas, W. M. Fairman, et al., y. T. W. Phillips Gas and Oil Co.</p> <p>Bill in equity for an injunction. Before Hinckley, P. J., specially presiding.</p> <p>The court below found the facts to be as follows:</p> <p>FINDINGS OF FACT.</p> <p>1. The Mahoning Gas and Heat Company was a corporation formed under the Act of April 29, 1874, and its supplements, “For the purpose of manufacturing gas and supplying light and heat to the public at the Borough of. Punxsutawney, and to persons, partnerships and associations, residing therein and adjacent thereto, as may desire the same.” Application for letters patent were approved March 5, 1883. Letters patent were issued by the Commonwealth March 5, 1883.</p> <p>2. The capital stock of the company was by due proceedings, and consent of its stockholders, increased from five thousand to one hundred thousand dollars certificate of such increase having been filed in the office of the Secretary of the Commonwealth on October 15,1884.</p> <p>3. Under color of its charter or letters patent the Ma-honing Gas and Heat Company had, prior to the passage of the Natural Gas Company Act of May 29,1885, P. L. 29, in the year 1884, entered upon the streets of the Boroughs of Punxsutawney and Clayville, and had been for some time and at the date of the approval of said Act of Assembly on May 29, 1885, actually engaged in the sole business of transporting and dealing in natural gas and supplying the same to consumers, and persons within said boroughs.</p> <p>4. The Mahoning Gas and Heat Company, pursuant to the provisions of the fourteenth section of the said A ct of Assembly of May 29,1885, P. L. 29, by instrument in writing duly executed under its corporate powers, filed in the office of the Secretary of the Commonwealth, May 15, 1886, accepted the provisions of said act, and surrendered its charter, and upon said date new letters patent were issued by the Commonwealth to the Mahoning Gas and Heat Company under said Act of Assembly.</p> <p>The acceptance sets forth inter alia that the place or places to which gas is to be supplied are the boroughs of Punxsutawney and Clayville and Young Township, and persons and partnerships adjacent thereto.</p> <p>5. The said company, the Mahoning Gas and Heat Company, continued in its said business of supplying natural gas to the public in said Boroughs of Punxsutawney and Clayville, down to date of its merger with the T. W. Phillips Oil and Gas Company and the Citizens’ Fuel Company, in the latter part of 1905, under merger agreement filed in the office of the Secretary of the Commonwealth, January 11, 1906, and during said period was the only company so supplying the public and dealing in natural gas in said boroughs.</p> <p>6. There was no provision contained in the charter of the Mahoning Gas and Heat Company as to price to be charged for natural gas, and no restriction had ever been imposed upon the company and it had never made any agreement as to price to be charged for gas. Prior to May, 1905, the prices charged by the company for gas furnished, and for which bills were rendered monthly, were thirty cents per thousand cubic feet subject to a discount of ten cents per thousand cubic feet if paid on or before the tenth day of the month in which bill was rendered, for gas consumed during the previous month. And after May, 1905, down to the date of merger the price was twenty-two cents per thousand cubic feet, the net price being twenty cents per thousand cubic feet if paid on or before the tenth day of the month.</p> <p>7. Punxsutawney Borough, by ordinance approved May 24,1904, granted A. L. Cole the right to enter upon its streets, lay down and maintain pipes for transportation and furnishing of natural gas to consumers in said borough. Section 3 of the ordinance provides that said A. L. Cole or his assigns shall furnish the borough gas free of charge for heating and lighting the borough building, including council chamber and lock-up, and for thirty lamps.</p> <p>Section 4 is as follows: .</p> <p>“Said A. L. Cole or his assigns hereby covenants and agrees for himself and his assigns to furnish to the consumers of natural gas of the Borough of Punxsutawney natural gas at maximum price not to exceed twenty cents (20c) per thousand cubic feet net during the time the privileges of this ordinance are exercised by the said A. L. Cole or his assigns.”</p> <p>8. The Borough of Clayville enacted a similar ordinance in practically same language upon June 9,1904.</p> <p>9. Section 8 of the ordinances provide that they shall only become operative upon said A. L. Cole or his assigns filing an acceptance of all the terms and conditions of the ordinance and other ordinances within ten days, and the said A. L. Cole filed acceptances to such ordinance as follows:</p> <p>“I, A. L. Cole, for myself or assigns, hereby accept the above and foregoing ordinance in all its terms and conditions and all other ordinances of said borough affected by the franchises granted by said ordinance.”</p> <p>10. Section 6 of the ordinances provide that the franchise is granted with the intention that the same shall be assigned to a proposed corporation to be formed to be known as the Citizens’ Fuel Company.</p> <p>11. The Citizens’ Fuel Company of Punxsutawney, Pa., was incorporated June 24, 1904, under the provisions of the Act of Assembly of May 29,1885, P. L. 29, for the purpose of supplying natural gas, etc., to be mined for in Jefferson, Clarion, Armstrong and Indiana Counties and supplied to consumers in the Boroughs of Punxsutawney, Big Run, Lindsey and the Townships of Beaver and other townships in Jefferson County, Pa., the articles of association therefor being recorded in the recorder’s office of Jefferson County, Pa.</p> <p>12. September 3, 1904, A. L. Cole, by writing as follows, conveyed'his franchises to the Citizens’ Fuel Company : For and in consideration of. thé sum of one dollar I hereby sell, assign, transfer and set over to the Citizens’ Fuel Company of Punxsutawney, Pa., all rights and privileges granted and conveyed to me by virtue of the ordinance, etc.</p> <p>13. The Citizens’ Fuel Company when organized had certain gas wells in Beaver Township, Jefferson County, some fourteen miles from Punxsutawney, and in July, 1904, commenced laying a gas line to Punxsutawney and also some lines in the Borough of Punxsutawney, and also took contracts from a number of people in Punxsutawney to whom it proposed to furnish gas.</p> <p>Negotiations were shortly commenced with the stockholders of the Mahoning Gas and Heat Company and before the gas line of the Citizens’ Fuel Company was completed to Punxsutawney the capital stock of the Ma-honing Company was purchased and transferred, five shares to five individual stockholders of the Citizens’ Company and the balance, nine hundred and ninety-five shares to another stockholder in trust for the stockholders of the Citizens’ Company. The purchase was agreed upon in August and the stock actually transferred September 27, 1904.</p> <p>The purchase money for this stock was furnished and paid by the Citizens’ Fuel Company.</p> <p>14. At the time of this purchase of the stock of the Mahoning Gas Company, the Citizens’ Gas Company had not completed its gas line nor brought any gas to Punxsutawney, when subsequently it completed its line to the borough it connected its lines direct to the lines of the Mahoning Gas Company, and made no other connections, and the Mahoning Gas Company continued to transact all the business of furnishing gas to consumers as before, in its own name, making all contracts with consumers, increasing the number from six hundred to say eleven hundred, by May, 1905.</p> <p>All moneys paid by consumers was paid to and collected by the Mahoning Gas Company and deposited to the credit of the company by its officers in the bank, and after paying its own bills for operating, it paid over the balance to the Citizens’ Fuel Company up to May, 1905, and then to the T. W. Phillips Oil and Gas Company, which acquired the stock of the Citizens’ Fuel Company about that time.</p> <p>15. The Citizens’ Fuel Company never sold any gas to consumers in Punxsutawney or Clayville Boroughs, and never laid any service lines to consumers and never did any business in said boroughs beyond supplying gas to the Mahoning Gas Company.</p> <p>It laid some lines in Punxsutawney but these were used by the Mahoning Company, or were to connect the lines of the two companies.</p> <p>All the gas produced by the Citizens’ Fuel Company, during the existence of the company, was delivered to the Mahoning Company and the latter company marketed the same, and was the only company selling and marketing and supplying natural gas to consumers in the Borough of Punxsutawney prior to the formation of the Consolidated Gas Company, defendant, in January, 1906.</p> <p>The gas produced by both companies was run into the lines of the Mahoning Company.</p> <p>16. The T. W. Phillips Oil and Gas Company purchased the stock of the said Citizens’ Fuel Company and Mahoning Gas and Heat Company, in, April, 1905; after this the business of furnishing natural gas to consumers in the borough of Punxsutawney was continued by the Mahoning Company exclusively in its own name, and with contracts taken solely by it, and by no other company, down to November 29, 1906; the number of consumers in April, 1905, being ten hundred and twenty-two. On November 29, 1905, a merger agreement was drawn between the three companies and filed in the office of the Secretary of the Commonwealth, January 11, 1906, and letters patent issued January 29, 1906, to the new Consolidated Company, T. W. Phillips Gas and Oil Company, and the latter company, being the defendant herein, has since carried on said natural gas business, using the gas supply formerly owned by the Mahoning and Citizens’ Company, but principally the gas obtained by other sources.</p> <p>17. The rate of twenty-five cents net per thousand cubic feet proposed to be charged by defendant, for natural gas supplied by it to consumers in Punxsutawney Borough, is fair and reasonable considering the facts as shown by the testimony in this case.</p> <p>18. Up to the summer of 1910, the defendant company continued to charge and render bills for gas at the rate of twenty-two cents per thousand cubic feet with a discount of two cents per thousand if paid on or before the tenth of the month, and in the summer of 1910 advanced the price to twenty-seven cents per thousand cubic feet with a discount of two cents per thousand cubic feet if paid on or before the tenth of the month.</p> <p>The court entered a decree dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p> <p>— A consolidated corporation, one formed by the merger of two or more corporations, is a creature of statutory law, and the statute or statutes authorizing such combinations or amalgamations must necessarily be strictly construed: Baltimore & Susquehanna R. R. Co. v. Musselman, 2 Grant (Pa.) 348.</p> <p>The courts of Pennsylvania have heretofore zealously guarded the rights of municipalities in cases of this character and have not permitted individuals or corporations to avoid the obligations of contracts with the public by subterfuge: Freeport Boro. School District v. Enterprise Natural Gas Company, 18 Pa. Superior Ct. 73; Cochranton Borough v. Cochranton Telephone Company, 41 Pa. Superior Ct. 146; Sandy Lake Borough v. Sandy Lake & Stoneboro Gas Company, 16 Pa. Superior Ct. 234; Allegheny v. People’s Natural Gas & Pipeage Company, 172 Pa. 632; New Cumberland Borough v. Riverton Consolidated Water Company and Mountain Water Company, 232 Pa. 525; White Haven Borough v. White Haven Water Company, 209 Pa. 166.</p> <p>— The fact that the Citizens’ Company purchased the stock of the Mahoning Company did not affect the standing of the Mahoning Company. Its organization was still kept up down to the time of the consolidation. It did business and had its own board of directors and officers, and they were the company; the Citizens’ Company were but stockholders: Pullman’s Palace Car Co. v. Missouri Pacific Ry. Co., 115 U. S. 587 (6 Sup. Ct. Repr. 194).</p> <p>Where a corporation formed by the consolidation is given the rights and privileges of each of its constituents, such privileges apply, in the hands of the consolidated company, to such portions only of its property as they applied when held by the constituent corporations: Phila. & Wilmington R. R. Co. v. Maryland, 51 U. S. 376; Minot v. R. R. Co., 85 U. S. 206; Chesapeake & Ohio R. R. Co. v. Virginia, 94 U. S. 718; Pullman’s Palace Car Co. v. Missouri Pacific Ry. Co., 115 U. S. 587 (6 Sup. Ct. Repr. 194); Gould v. Langdon,'43 Pa. 365; Brown v. Susquehanna Boom Co., 109 Pa. 57.</p>

<p>Public officers — Tax collectors — Report of auditors — Tax duplicates — Exoneration.</p> <p>1. Where the reports of borough auditors fix a liability on the borough tax collector for uncollected tax duplicates, the borough council may, for proper reasons, exonerate the collector from liability several years after his accounts have been audited. The effect of such exonerations upon the liability of the collector is the same as if the parties taxed had paid into the borough treasury the taxes assessed against them.</p> <p>2. The power of the borough authorities to exonerate a tax collector from liability on tax duplicates existed prior to the Act of J une 25, 1885, P. L. 187, and is recognized by the 10th Section of that act which provides that “exonerations may be made by the authorities and in the same manner as heretofore.”</p> <p>3. A final settlement by borough auditors showing a liability of the borough to a tax collector in the settlement of his accounts, is conclusive against the borough if the borough fails to appeal within the proper time from the filing of the report of the auditors.</p>

<p>Appeal, No. 211, Oct. T., 1912, by plaintiff, from decree of C. P. Mercer Co., Oct. T., 1911, No. 3, dismissing bill in equity in case of L. M. Jaxtheimer v. Sharpsville Borough, Karl Smith, Burgess, F. W. King, et ah, Councilmen, and William McIntyre & Sons.</p> <p>Bill in equity for an injunction. Before Williams, P. J.</p> <p>The court below, after stating the facts as summarized in the opinion of the Supreme Court, discussed the questions involved as follows:</p> <p>The learned counsel contends that the contract between said borough and William McIntyre & Sons is illegal for the reasons set forth in the fourth and fifth paragraphs of the plaintiff’s bill, and these reasons may well be considered in the order stated by the learned counsel.</p> <p>1. The first reason is stated in the fourth paragraph of the bill, as follows:</p> <p>“The same day that said ordinance was passed, bids were received and a contract awarded to said William McIntyre & Sons for the paving of that portion of Mercer avenue hereinbefore referred to.”</p> <p>The testimony shows that under the rules adopted by the council of said borough an ordinance must pass three readings before it is presented to the burgess for his approval, and, as stated in our fifth finding of fact, the ordinance here in question was introduced and passed by the council on first reading on June 20, 1911. It appears from the papers before us, although not shown by the testimony, that said ordinance was passed on second reading on July 18, 1911, and, as shown by the testimony and stated in our ninth finding of fact, was passed on its third reading on August 1, 1911. [On August 15, 1911, the borough engineer and paving committee presented to council for its approval full and complete specifications for paving said Mercer avenue with Tarvia, which, on motion duly passed, were approved by council] (4) and the secretary was directed to advertise for bids for paving said street in accordance with said specifications, said bids to be presented not later than six o’clock P. M. on .September 5,1911.</p> <p>On the same date that said specifications were approved and the secretary directed to advertise for bids as above stated, the burgess of said borough, as stated in our thirteenth finding of fact, returned said ordinance to the council accompanied by his veto thereof. Said veto was spread .at large upon the minutes and said ordinance was then laid over until the next regular meeting of council, to be held on September 5, 1911, as required by said Act of May 12th, 1911. At its next regular meeting, held on September 5, 1911, all of the members of 'council being present, said council proceeded to a reconsideration of said ordinance and after such consideration it was passed by the unanimous vote of all the members elected to said council; the roll being called and the name and affirmative vote of each of the members of the council entered on the minutes.</p> <p>On the same date, after the passage of said ordinance over the veto of the burgess, the secretary, by direction of the council, proceeded to open the bids received for said paving in response to the notice to contractors published on August 22, 1911, as directed by council at its meeting held on August 15, 1911. As stated in our seventeenth finding of fact, the bid of said William McIntyre & Sons being the lower of the two bids received for the paving of said street, it was accepted, subject to certain conditions embodied in the motion or resolution of acceptance, and which, as shown by the minutes of the proceedings, are as follows: “It was unanimously resolved that the bid of William McIntyre & Sons be accepted, subject to the entering into of a contract by them with the Borough of Sharpsville, as provided for in the printed specifications, and the furnishing of bonds by them, as also required by said specifications.”</p> <p>The contention of the learned counsel for the plaintiff is that said bid and the acceptance thereof by the council constituted a contract between said borough and the firm of William McIntyre & Sons for the paving of said Mercer avenue; and that as said ordinance had not been published and posted subsequent to its passage over the veto of the burgess, in accordance with the provisions of Section 3 of the Act of April 3, 1851, said contract is illegal. With this contention we are unable to agree, and to our mind it is wholly based upon the fundamental error of viewing the qualified and conditional acceptance of said bid as a contract. It seems to us that the very terms of the acceptance itself preclude the theory that said bid and its acceptance was to constitute a contract, and clearly evidence the fact that a contract was to be later entered into. That neither the borough authorities nor the firm of William McIntyre & Sons, whose bid was thus accepted, considered said bid and acceptance as a contract is evidenced by the fact that the execution of the formal contract for said paving was deferred until more than ten days had elapsed after said ordinance had been published and posted subsequent to its final passage over the veto of the burgess, as is required by the Act of April 3,1851.</p> <p>In 20 Am. & Eng. Ency. of Law, (2nd Ed.), 1170, it is said in reference to municipal contracts: “Though a bid made in response to an advertisement may be the lowest bid therefor, and in all respects regular and valid no contract arises until the acceptance thereof by the city authorities. But where a bid has been accepted and the contract awarded, a binding contract is created, for the breach of which the city may.be liable in damages, although, it has been held, it is not reduced to writing and signed. But a vote accepting a bid is not a contract, where a provision is distinctly made for the future execution of a formal contract.”</p> <p>The last paragraph of the language quoted expressly covers the facts of the case at bar, is directly in point and is decisive against the contention of the learned counsel for the plaintiff. A number of cases are cited in support of the statement quoted, among them being those of Edge Moor Bridge Works v. Bristol County, 170 Mass. 528 (49 N. E. Bepr. 918); Jersey City Water Commissioners v. Brown, 32 N. J. L. 504; Dunham v. Boston, 94 Mass. 375, and People’s Railroad Co. v. Memphis Railroad Co., 77 U. S. 38. We have access only to the two cases last cited, both of which seem to support the language quoted.</p> <p>Assuming that Section 3 of the Act of April 3, 1851, required the publishing and posting of said ordinance subsequent to its passage over the veto of the burgess it is clear that said ordinance was inoperative until the provisions of said section had been complied with. Hence the council was without power to make a valid contract until said ordinance had been published and posted for at least ten days after its final passage With this provision of said Act of Assembly in mind the borough authorities deferred the execution of the formal contract for said paving until said provision had been complied with.</p> <p>It is argued by the learned counsel, however, that the validity of said contract is to be determined as of the date when said ordinance was passed over the veto of the burgess and the bid for said paving was accepted by the council; and that nothing done thereafter could validate the formal contract entered into between said borough and the firm of William McIntyre & Sons on September 26, 1911. As we view this case said argument is unsound and is not supported by either reason or authority. Suppose a borough council should determine to pave a street under the provisions of the Act of 1911, and, in order to expedite the work, should have specifications prepared and advertise for bids for said paving while the ordinance providing for the same was pending in council; and then, when said ordinance had been finally passed and approved, accept the lowest bid received for said work, subject to the making of a formal contract at a later date; and then, in the meantime, between the acceptance of said bid and the execution of the formal contract, have said ordinance published and posted as required by the Act of 1851. What would be irregular or illegal in such proceedings? We are unable to see how the preparation of specifications, the advertising for bids and an acceptance of one of the bids received prior to the publication and posting of the ordinance providing for the work can affect the validity of a formal contract entered into after said ordinance had been published and posted. After the passage of the ordinance over the veto of the burgess in the case at bar, and after the same had been properly published and posted the council undoubtedly could have entered into a valid contract for said work. How, then, can the preliminary work of preparing specifications, receiving bids and the acceptance of one of the bids received, subject to the making of a formal contract, in any way affect said right?</p> <p>Suppose that after the conditional acceptance of said bid the contractors had expressed their willingness to enter into a formal contract, had tendered the bonds provided for and then demanded that council proceed to join with them in the execution of a formal contract, and the council had set up its lack of authority to make such contract until after said ordinance had been published and posted according to law, what standing would the contractors have had to enforce such a demand? It is clear that they would have no standing whatever; hence the mere acceptance of said bid, either conditionally or otherwise, prior to the publication and posting of said ordinance, would not and could not constitute a contract between the borough and the contractors.</p> <p>In the case of Carpenter v. Yeadon Borough, 208 Pa. 396, an ordinance was passed by council, vetoed by the burgess, and then passed over the veto, but was not published and posted as required by the Act of April 3,1851. Said ordinance granted to Carpenter the right to use his land in the borough for cemetery purposes under certain conditions one of which was that he pay $6,000 to the borough. The ordinance also provided that a street should be laid out and opened for public use through the land and. that a portion of an avenue near the land should be vacated; that the ordinance should not become operative unless Carpenter should within ten days after its passage execute and deliver to the borough an agreement to comply with the terms of the ordinance and should give security for the payment of the $6,000. It was further provided that the ordinance should not be. published until the execution and delivery of the agreement and the costs of publication had been paid to the borough. The agreement was delivered and the costs of publication of the ordinance were paid to the borough. Carpenter tendered security for the payment of the $6,000, which was declined. He then applied for a writ of mandamus commanding the Borough of Yeadon, the chief burgess and the council of the borough, “to forthwith cause the ordinance of said borough entitled...... and known as Ordinance No. 50, to be published according to law so as to render the same operative or show cause why the same should not be done, or that a rule be granted on said respondents to show causes why a mandamus should not be issued for the purposes aforesaid.” The court having overruled a motion to quash the writ and directed the defendants to file a return, the case was tried by the court without a jury under the Act of April 22, 1874, P. L. 109. The court found a “verdict in favor of the plaintiff against the corporate authorities of the Borough of Yeadon requiring them to advertise and publish Ordinance No. 50 in accordance with the provisions of the third section of the Act of Assembly of April 3, 1851.” From the judgment subsequently entered on said finding the defendants appealed.</p> <p>In reversing said judgment and dismissing the writ of alternative mandamus, Mr. Justice Mestrezat, speaking for the Supreme Court, said inter alia: “......Publication is a duty imposed upon the corporate officers, and until it is performed no rights are granted, and the observance of no duties is enjoined, by the ordinance which can be enforced by or against the municipality. Before the statute has been complied with in this respect, the ordinance remains in the hands of the officers of the corporation awaiting the performance of an act by them essential to give it validity as a law of the borough.</p> <p>“Conceding that the purpose and intention of the council was by this enactment, to contract with the plaintiff on the terms therein set forth, yet if publication was necessary to make it operative, as is recognized by the plaintiff in instituting this proceeding, it is apparent that the contract was not consummated and is not yet obligatory on the borough. A statutory prerequisite to its completion and validity is concededly wanting, and the power of the court is invoked to compel one of the parties, the borough, to consummate the agreement. In other words, we are asked to compel the corporate officers of the borough to complete negotiations pending between the parties so that the negotiations will become effective as a contract and obligatory upon the borough. This, in effect, is the prayer of the petition for the mandamus. If, therefore, we award the writ commanding the borough to cause the ordinance To be published according to law so as to render the same operative,’ as prayed for in this application, the court will compel the execution of an agreement which is simply discretionary with the corporation. This we cannot do. The court will enforce by mandamus the performance of a mandatory ministerial duty, but it has no authority to compel a municipal corporation to execute an agreement which is a discretionary act, or to take any steps toward the consummation of such an agreement......” The case from which we.have thus quoted is authority for at least three legal propositions: 1. That as to all ordinances within the third section of the Act of April 3, 1851, the duty to publish and post said ordinances in the manner required by said act is mandatory, and until it has been performed the ordinance remains inoperative. 2. While the duty to thus publish and post such ordinances is mandatory in order to make them valid and operative, the performance of said duty is, nevertheless discretionary with the council, in the sense that it may decline to perform it and thus render an ordinance inoperative. 3. Until such an ordinance has been published and posted as required by said act it remains inoperative by the ordinance which can be enforced by or against the municipality.</p> <p>Applying these principles to the case at bar, it is clear that there was no contract between said borough and the firm of William McIntyre & Sons prior to the formal contract entered into on September 26, 1911, after said ordinance had. become operative by virtue of its having been published and posted for a period of more than ten days prior to said date, as required by the third section of the Act of April 3,1851.</p> <p>We are therefore, unable to discover anything in the first reason urged by the learned counsel that would justify a finding that said contract is illegal.</p> <p>2. The second reason is embodied in the fifth paragraph of the plaintiff’s bill, and is there stated as follows :</p> <p>“Said ordinance had never been advertised since its passage as required by law.”</p> <p>As no question has been raised as to the publication and posting of said ordinance while the same was pending in council, as required by the Act of May 12,1911, it is evident that the advertisement here referred to is the publication required by the third section of the Act of April 3, 1851, P. L. 320, 323, which provides, inter alia, as follows:</p> <p>“IV. To publish in at least one newspaper, if such be printed in the proper county, and by not less than twelve advertisements, to be put up in the most public places in the borough, every enactment, regulation, ordinance or other general law, at least ten days before the same shall take effect.”</p> <p>The learned counsel is evidently mistaken as to this matter, as the testimony of Mr. Graber, the secretary of the borough council, shows that the street commissioner of said borough, acting under his instructions, posted said ordinance on September 9, 1911, which was four days after the final passage of said ordinance over the veto of the burgess on September 5,1911. The testimony of Mr. Graber further shows that said ordinance was published in the Sharpsville Advertiser on September 13, 1911, which was eight days after its passage over the veto of the burgess on September 5, 1911. These matters are embodied in our eighteenth and nineteenth findings of fact. The presumption is that said publishing and posting was done by direction of the council of said borough, and that it was done in accordance with the requirements of said act of assembly. This reason, therefore, requires no further discussion.</p> <p>3. The third reason is also embodied in the fifth paragraph of the plaintiff’s bill, and is as follows:</p> <p>“The Burgess and Paving Committee did not procure or prepare any specifications of said paving after the passage of said ordinance or at any other time and did not submit specifications to the Council for their ratification after the passage of said ordinance or at any other time.”</p> <p>The second section of said ordinance is as follows:</p> <p>“Section 2. The Burgess and Paving Committee are hereby directed to prepare or procure full and complete specifications of said paving, and advertise for proposals or bids for the contract therefor, which specifications and all proposals and bids received shall be submitted to the Council for their ratification.”</p> <p>The testimony shows, as set forth in our ninth, tenth, eleventh and twelfth findings of fact, that on August 1st, 1911, the council of said borough passed said ordinance on the third or last reading prior to its presentation to the burgess for his. approval. [That on August 15,1911, the borough engineer and the paving committee of the council presented to said council at its regular meeting held on that date, full and complete specifications for the paving of said Mercer avenue.] (3) That on the same date, and at the same meeting, the council approved or accepted same and directed the secretary to have a sufficient number of copies thereof printed and to advertise for bids for paving-said Mercer avenue in accordance with said specifications. That the burgess did not act with said paving committee in the preparation or procuring of said specifications. The burgess was present at the meeting of council, however, when said specifications were presented and approved, and the secretary directed to advertise for bids for doing the work in accordance therewith, and made no objections whatever thereto.</p> <p>[It thus appears that the only omission in the way of a strict and literal compliance with the terms of the second section of said ordinance is that the borough engineer, instead of the burgess acted with the paving committee in the preparation or procuring of said specifications. The direction by the council that said specifications be prepared or procured by the burgess and paving committee relates merely to the form or manner in which said specifications were to be provided, and may, therefore, well be considered as merely directory. The real essence or substance of the thing desired was the specifications, and the manner of obtaining them was a mere incident. Hence when specifications presented by the borough engineer and the paving committee were considered and accepted by the council the provisions of the ordinance as to that matter were substantially complied with.] (6) There is no intimation that the burgess had any technical knowledge or special qualifications as to specifications for street paving not possessed by the borough engineer, nor is it alleged that the specifications presented to and accepted by council were not full and complete, or that they were in any manner defective. We are of the opinion, therefore, that there is nothing in the third reason that renders said contract illegal or invalid.</p> <p>4. The fourth reason is that:</p> <p>“Said Burgess and Paving Committee did not advertise for proposals or bids for the contract thereof or submit any proposals or bids to the Council for their ratification after said ordinance was passed or at any other time, as provided by the second section of said ordinance hereinbefore referred to.”</p> <p>[What we have said as to the third reason urged by the learned counsel is equally applicable here. The testimony shows that at the meeting of August 15, 1911, when said specifications were presented to and accepted by the borough council, said council directed the secretary to advertise for bids of proposals for the paving of Mercer avenue in accordance with said specifications. That in pursuance of said direction the secretary did advertise for bids, and when the bids were received he, by direction of said council at its regular meeting held on September 5, 1911, opened said bids in the presence of council and one of the bids so received was accepted by the council at said meeting. This we think, was a substantial compliance with the provisions of said ordinance; hence this reason does not require further discussion.]” (7)</p> <p>As a summary of the facts shown by the testimony, we may say: That the evidence shows that said ordinance was regularly introduced at a regular meeting of the council of said borough; that it passed three separate readings at three separate regular meetings of said council; that while said ordinance was pending before said council it was regularly published and posted in the manner required by the Act of May 12,1911, P. L. 288; that said ordinance was not finally adopted or enacted until after the expiration of more than thirty days after the date of its introduction; [that after said ordinance had passed its third reading the borough engineer and the paving committee of said borough presented to said council full and complete specifications for the paving of said Mercer avenue] ; (8) that said council approved said specifications at a regular meeting and directed the borough secretary to advertise for bids or proposals for paving said Mercer avenue in accordance with said specifications; that in pursuance of said direction from the council the borough secretary did advertise for bids or proposals for said work, said bids to be presented not later than six o’clock, p. m., on September 5, 1911; that on August 15,1911, the burgess of said borough returned said ordinance to the council accompanied by his veto, and said veto was spread at large on the minutes of said meeting, and said ordinance was then laid over until the next regular meeting of the council, to be held on September 5,1911; that at the regular meeting of said council on September 5, 1911, said ordinance was taken up for reconsideration and, after such consideration, it was passed over the veto of the burgess by the unanimous vote of all the members elected to said council, the roll being called and the name and affirmative vote of each of said members entered upon the minutes of council; that after the passage of said ordinance over the veto of the burgess the borough secretary, by direction of said council, opened the two bids received for said paving, and it appearing that the bid of William McIntyre & Sons was the lower, said council accepted said bid subject to the giving of the bonds and the making of the formal contract required by said specifications; that said ordinance was thereafter posted on September 9, 1911, and published in the Sharpsville Advertiser on September 13, 1911, as required by the third section of the Act of April 3, 1851, P. L. 320, 323; [and that on September 26, 1911, being more .than ten days after the publishing and posting of said ordinance, said borough entered into a formal contract with said firm of William McIntyre & Sons for the paving of said Mercer avenue in accordance with said specifications.] (9)</p> <p>A decree was entered dismissing the bill.</p> <p>Error assigned was decree dismissing the bill.</p> <p>— Matters involving judgment and deliberation on the part of the persons entrusted therewith cannot be ignored or set aside. They are matters of importance which all parties concerned have a right to see are observed: Hoffman v. Pittsburgh, 229 Pa. 36; Bullitt v. Philadelphia, 230 Pa. 544.</p> <p>The contract was premature: Clark v. Martin, 49 Pa. 289; Warren & Franklin Railway Co. v. Land & Imp. Co., 54 Pa. 28; Cox v. Connellsville Borough, 22 Pa. C. C. R. 657; Com. v. Beaver Borough, 171 Pa. 542; Tunkhannock Borough Exten., 3 Pa. C. C. R. 480.</p> <p>— Where parties are merely negotiating as to the terms of an agreement to be entered into between them, there is no meeting of minds while such agreement is incomplete: Hepburn v. Philadelphia, 149 Pa. 335; Smart v. Philadelphia, 205 Pa. 329; Carpenter v. Yeadon Borough, 208 Pa. 396.</p> <p>There was no irregularity in the preparation of the specifications for the paving.</p>

<p>Negligence — Townships—Defective road — Guard rail.</p> <p>1. In an action against a township to recover damages for personal injuries, the case is for the jury, and a verdict and judgment for plaintiff will be sustained, where the evidence for the plaintiff tends to show that at the time of the accident plaintiff was driving a one-seated buggy with another woman and two children along a public highway; that the plaintiff’s horse was directed homeward, and was ascending a hill, when it approached a point in the road estimated at from nine to fourteen feet wide with an embankment on one side and a steep declivity on the other, without any guardrail; that at this point plaintiff met another team; that the two horses stopped; and that immediately thereafter plaintiff’s horse began to back down across the road over the declivity, and plaintiff was thrown out and injured.</p> <p>2. In such a case it is for the jury to determine whether or not the supervisors should have foreseen that one of the natural consequences of the absence of a guard-rail was that upon the meeting of two vehicles at the point in question a horse might become restless and back over the declivity, particularly a horse obliged to stop while approaching his home and going up hill.</p>

<p>Will — Bequest of personalty — Power to consume — Trust and trustees — Active trust — Survivorship—Failure of charitable bequest.</p> <p>1. Testator directed a sale of his real and personal property and provided that the fund therefrom should be placed in a bank at interest for the maintenance and support of his two sisters. He also provided that “should interest not provide for their maintenance and support, the principal is to be drawn on.” A person named was to act as trustee of this fund. He further provided that at the death of either of his sisters the “balance of money in bank be held for survivor to be used for her support.” At the death of both sisters the balance of moneys was to be paid to a charity named. Ttestator died within thirty days of the execution of his will, and the remainder to the charity failed. Held, that the fund was not payable immediately to the sisters, but should be held by the trustee for the purposes named in the will.</p> <p>2. In such a ease the trust is an active one, and it did not fail because it became inoperative to protect the remainderman; nor does the failure of a charitable bequest and the resulting intestacy advance the time for distribution.</p> <p>3. 'Wherever it is necessary for the accomplishment of any object of the creator of a trust that the legal estate should remain in the trustee, then the trust is a special active one.</p> <p>4. The rule that a bequest of personalty with power to consume is presumed to be an absolute gift, is not a rule of law but a rule of construction only, in aid of discovery of the testator’s intention.</p>

<p>Negligence — Railroads—Master and servant — Fellow servant — ■ Act of June 10, 1907, P. L. BBS.</p> <p>1. In an action by an employee of a railroad company against his employer to recover damages for personal injuries, a nonsuit is properly entered, where it appears that the plaintiff was one of a number of men engaged in building a railway trestle, and that at the time he was injured was working with the foreman, on a scaffold ; that the foreman directed a fellow workman to get the blocks ready to raise material for the work; and that in carrying out this order the workman jerked a rope in such a manner that it struck a plank on which the plaintiff was standing and caused his fall.</p> <p>2. The Act of June 10, 1907, P. L. 523, applies where there is negligence in giving an order, the execution of which would naturally and reasonably cause injury, but it has no application where the only negligence shown is in the manner in which a proper order is executed.</p>

<p>Appeal, No. 116, Oct. T., 1912, by defendant, from judgment of C. P. Armstrong Co., June T., 1911, No. 216, on verdict for plaintiff in case of William C. Easley v. Pennsylvania -Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Patton, P. J.</p> <p>The circumstances relating to the accident are set forth in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Error assigned, was in refusing binding instructions for defendant.</p> <p>cited: .Walsh v. R. R. Co.,-222 Pa. 162; Hoffman v. Penna. R. R. Co., 215 Pa. 62.</p> <p>cited: Coolbroth v. Penna. R. R. Co., 209 Pa. 433; Calhoun v. Penna. R. R. Co., 223 Pa. 298.</p>

<p>Appeal, No. 191, Oct. T., 1912, by plaintiff, from judgment of C. P. Armstrong Coi, March T., 1911, No. 150, on verdict for defendant in case of Henry M. Kahn and Margaret B. Kahn, his wife v. Kittanning Electric Light Company.</p> <p>Trespass to recover damages for the death of plaintiff’s son. Before Patton, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The trial judge charged as follows:</p> <p>. In this case the court regrets very much to have to take the ease from the jury, and to decide it for itself. The Supreme Court has laid down the rule that such responsibility must often be assumed by the court, and we do not desire to evade or shirk our responsibility, however much we would prefer to submit the case to the decision of the jury.</p> <p>[We have been asked on the part of the defendant to instruct you that under all the evidence in this case your verdict must be in favor of the defendant. We feel constrained under the testimony, after we have read a number of cases and decisions of the Supreme Court to grant that request, and say that you should return a verdict in favor of the defendant.] (2)</p> <p>[In this case there is no question that this young man met his death in a very unfortunate manner. But before a verdict should go against the defendant, it is incumbent on the plaintiff to show some specific act of negligence on the part of the defendant. There is testimony in the case that these poles were erected 184 feet apart, and while in some places the ordinary rule is to erect their poles from 100 to 120 feet apart, there is not sufficient evidence that it was the distance between these poles that caused the injury to this boy.] (3)</p> <p>[If there had been testimony, that by reason of those poles being erected such a distance apart, or if there had been testimony that on account of no guy-wires being fixed to the poles, and that that was the immediate and proximate cause of the accident, then the plaintiff in this case could have recovered. The nearest we have to that is the testimony of Mr. Bell, who testifies that he saw these wires and poles before the accident, and that he saw them afterward, and he infers and says it is his opinion that these wires being so close together and sagging as he describes them, may have come together that night, and that that may have been the cause of this wire falling down. Mr. Bell did not know where this wire came apart, whether it was in the middle between the two poles, or close to either one of them. He says that ordinarily there would be a mark on the other wire showing where the wires came together, but there is no evidence as to that. So at most it is but a conjecture or guess, and the law seems to us to be plain, that the plaintiff has not complied with the requirements of the law, that is that they have not produced such certain' evidence or such evidence upon which the jury could decide the case. As we look at it, under the law, it is our duty in this case to direct a verdict in favor of the defendant.] (4)</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (2-4) above instructions quoting them.</p> <p>— The case was for the jury: Morgan v. Westmoreland Electric Co., 213 Pa. 151; Dutton v. Philadelphia B. & W. E. R. Co., 32 Pa. Superior Ct. 630; Eagle Hose Co. v. Electric Light Co., 33 Pa. Superior Ct. 581; Fitzgerald v. Edison Elec. 111. Co., 200 Pa. 540; Crowe v. Nanticoke Light Co., 209 Pa. 580; Turton v. Powelton Elec. Co., 185 Pa. 406.</p> <p>—The case resembles those of Lanning v. Pittsburgh Railways Company, 229 Pa. 575; Smith v. East End Electric Light Co., 198 Pa. 19; Aument v. Pennsylvania Tel. Co., 28 Pa. Superior Ct. 610.</p> <p>It has been frequently decided that in such a case as this the rule of res ipsa loquitur does not apply: Kepner v. Traction Co., 183 Pa. 24; Patterson Coal & Supply Co. v. Rys. Co., 37 Pa. Superior Ct. 212.</p>

<p>Practice, C. P. — Trial—Continuance—Discretion of court.</p> <p>A motion for the continuance of a case is addresssed to the sound discretion of the trial court, and its order will not be overruled by the appellate court in the absence of clear proof of an abuse of power.</p>

<p>Appeal, No. 200, Oct. T., 1912, by William N. Ferguson and Samuel F. McGary, from order of O. P. Armstrong Co., June T., 1912, No. 74, dismissing petition for the appointment of viewers in re Petition of William N. Ferguson, et al.</p> <p>Petition for tbe appointment of viewers.</p> <p>The material portions of the averment are set forth in the opinion of the Supreme Court.</p> <p>The court dismissed the petition.</p> <p>Error assigned was order dismissing the petition.</p> <p>cited: East Penna. R. R. Co. v. Hiester, 40 Pa. 53; Port v. R. R. Co., 168 Pa. 19; Davis v. R. R. Co., 26 Pa. C. C. R. 527; Buck Mountain Coal Co. v. Coal and Navigation Co., 5 Luzerne Leg. Reg. 51.</p>

<p>Appeal, No. 18, Oct. T., 1912, by plaintiff, from judgment of C. P. Greene Co., March T., 1909, No. 136, on verdict for defendant, in case of John Call, Administrator of Elizabeth Call, deceased, and John Call v. Hallam Construction Co.</p> <p>Trespass to recover .damages for personal injuries. Before Holt, P. J., specially presiding.</p> <p>At the trial it appeared that on September 27, 1908, in the evening, Elizabeth Call fell into an excavation made in an alley by the defendant company. The company at the time was engaged in work, under a contract with the Borough of Waynesburg, of improving streets.</p> <p>Defendant made the following offer:</p> <p>By Mr. Irwin: We propose to introduce in evidence the ordinance of the Borough of Waynesburg providing for the grading of Lincoln street past the Call property and past the place where the excavation was made in which this injury occurred. To follow that by the contract entered into between the Borough of Waynesburg and the Hallam Construction Company for the grading and paving of Lincoln street.</p> <p>For the purpose of showing that the contract entered into by the Hallam Construction Company under which that paving and grading was done in pursuance of the borough ordinance did not embrace the grading or paving of this private alley where it intersected Lincoln street at the point where this injury occurred.</p> <p>This is to be followed by evidence showing that that excavation was made under an arrangement between W. W. Call, the husband of the owner of the property and Mr. Freeland, who' had charge of the men of the Hallam Construction Company who were doing the grading of Lincoln street, and to show further that he had no authority to make any contract for the Hallam Construction Company; that he had no authority on behalf of the Hallam Construction Company to enter into an agreement to do the excavation; and that the Hallam Construction Company had no knowledge that any such an arrangement was entered into until the excavation had been completed, and also there was no ratification of the arrangement.</p> <p>Objection: By Mr. Purman: Plaintiffs object to the evidence offered:</p> <p>1. Because the evidence offered is not an offer to show that the defendant company did not do the work of digging the ditch across the pavement, and therefore the contract between the defendant company and the borough concerning their grading would be incompetent, irrelevant and immaterial.</p> <p>2. Further that the defendant cannot excuse itself of negligence by offering to show that it had no contract Avith the municipality for the excavation made out of which the negligence arose.</p> <p>3. That it is generally incompetent, irrelevant and immaterial.</p> <p>By the Court: We will overrule the objection, admit the evidence, grant an exception and seal a bill.</p> <p>By Mr. Irwin: I desire to offer in evidence at this point the ordinance which has been identified by the secretary of the council and ask to read the same to the jury.</p> <p>Objection: By Mr. Purman: Plaintiffs object to the offer of the ordinance for the reason that it is incompetent, irrelevant and immaterial. It does not prove nor tend to prove the defendant company did not commit the trespass complained of in the declaration. Neither does it show or tend to show justification of the excavation complained of.</p> <p>By the Court: Objection is overruled, offer admitted, exception granted and bill sealed. (9)</p> <p>Same read by Mr. Irwin.</p> <p>The court charged in part as follows:</p> <p>[The jurors, however, are the judges of the kind and character of the warning to be given — that is, the jury examine the facts and circumstances and ascertain whether or not the warning given of the existence of the excavation is such that a reasonably prudent person would have given in the circumstances — or if no warning has been given, whether or not the circumstances are such that a reasonably careful person would have put up a warning, and what the character of the warning required.] (12)</p> <p>[Now, gentlemen, we say to you, that if the employees of the defendant company made an error in opening that side walk, then for anything that resulted because of that excavation having been made, the defendant company would be liable unless from subsequent facts and circumstances it was relieved.] (13)</p> <p>[Now, gentlemen, you will determine, first: Was this excavation made without any authority from the property owners?</p> <p>Now, we say to you if it was, the property owners did not recognize it — did not acquiesce in it, did not approve it — then gentlemen of the jury, the defendant would be required to guard this excavation and put up barricades, lights or other warning reasonably necessary in the circumstances to warn travelers upon the sidewalk of the excavation.</p> <p>Again, gentlemen, there is another question that you will also have to take up if you find that this excavation was not made by the defendant’s employees by accident or by mistake alone; and that is whether or not the excavation was made under an arrangement or agreement with the property owners. Now if yon find that it was, then there is another question for you to determine; and that is whether it was made under the direction and control of W. W. Call. If it was, if it was merely a contract in the first instance or arrangement for the grading, and that was made under the direction and control of W. W. Call, — the employees of the Hallam Construction Company merely doing the work under Call’s supervision and direction, then it would be the duty of Call to protect that excavation. And if you find such to be a fact, there could be no recovery in this case.</p> <p>On the other hand if you find the excavation was made under the control of the employees of the defendant company, — that is, if they took entire charge of it and it was under their control and supervision while it was being excavated; but after it was excavated the property owners agreed to become responsible for it — in other words took it off their hands, if it was then a completed job, so far as the Hallam people were concerned, then it would be the duty of Call — W. W. Call — to guard that excavation and in such event there could not be a recovery here.</p> <p>Again, gentlemen, if you find that such was not the case you will then inquire whether or not there was an arrangement between the foreman for the defendant company and the property owners for the doing of the work including the subgrade and putting in of the paving. If you find there was such an arrangement and that the work was done under the direction and supervision of W. W. Call, then there could be no recovery in this case, for in such circumstances it would have been the duty of W. W. Call to have guarded the excavation.] (W)</p> <p>[Gentlemen, if you find here that there was such an arrangement as was contended for here by the plaintiffs with the agent of the defendant and that agent’s act was ratified, and you find that the defendant was guilty of negligence that contributed to bringing about this injury, then you will pass to another question.</p> <p>If you should find the defendant was guilty of negligence through its agents and employees that did contribute to bring about this accident, still the defendant would not be liable if Elizabeth Call contributed in no way to the bringing of that injury upon herself.</p> <p>Now in determining whether or not she was guilty of contributory negligence in approaching that place, you will take into consideration her age, the kind of an evening it was as to darkness, the condition of the streets in the neighborhood of this sidewalk, and all of the other facts and circumstances present at that place. Did she know that there was already a depression in this sidewalk, if there was such? And did she not, gentlemen of the jury, do that which a reasonably prudent person would have done in approaching it? Or did she fail to do something in approaching that depression, if one existed, that a reasonably prudent person would not have failed to do? If she failed in either of these respects, she would be guilty of contributory negligence and she could not recover no matter how negligent the employees of the defendant company may have been.] (15)</p> <p>Plaintiffs presented these points:</p> <p>POINTS.</p> <p>1. That this action is a joint action brought in the lifetime of Elizabeth Call by the plaintiffs against the defendant for injuries alleged to be wrongfully inflicted upon the person of the wife, and if the jury find in favor of both of the plaintiffs it is their duty to render two verdicts, one verdict in favor of John Call, administrator of Elizabeth Call, deceased, for such sum or amount as her earning power may have been diminished by reason of her injury from the time of her injury to the time of her death and for such additional time as she would probably have lived if the injury had not occurred; together with such sum or amount as would reasonably compensate her for the pain and suffering sustained by her by reason of the injury; the other verdict in favor of John Call for such sum as the jury may find he has been obliged to expend on account of the injury from the time the injury was sustained up to the time of her death, including the loss of the fellowship, society and comfort sustained by him by reason of the injury from the time of the injury up to the time of his wife’s death.</p> <p>Answer: Refused and not read. (1)</p> <p>2. It was the duty of the defendant to keep the foot-way or pavement on Lincoln street, while making the improvement, in reasonably safe condition for travel and it was also its duty when digging and excavating across the footway or pavement, to place a light or other warning at or near said excavation at night, to prevent injury to travelers, and if the jury believe from the evidence that the defendant in this action made or caused to be made the excavation on or across the pavement of Lincoln street, (into which Elizabeth Call fell and was injured,) and that defendant left it open and wholly unguarded, and without a light, and that because of this negligence Elizabeth Call, in the night time, fell into the excavation and was injured, without fault on her part, then the jury may find for the plaintiffs.</p> <p>Answer: Refused and not read. (2)</p> <p>3. Plaintiffs’ right to recover in this action is not Controlled by whatsoever authority or for whom Hallam Construction Company actually made' the excavation across the footway or pavement, (into which Elizabeth Call fell and was injured,) but the question for determination by the jury is did the defendant company make the excavation and, if so how and in what manner did they make it, and also, was it dangerous, and did they negligently leave it by night unguarded, without light or other warning, and was it because of this negligence that Elizabeth Call was injured, and if the jury believe from the evidence that Hallam Construction Company made the excavation and negligently left it by night unguarded, without light or other warning, and that because of its leaving it so unguarded Elizabeth Call, without fault on her part, fell into the ditch and was injured, then the defendant, Hallam Construction Company, is liable to answer in damages for such neglect and consequent injury, no matter for whom they were actually doing the work.</p> <p>Answer: Refused and not read. (3)</p> <p>4. Even if the jury should believe from the evidence that the defendant, Hallam Construction Company, made the excavation in the footway or pavement for or at the instance of the abutting property owners and without authority from the borough, yet, if they do believe from the evidence that said Hallam Construction Company negligently left said ditch or excavation open and wholly unguarded by night, without light or other warning, and that the same was dangerous, and that because of this negligence Elizabeth Call fell into said ditch or excavation and was injured, then plaintiffs are entitled to recover in this action, provided the jury further find that Elizabeth Call did not contribute to the cause of said injury.</p> <p>Answer: Refused and not read. (4)</p> <p>Defendant presented these points:</p> <p>1. If the jury find from the evidence that the contract, under which the Hallam Construction Company was paving Lincoln street past the point where the accident occurred, did not embrace the grading and paving of the private alley-way where the plaintiff was injured, but that the grading of that alley-way was done by the employees of the Hallam Construction Company under an arrangement between the owners of the property where the accident occurred and the man in charge of the men who were doing the grading, before the defendant company can be held liable for negligence in not properly guarding that excavation or placing lights there at night to warn the traveling public, it must be shown that either the man in charge of the employees, with whom the owner of the property had the arrangement for having the alley-way graded, had authority to enter into a contract on behalf of the Hallam Construction Company to do that work or that the Hallam Construction Company had knowledge that he had undertaken to grade that alley on behalf of the company and ratified and approved his agreement and permitted the work to be done in pursuance to his arrangement with the owner of the property.</p> <p>Answer: Affirmed. (5)</p> <p>2. If the jury find from the evidence that the contract under which the Hallam Construction Company was grading and paving Lincoln street past where the accident occurred, did not embrace the grading and paving of the private alley-way where the accident occurred, but that the grading of that alley-way was done by an arrangement between the owner of the property and the man in charge of the employees of the Hallam Construction Company who were grading the street, that that arrangement was simply for the grading of the alleyway and that the owner of the property before the accident occurred was informed or knew that the grading was completed, then it was his duty to take the necessary steps to protect the traveling public from falling into that excavation or from injury by reason of the excavation, and his failure so to do would not render the Hallam Construction Company liable for the accident for which this suit is brought.</p> <p>Answer: Affirmed. (6)</p> <p>3. If the jury believes from the evidence that immediately prior to the time when the alley-way where the accident occurred was excavated and for some considerable time prior thereto there had been an off-set of some fifteen or eighteen inches on the eastern side of the alley-way, the alley-way being that much lower than the footway immediately east of the alley, and that Elizabeth Call had frequently passed over that footway and alley going to and from her son’s residence and knew of the existence of that off-set in the pavement, then she was bound to exercise care when walking along the street on the night of the accident to avoid falling oyer that depression. If the jury finds from the evidence that she while walking from Washington street to her son’s on the south side of Lincoln street at the time of the accident was not paying attention to the condition of the sidewalk nor looking out for that depression in the pavement but that she simply walked on in the darkness heedless of the fact that there was a depression there until she walked over it and fell, then she was guilty of contributory negligence and the plaintiff in this case cannot recover even though it be true that the alley-way had been excavated deeper and that there was no barrier or lights to warn the traveling public.</p> <p>Answer: Affirmed. (7)</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were (9) ruling on evidence quoting the bill of exceptions; (1-7, 12-15) above instructions quoting them.</p> <p>— It is the duty of one in digging an excavation in the street and piling up dirt therefrom, to place a light at or near said excavation at night, to prevent injury to travelers: Kenyon v. Philadelphia, 9 W. N. C. 222; Corby v. Hill, 93 Eng. Com. Law Rep. (4 J. Scott. N. S.) 556.</p> <p>A party injured by the concurrent tort of two may sue either, and this right is not affected by any consideration of primary or secondary duties of the tort feasors as between themselves: Gates v. R. R. Co., 150 Pa. 50.</p> <p>Plaintiffs were not bound to inquire or even take notice for whom the defendant did the work, If the defendant did the work this was sufficient for plaintiffs, and the defendant must answer: Kessler v. Berger, 205 Pa. 289.</p> <p>The ordinance and contract were matters between strangers to this action and therefore inadmissible. The admission of this evidence and construction of the contract as given by the court, together with the instruction given in the charge relative thereto, did plaintiffs much harm: Kocher v. Bowman, 10 Watts 128; Mayberry v. Dudley, 2 Penny. 367; Kittanning Borough v. Thompson, 211 Pa. 169; Bratton v. Mitchell, 3 Pa. 44; Cummings v. Williamsport, 84 Pa. 472; Colonial Trust Co. y. Getz, 28 Pa. Superior Ct. 619.</p> <p>If a plaintiff's case does not disclose contributory negligence the burden is on the defendant to disprove by a preponderance of evidence the presumption of care on the part of the plaintiff: Coolbroth v. R. R. Co., 209 Pa. 433; Penna. R. R. Co. v. Weber, 76 Pa. 157; Fitzpatrick v. Traction Co., 206 Pa. 335; Schum v. R. R. Co., 107 Pa. 8; Penna. R. R. Co. v. Ogier, 35 Pa. 60.</p> <p>— When the laborers, who were employed by Call to make that excavation, had finished the work and left the job, their responsibility ended: Jessup v. Sloneker, 142 Pa. 527.</p> <p>In an action to recover damages for personal injuries, the plaintiff must show a case of negligence by the defendant, clear of contributory negligence by himself: Lee v. Woolsey, 109 Pa. 124.</p> <p>The general effect of the charge of the court, rather than a casual expression of it, must govern the interpretation or construction of it: Fitzpatrick v. Union Traction Co., 206 Pa. 335.</p> <p>A verdict of murder in the first degree will not be set aside, because the jury were furnished with liquor during the course of the trial, where it does not appear that there was a resulting misconduct or separation: Com. v. Salyards, 158 Pa. 501; Com. v. Jongrass, 181 Pa. 172.</p>

Appeal, No. 178, Oct. T., 1912, by plaintiff, from decree of O. P. Greene Co., No. 109, in Equity, 1906, dismissing bill in equity in case of Josiab V. Thompson v. John S. Craft, Administrator of B. L. Craft, deceased. Bill in equity for specific performance. Holt, P. J., specially presiding, found the facts to be as follows: FINDINGS OF FACT. First.

Appeal, No. 6, Oct. T., 1912, by defendant, from judgment of O. P. Indiana Co., June T., 1910, No. 361, on verdict for plaintiff, in case of Clymer Opera Company, for itself and for use of the Savings & Trust Company of Indiana, Pa., v. Flood City Mutual Fire Insurance Company. Assumpsit on a policy of fire insurance.' Before Tel-ford, P. J. The facts are stated in the opinion of the Supreme Court.

<p>Equity — Preliminary injunction — Laches—Appeals.</p> <p>1. The refusal to grant or continue a preliminary injunction is error only when the right threatened with invasion is an unquestionable one, and the only protection from irreparable injury to it is to be found in a court of equity.</p> <p>2. Where a plaintiff in an equity suit has taken an appeal from an order dissolving a preliminary injunction, and has delayed the argument of it for over a year, although he had an opportunity to be heard at three successive terms, his appeal will be dismissed.</p>

<p>Appeal, No. 62, Oct. T., 1912, by defendant, from judgment of O. P. Lawrence Co., June T., 1907, No. 28, on verdict for plaintiff in case of Peter Igoe, et al., copartners trading under the firm name of Igoe Brothers v. John M. Hansen.</p> <p>Trespass for the conversion of machinery. Before Galbreati-i, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $8,089. Defendant appealed.</p> <p>Errors assigned were various rulings and instructions.</p>

Appeal, No. 91, Oct. T., 1912, by plaintiff, from judgment of C. P. Lawrence Co., June T., 1910, No. 20, on verdict for defendant in case of First National Bank of New Castle v. New Castle. Assumpsit on certificates of indebtedness. Before Galbreath, P. J., specially presiding. At tbe trial tbe jury returned a verdict for defendant.

Appeal, No. 103, Oct. T., 1912, by plaintiff, from judgment of C. P. Lawrence Co., March T., 1912, M. I)., No. 17, for defendant on agreed facts in case of Commonwealth ex rel. Harvey L. Palmer v. David Samuel. Quo warranto to try title to office. The opinion of the Supreme Court states the case. Error assigned was in entering judgment for defendant. cited: Com. v. Sharetts, 231 Pa. 525; Com. v. Smith, 10 Just.

Appeal, No. 186, Oct. T., 1912, by defendant, from judgment of O. P. Lawrence Co., Dec. T., 1910, No. 93, on verdict for plaintiff in case of Ralph Schwartzfager v. Pittsburgh, Harmony, Butler and New Castle Railway Company. Trespass to recover damages for personal injuries. Before Porter, P. J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 193, Oct. T., 1912, by defendant, from judgment of C. P. Lawrence Co., March T., 1911, No. 87, on verdict for plaintiff in case of John B. Thor son v. Carnegie Steel Co.</p> <p>Trespass to recover damages for personal injuries. Before Porter, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The accident occurred on March 8, 1909.</p> <p>The court charged in part as follows:</p> <p>“This Act of 1905, provides that whenever practicable the machinery shall be safeguarded with safety devices. Prior to the passage of this act when a person went into a dangerous place to work he was held to assume the risk of his employment in that place. But if the company has not provided safety devices for his protection then he cannot be charged with assuming the risk of his employment.” (8)</p> <p>Plaintiff offered the following point:</p> <p>“3. If the jury believe that it was practicable for the defendant company to have provided and equipped its traveling crane and appliances in the bar mill with clamps, safety guards, gongs, or warning bells then the failure to do so would be in violation of the provisions of Section 2 of the Act of Assembly May 2, 1905, P. L. 352, and would constitute negligence on the part of the defendant, against which said negligence the defendant cannot set up the assumption of the risk by the plaintiff.</p> <p>“Answer: Affirmed.” (9)</p> <p>Verdict and judgment for plaintiff for $3,681.54. Defendant appealed.</p> <p>Errors assigned were, inter alia, (8, 9) instructions of the court as above, quoting them.</p> <p>cited: Wilson v. R. R. Co., 222 Pa. 341; Byers v. Coal Co., 230 Pa. 10; Zuraw v. Hammermill Paper Co., 232 Pa. 544; Fitzgerald v. Paper Company, 155 Mass. 155 (29 N. E. Repr. 464); Diehl v. Iron Co., 140 Pa. 487; Kennedy v. R. R. Co., 1 Mona. (Pa.) 271; Nattress v. R. R. Co., 150 Pa. 527; Hurley v. Lukens Iron & Steel Co., 186 Pa. 187; Mansfield Coal & Coke Co. v. McEnery, 91 Pa. 185; Del. L. & W. R. R. Co. v. Cadow, 120 Pa. 559; Pitts. & Connellsville R. R. Co. v. Sentmeyer, 92 Pa. 276; Wilkinson v. Mfg. Co., 198 Pa. 634.</p> <p>cited: Jones v. American Caramel Co., 225 Pa. 644; Valjago v. Carnegie Steel Co., 226 Pa. 514; Fegley ,v. Lycoming Rubber Co., 231 Pa. 446; Solt v. Williams-port Radiator Co., 231 Pa. 585; Bollinger v. Crystal Sand Co., 232 Pa. 636; Amiano v. Jones & Laughlin Steel Co., 233 Pa. 523.</p>

<p>Negligence — Street railways — Infants—Pleading—Statement of claim — Variance in testimony.</p> <p>1. In an action of trespass to recover damages for personal injuries, the action of the trial court in overruling a demurrer to the plaintiff’s statement will not he reversed on appeal where it appears that while the statement was not a clear and concise statement of the cause of action it alleged with sufficient clearness that the plaintiff, a child of five years, while crossing a street fell on defendant railway company’s track and was struck by a car run at high and dangerous speed and without warning of its approach; that the street was straight, and that the conductor of the car, who was acting as motorman, saw or by the exercise of proper care would have seen the danger in which the plaintiff was placed in time to avoid the accident. Such averments constitute substantially a charge of actionable negligence as the approximate ^cause of injury.</p> <p>2. In the trial of such an action, a refusal to withdraw the case from the jury because of a variance between the testimony of the plaintiff and his chief witness as to the side of the street from which plaintiff crossed, is proper where this ia unimportant in making out a prima facie case and became important only in the consideration of the defense.</p>

Appeal, No. 146, Oct. T., 1912, by defendant, from order of O. P. Butler Co., March T., 1912, No. 13, quashing appeal from award in case of Butler Engine and Foundry Company v. Borough of Butler. Appeal from award of viewers. Before Galbreath, P. J. The Borough of Butler, by virtue of an ordinance duly enacted, graded, paved and curbed Lookout avenue, a public street of said borough, upon which street the property of the Butler Engine and Foundry Company abuts.

<p>Trust and trustees — Deed of trust — Passive trust — Statute of limitations — Rule in Shelley’s case.</p> <p>1. A deed of trust executed by A. and Ms wife B. convoying certain real property belonging to A. to a trustee “in trust for the said B. and the children of the said B. on her body begotten and to be begotten by her husband the said A. their heirs and assigns forever,” under which the trustee has no active duties, vests in the wife a life estate only with remainder in fee to the children, if there is nothing dlse in the deed to in any degree modify the primary and presumptive meaning of the word “children” or to indicate that the children were to take by descent from their mother, as her heirs at law, and not as purchasers from their father. The children take as a class and include those who were born after the date of the deed as well as those bom before. -</p> <p>2. The trust constituted by such a deed is a dry and passive one and the statute of limitations on adverse possession would only begin to run against the children when their right of possession accrued upon the death of their mother.</p>

<p>Appeal, No. 154, Oct. T., 1912, by plaintiffs, from judgment of C. P. Beaver Co., March T., 1910, No. 310, for defendants in case of Henry A. Bryan and Mary Bryan, Widow and Heir at Law of Aaron Boone Bryan (now deceased), devisees and heirs at law under the Last Will and Testament of Ann Bryan, Deceased, v. The Jones & Laughlin Steel Co., Oliver A. Douds and All Others in Possession.</p> <p>Ejectment for tract of land in Hopewell Township. Trial before Holt, J., without a jury.</p> <p>The court found the facts to be as follows:</p> <p>FINDINGS OF FACT.</p> <p>1. On the 23d day of August, 1893, at No. 287, September Term, 1893, judgment was entered on an amicable revival sur judgment No. 291, September Term, 1888, in favor of Margaret J. Holt, as plaintiff, and against Henry A. Bryan and Aaron Boone Bryan, as defendants.</p> <p>2. That on or about the second day of June, 1895, Ann Bryan died, having first made her last will and testament in writing, wherein and whereby the plaintiff in this suit, Henry A. Bryan, became seized, inter alia, of the undivided one-third of the lands in dispute in this action.</p> <p>3. That on the 17th day of August, 1898, at No. 240, September Term, 1898, a writ of scire facias to revive and continue the lien of the said judgment at No. 287, September Term, 1893, was issued, which said writ of scire facias was served upon Henry A. Bryan, the plaintiff, and the same was not served on his cod'efendant, the said Aaron Boone Bryan.</p> <p>4. That after the return day of the said writ of scire facias at No. 240, September Term, 1898, no appearance or defense having been made by the said Henry A. Bryan, the plaintiff entered judgment on the 9th day of September, 1898, for want of an appearance and for want of an affidavit of defense; the prsecipe for the said judgment directing the prothonotary to enter judgment against the said Henry A. Bryan, one of the defendants in said judgment.</p> <p>5. That the prothonotary instead of following the command of the said praecipe entered judgment against the defendants named in the writ of scire facias, to wit: Henry A. Bryan and Aaron Boone Bryan.</p> <p>6. That on the 4th day of November, 1898, at No. 63, December Term, 1898, the plaintiff issued a writ of fieri facias (being an alias writ) on the said judgment at No. 287, September Term, 1893; and the sheriff by virtue of the last mentioned writ levied upon inter alia, the title of the said Henry A. Bryan in and to the lands involved in this suit, and on December 3, 1898, sold the same to Oliver A. Douds, one of the defendants in this action of ejectment.</p> <p>7. That the title acquired by the said Oliver A. Douds in and to the said property became by virtue of sundry conveyances vested in the defendant, Jones & Laughlin Steel Company.</p> <p>The court entered judgment in favor of the defendant. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p> <p>cited: Sherrard v. Johnston, 193 Pa. 166; Packer’s App., 6 Pa. 277.</p> <p>cited: Van Zandt v. Winters, 22 Pa. Superior Ct. 181; Packer’s App., 6 Pa. 277; Mencke v. Rosenberg, 202 Pa. 131; Wilson’s App., 90 Pa. 370; Hinds v. Scott, 11 Pa. 19; Sherrard v. Johnston, 193 Pa. 166.</p>

<p>Contracts — Interpretation—Jurisdiction O. C.</p> <p>1. Every contract should be construed so as to give effect to the intention of the parties. In ascertaining that intention, it is proper to consider all the negotiations leading to the formation of the contract, its subject matter, and the end to be accomplished.</p> <p>2. When a contract is capable of two interpretations, that which the parties themselves placed upon it, and acted upon for a series of years, will as a rule be accepted by courts as the proper interpretation of the true intent and moaning of the parties.</p> <p>3. Testator at the time of his death was the owner of 1,190 shares of the capital stock of a corporation which had 1,500 shares issued and outstanding. Tho remaining shares were owned by three children of the testator. By his will, made a year prior to his death, testator disposed of all his property including his holdings in the corporation. Under the scheme of his will, the business of the corporation was to be maintained and continued under the management of a son, one of the three children holding stock, until testator’s youngest child should arrive at the age of twenty-one years, unless all the legatees by unanimous consent in writing should otherwise agree. The testator appointed his wife and the before mentioned son guardians of his minor children and executors of his will. At the time of the will, testator was indebted to a bank on notes amounting to $87,000.00 for which the 1,190 shares of stock of the corporation were pledged as collateral, and was also indebted to the same bank in the sum of $25,000.00 secured by the mortgage on his mansion house. Testator contemplated the payments of his debts out of the proceeds of his life insurance, but it was found that only $7,000.00 of the insurance was payable to the estate while $93,000.00 was payable to the widow and heirs. To protect the estate and have it administered according to the wishes of the testator, the widow, legatees, and guardians entered into an agreement to pay off the indebtedness and adjust other matters relating to the interests of the widow and legatees, and by which the widow and legatees agreed to turn over the proceeds of the insurance to the executors for the estate. Some time later, negotiations were begun for the consolidation of the corporation with other similar companies, which negotiations ripened into a contract. In order to consummate the proposed consolidation the widow, legatees, executors and guardians entered into a written agreement giving their consent to the consolidation and embodying the terms and conditions upon which the consent was given and the contract agreed to. This agreement contained no language relating to the shares owned , by the individual holders of the stock. Ten clauses of its recitals referred to the different provisions of the will. There was no direct suggestion in the agreement that the individual shareholders should surrender their stock to the estate. The agreement provided for a distribution of the stock of the consolidated company received in the exchange among the parties. The parties to the agreement on the day of its execution, at a meeting of the stockholders of the corporation, ratified a resolution of the board of directors authorizing the distribution of the stock of the consolidated company, to be made upon the basis that the distribution provided for in the agreement referred to such part of the stock of the consolidated company as the estate of the testator was entitled to receive in exchange for the 1,190 shares of the capital stock of the company which the decedent owned, and did not include the remaining shares owned individually by three of the children of the testator. The stock of the consolidated company received in exchange for the 1,500 shares of the corporation was distributed according to such distribution as provided for by resolution of the board of directors, certificates were issued to the parties upon this basis and dividends were paid directly to the holders of this stock for a long period of years. Upon exceptions to the account of the executors, held, (1) that the agreement between the widow, legatees, executors and guardians giving their consent to the consolidation included only the 1,190 shares interest of the testator in the corporation and did not affect the interests of the other individual shareholders and that the three children who were individual holders were entitled to participate in the distribution of the consolidated stock in proportion to their individual holdings in the corporation; (2) that in considering the account of the executors the Orphans’ Court had no jurisdiction over the stock of the individual shareholders; and (3), that division of the consolidated stock among the persons entitled thereto was not to be made upon the basis of the appraised value of the property turned over by the corporation to the consolidated company at the time of the consolidation, but was to be made by distributing the common and preferred stock of the consolidated company to the stockholders of the corporation in- proportion to their holdings.</p>

<p>Negligence — Street railway — Answers to points.</p> <p>In an action of trespass against a street railway company to recover damages for personal injuries, the Supreme Court will reverse a judgment for plaintiff and award a venire facias de novo where points presented by the defendant correctly stating the law as applied to the facts were improperly modified in the answers of the court.</p>

Appeal, No. 126, Oct. T., 1912, by plaintiff, from judgment of C. P. Washington Co., Feb. T., 1910, No. 20, on verdict for the defendant in case of Robert M. Bane v. Pittsburgh Railways Company. * Trespass to recover damages for personal injuries. Before McIlvaine, P. J. The opinion of the Supreme Court states the case. Verdict for the defendant by direction of the court and judgment thereon. Plaintiff appealed. Error assigned was in directing verdict for the defendant.

Appeal, No. 183, Oct. T., 1912, by Alexander Heilman, from decree of O. O. Armstrong CO., March T., 1911, No. 14, dismissing exceptions to auditor’s report in Estate of P. F. McClarren, deceased. Exceptions to report of C. E. Harrington, Esq., auditor. Reed, P. J., specially presiding, filed the following opinion: This is a contest on distribution between the creditors of George K. McClarren, who is one of the legatees under the will of P. F. McClarren, deceased.

Appeal, No. 107, Oct. T., 1912, by defendant, from judgment of O. P. Washington Co., May T., 1911, No. 177, for plaintiff in' case of Washington County v. Pennsylvania Railroad Company. Assumpsit to recover money due under an agreement. Before McIlvaine, P. J., without a jury. The opinion of the Supreme Court states the case.

Appeal, No. 131, Oct. T., 1912, by plaintiff, from judgment of O. P. Washington Co., Feb. T., 1912, No. 1058, on verdict for defendant by direction in case of Louise Greed v. Manufacturers’ Light and Heat Company. Trespass to recover damages for the death of plaintiff’s husband. Before McIlvaine, P. J. The facts appear by the opinion of the Supreme Court. The jury found a verdict for the defendant by direction.

<p>Negligence — Street railways — Infants—Collision—Case for jury.</p> <p>In an action by the parents against a street railway company to recover damages for the death of a child six years of age, the case is for the jury and a verdict for the plaintiff will be sustained where it appears that the motorman had a clear and unobstructed view of the street for a distance of one thousand feet as he approached the point of collision, that the child started to cross the street before the car reached the intersection of a nearby street, and the testimony showed that the car was running at an undue and dangerous rate of speed.</p>

Appeal, No. 215, Oct. T., 1912, by plaintiffs, from judgment of O. P. Washington Co., May T., 1912, No. 79, overruling exceptions to adjudication in case of Commonwealth of Pennsylvania, ex rel., R. W. Wolfe, H. D. Browneller and R. C. Buchanan, the Directors of the Poor and of the House of Employment of the County of Washington, v. John H. Moffitt, County Controller of Washington County. Petition for alternative writ of mandamus.

<p>Appeal, No. 187, Oct. T., 1912, by defendants, from judgment of O. P. Somerset Co., Sept. T., 1907, No. 116, on verdict for plaintiffs in case of Henry B. McCormick and Vance C. McCormick, Trustees of tbe Estate of Henry McCormick, Deceased, v. John A. Berkey and John R. Boose.</p> <p>Issue framed under tbe Act of June 10, 1893, P. L. 415, to determine title to minerals underlying tract of land in Quemakoning Township. Before Holt, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury found a verdict in favor of the plaintiffs for the real estate in dispute, upon which judgment was entered.</p> <p>On a rule for a new trial and for judgment n. o. v., Holt, P. J., filed the following opinion:</p> <p>In this case an issue was framed between the plaintiffs and the defendants, to determine the right and title of the respective parties in and to a tract of mineral land in the Township of Quemahoning, in said county, bounded by lands of Jacob Lohr, and others, containing 192 acres and 118 perches strict measure.</p> <p>On the 14th day of May, 1887, the Johnstown Lumber Company became the owners in fee simple of a certain tract or piece of land in said township, containing 245 acres and 134 perches; and the Johnstown Lumber Company, on the 25th day of April, 1889, being so seized of said tract of land, executed and delivered unto one John Holsopple a deed for 192 acres and 134 perches of the said tract of land, reserving the right of the grantors to all the minerals underlying the same, with the usual mining privileges. The Johnstown Lumber Company, by another deed, dated October 28, 1891, conveyed unto the Cambria Land Company, by metes and bounds, the whole of the said tract of land containing 245 acres and 134 perches, excepting and reserving,, however, out of the operation of the grant, the 192 acres and 134 perches of the surface of said tract heretofore conveyed by the Johnstown Lumber Company to John Holsopple.</p> <p>. The Cambria Lumber Company’s interest in the said tract of land containing 245 acres and 134 perches was seized by the sheriff and sold as the property of the said Cambria Lumber Company, on December 13, 1893, unto one M. Saxman, Jr., and others, who on January 30, 1894, conveyed the whole of the said tract containing 245 acres and 134 perches excepting the 192 acres and 13 perches of surface, to Henry McCormick, who, by his last will and testament, in writing, dated the 31st day of March, 1894, since his decease duly probated and remaining of record in the proper office at Harrisburg, in this State, devised all his interest in the said tract of land unto his legal heirs, who, by virtue of certain articles of agreement, constituted the plaintiffs in this proceeding trustees for them, of the land so devised to them by the said Henry McCormick, deceased.</p> <p>The defendants claim the title to and the right of possession of the premises in dispute, under and by virtue of a deed to them, executed and delivered by the commissioners of Somerset County, dated the 28th day of December, 1904.</p> <p>The interest conveyed by the county commissioners of Somerset County to the defendants was the same that was conveyed to them by Peter Dumbauld, Treasurer of Somerset County, by his deed dated September 24, 1900, the said mineral land having been sold by the treasurer as unseated lands, for the nonpayment of taxes which were duly assessed and levied on the said premises in the years 1898 and 1899, in the name of the Johnstown Lumber Company, one of the plaintiff’s predecessors in title.</p> <p>Upon the trial, the plaintiffs took the position that the mineral lands in question were part and parcel of the 215-acre tract conveyed to Henry McCormick by the Johnstown Lumber Company, the surface rights in 192 acres and 13 perches of which the Johnstown Lumber Company had conveyed to John Holsopple, and that during the years 1898 and 1899 the said tract was seated land, and as such assessed; and that all of the taxes thereon were paid by the plaintiffs; while the defendants contended that by the deed of the Johnstown Lumber Company to John Holsopple, the minerals underlying the 192 acres and 131 perches of surface were severed from the 53 acres, which was part of the 215-acre tract, and that when M. Saxman, Jr., and others conveyed to Henry McCormick, they conveyed two distinct tracts to him, namely, a tract of land containing 53 acres, both minerals and surface, and another tract of minerals containing 192 acres and 131 perches, underlying the John Holsopple surface holdings; and that by reason thereof the 53 acres, and the minerals underlying the 192 acres and 131 perches, were separate and distinct estates, for the purpose of assessment and the levying of taxes, and that the minerals underlying the 192 acres and 131 perches were unseated, and that the treasurer’s sale passed a good title to the county commissioners.</p> <p>From the evidence it appears that for a period of about eight years after the grant to John Holsopple, 192 acres of land were assessed to him, and that 53 acres of land were assessed to the plaintiffs or their predecessors in title, no separate assessment having been placed upon the coal underlying either the Holsopple part, or the 53 acres of the said tract.</p> <p>The coal became valuable, and in the year 1898 the assessor, without any notice to the McCormicks, assessed the 53 acres as seated land, and assessed the coal underlying the Holsopple tract as unseated, in the name of the Johnstown Lumber Company. The plaintiffs paid the taxes, as they had paid them prior to that year, without any knowledge or notice whatsoever that the assessor had assessed the coal underlying the Holsopple surface as unseated land.</p> <p>Prom the time Henry McCormick purchased the said tract of land until long after the tax sale, it appears from the evidence thát a tenant under the McCormicks lived upon their said tract of land, and farmed the surface of the 53 acres, and that at all times there was sufficient personal property upon the premises out of which the taxes could have been made.</p> <p>The important question involved in this case is a legal one, and that is whether by the grant to John Holsopple there was a severance of the coal underlying the Holsopple surface, from the 53 acres, the surface rights of which were not affected by the said Holsopple conveyance. Upon the trial we took the position, that it was for the court to interpret the effect of the Holsopple deed upon the remaining part of the land of the Johns-town Lumber Company. We instructed the jury that the Holsopple conveyance worked a severance of the minerals from the surface of the Holsopple tract, but that it did not work a severance of the minerals underlying the Holsopple surface from the 53 acres, part of the original 245-acre tract.</p> <p>The conveyance not working a severance, were the minerals underlying the Holsopple tract unseated? We instructed the jury that the minerals underlying the Holsopple surface, and the 53 acres of surface and minerals, constituted but one single tract of land, and that if any part of the said tract was in fact seated land, the whole tract was seated; and that for the purpose of taxation, part of the tract could not be assessed as seated land, and the other part as unseated land; and that the assessment and payment of taxes upon the tract, even though assessed only as 53 acres, would prevent a sale of the minerals, part of the same tract, for taxes, as unseated land when the plaintiffs had no notice or knowledge of separate assessments.</p> <p>There was some question, upon the trial, as to whether or not there was sufficient personal property upon the premises, the surface of the 53 acres, to pay the taxes. This was a question for the jury.</p> <p>The trial resulted in a verdict for the plaintiffs. The defendants have made a motion for judgment non obstante veredicto, upon the whole record, and for a new trial, assigning in support of the motion for a new trial several reasons which we will take up seriatim.</p> <p>The first reason is that the court erred in admitting evidence by the plaintiffs to prove the assessment and payment of taxes upon lands other than the parcel in controversy. This exception has reference to the evidence admitted to prove assessment and payment of taxes on the 53 acres, part of the plaintiffs’ entire tract of land. Upon the trial, we were satisfied that such evidence was competent, and we are not now convinced that there was any error in admitting such evidence. The first reason is, therefore, not sustained.</p> <p>The second reason alleges error on the part of court in admitting evidence by the plaintiffs to prove that there was personal property on any other land than the property in controversy, upon which a levy might have been made to collect the amount of taxes upon the land in dispute. This reason raises the same question that is involved in the first reason, and from what we have already said in relation to the first reason, the second reason is not sustained.</p> <p>The third reason alleges that the court erred in refusing the motion of the defendants to strike out all of the testimony relating to the assessment or payment of taxes on any other property than the property in dispute; that it also erred in refusing to allow the defendants’ motion to strike out all testimony relating to the location of the personal property upon the tract of land alleged to belong to the plaintiffs, other than the property in dispute. This reason raises the same question involved in the first and second reasons; it is, therefore, not sustained.</p> <p>The fourth reason alleges that the court erred in its charge to the jury. It has not been pointed out wherein such alleged error exists; for this reason we do not consider the fourth assignment.</p> <p>The fifth reason alleges error on the part of the court in refusing to affirm defendants’ points which are marked as declined.</p> <p>The defendants’ second request, which was refused, is as follows: “If the jury find from the evidence that the assessors in making the assessment upon the 53-acre tract, did not intend and did not include the assessment of the minerals underlying the 192-acre tract, as a part of said assessment, then the payment of the taxes, or the location of the personal property upon the 53-acre tract, could not have the effect of drawing to it the mineral underlying the 192-acre tract, for the purpose of making it a part of the former tract.” To have affirmed this point would have been to practically direct a verdict for the defendants, if the jury should find that there was no intention on the part of the assessor to assess the minerals underlying the Holsopple surface. We are not convinced that there was any error in refusing the request.</p> <p>The request of the defendant marked “2-A,” which was refused, is as follows: “If the jury find from the evidence that the surface and mineral for the entire fee of the 53-acre tract was owned by the same person or persons, then the same could be assessed only as so many acres of land, and such assessment, by operation of law, effected a severance of the 192 acres of mineral therefrom, for the purposes of taxation.” Upon the trial we were not satisfied that any act of the assessor could by operation of law work a severance of any part of the estate from the other part thereof, without notice to or the consent of the owner; and we do not now see any reason for changing the views which we then held.</p> <p>The third request of defendants for instruction, which was refused, is as follows: “If the jury find from the evidence that Edward Zimmerman (tenant under the McCormicks), when he entered upon and took possession of the 53-acre tract of land, had the full extent of his possession set out and designed by lines marked on the ground, or by the boundary lines mentioned in the deed to John Holsopple, by which the latter’s land became severed from the land occupied by the former, so that the said boundary line between the two tracts could be known and ascertained with certainty, and confined himself accordingly to the 53 acres within said boundary, his possession cannot be taken or deemed to extend beyond his lines, so as to give the character of seated land to that which lies without.” This request was refused and not read to the jury.</p> <p>The mere fact that there may have been a conveyance separating the surface rights of John Holsopple under his deed from the surface of the part of the said tract containing 53 acres, would be of no controlling effect, and would not work a severance of the 53 acres from the minerals underlying the Holsopple surface rights. We are not satisfied that there was any error in declining this point.</p> <p>The fourth request of defendants, which was refused, reads as follows: “After the severance of the surface of the John Holsopple tract from the underlying mineral strata, by reservation of the same in his deed, the said mineral right became an independent interest in land, which formed a distinct possession; it was held upon a distinct title, and was as much the subject of separate taxation as the surface, and being undeveloped and having no improvements thereon, it was the duty of the assessor to return it as unseated mineral land.” From what we have already said concerning the instructions to the jury in the. general charge, as to the effect of the Holsopple conveyance, we think the refusal of this request was proper; an affirmance of it would have taken the case from the jury.</p> <p>The defendant’s fifth request, the refusal of which is alleged as error, is as follows: “After the plaintiffs, or their predecessors in title, conveyed the surface of the John Holsopple tract to the said John Holsopple, and reserved the minerals underlying the same, it became their duty to notify the county commissioners of this fact; and if they failed to do so, and thereby the minerals were assessed as unseated lands, and sold as such at a tax sale, the owners can not complain that the said mineral lands were placed upon the unseated list and sold as such for the nonpayment of taxes thereon.” Inasmuch as there was no severance of the minerals underlying the Holsopple surface from the remainder of plaintiffs’ tract of land, we think there was no obligation resting upon the plaintiffs or their predecessors in title to give notice of the conveyance to John Holsopple. When John Holsopple purchased, it was his duty for his own protection, to give notice to the county commissioners or the assessor of the fact of his purchase. We think there was no error in refusing this point.</p> <p>, The sixth request of the defendants, the refusal of which is alleged as error, reads as follows: “If the jury find from the evidence that the property in dispute was on the seated list, as a part of the 245-acre tract, in 1889, and after the severance of the surface overlying the same, to wit: from 1889 to 1898, the said minerals were not assessed at all, either as seated or unseated, and escaped taxation altogether, and in the year 1898, the year of the triennial assessment, it was assessed and returned by the assessor as unseated, and charged with the taxes for that year and the next, 1898 and 1899, on the unseated list, it became an original assessment of land, which was on no list, and it was not a case of notice to the owners, for they could not complain that they were deceived in finding it on the unseated list, for it was on no other.” From what we have already said, we do not think that the refusal of this point was an error.</p> <p>The eighth point for charge presented by the defendants, which was refused, is as follows: “If the jury find from the evidence that the property in controversy consists of a tract of undeveloped and unimproved mineral land, the surface overlying not being owned by the plaintiffs, you will then find that the same was in fact unseated land, and was properly assessed and returned as such by the township assessor; and his valuation and return thereof, in connection with the minutes of the county commissioners showing the rate of taxes levied thereon, followed by a certification thereof to the county treasurer, is a sufficient assessment to support a tax sale by him, after the taxes were due and remained unpaid for one whole year.” This point was refused for the reason that to have affirmed it would have been equivalent to instructing the jury that the coal underlying the Holsopple surface was severed from the other part of the plaintiffs’ tract and would have amounted to binding instructions, practically, for the defendants.</p> <p>The ninth request for instruction presented by the defendants, and which was refused, reads as follows: “Even if the jury should find that the plaintiffs were the owners of an adjoining tract of land occupied by one Zimmerman, which adjoining tract of land was seated, or upon which the plaintiffs paid taxes, the mineral land involved in this suit cannot be considered as a part thereof, or as one tract, for the purpose of taxation, so that the seating of the former or the payment of taxes thereon did not prevent a sale of the latter as unseated.” To have affirmed this point would have permitted the jury to interpret the legal effect of the Holsopple deed upon the remaining part of the 245-acre tract. In the trial we felt that it was the duty of the court to construe the conveyance as to its effect, so far as the minerals were concerned. To have affirmed the point would in our opinion have been error. The fifth reason in support of the motion for a new trial is, therefore, not sustained.</p> <p>The sixth reason is to the effect that the verdict is against the law of the case. We are not satisfied that there is any merit in this reason.</p> <p>The seventh reason charges that the verdict is against the evidence. An examination of the record will disclose that this reason is also without merit.</p> <p>This case in some respects presents a novel question. It is needless to cite authorities to sustain the position that where the surface of an entire tract of land is owned by one person, and the minerals by another, there are two separate and distinct estates; and each liable to assessment separately for the purposes of taxation. In the case under consideration, it is clear that the deed from the Johnstown Lumber Company to John Holsopple worked a severance of the minerals laterally, and of the surface rights in the Holsopple tract perpendicularly, from the surface of the remaining part of the 245-acre tract; but the important question is, was there a severance perpendicularly of the minerals underlying the Holsopple surface, from the remaining part of the 245-acre tract? If not, was so much of the minerals as underlie the Holsopple surface unseated for the purposes of taxation? No case has been cited by counsel on either side, nor have we been able to find any, decisive of either of these questions. Counsel for defendants have cited the case of Logan v. Washington County, 29 Pa. 373, and maintain that it controls the case now under consideration. In that case, it appeared that Logan owned 10 acres of land in Union Township in Washington County, and also owned the coal under an adjoining tract of 75 acres, which was assessed to him separately from the 10 acres, upon a separate return made by the assessor. We understand that in that case the 10-acre piece was a separate tract of land, held by Logan under a different conveyance from that under which he took and held the coal underlying the adjoining tract. However, the mineral was not assessed as unseated. The owner had notice of the assessment, and the question before the court for consideration on the case stated was whether or not the coal underlying the surface of the 75 acres could be assessed separately from the overlying surface. The court held that the assessment of the mineral under the adjoining 75 acres separately from the surface thereof was proper.</p> <p>In the case at bar, in all of the conveyances following the deed to John Holsopple, the tract was described as an entire tract of 245 acres, excepting and reserving the said surface rights of John Holsopple in the 192 acres. There being no severance made by any conveyance, the law would not work a severance for the purposes of taxation. At least, there would be no such severance as to make the minerals underlying the Holsopple tract unseated; for they remained and continued to be part and parcel of one entire tract or body of land. In the case of Logan v. Washington County, the assessment was with notice to the owner. In the case under consideration there was no notice to the owners, and the assessment was made in the name of one of the predecessors in title to the plaintiffs. We are not satisfied that the case cited supports the contention of the defendants.</p> <p>Counsel for the defendants upon the trial asked how the minerals underlying the Holsopple tract could be assessed at all, unless assessed separately from the 53-acre part of the tract. We see no difficulty in the way of making an assessment of the minerals and the 53-acre part of the tract together, in one body. In fixing the basis for an assessment, it is usual, and not improper, for the assessor to place a separate valuation on the buildings on a lot or a piece of land and a separate valuation on the land or soil itself, and to add the two valuations together, so as to make one entire valuation, as the basis of an assessment upon the particular property as a whole. Following the same practice, the 245-acre tract of land could be itemized as 53 acres of surface and 245 acres of minerals; so much on the surface, and so much on the minerals; and adding the two amounts together, as the basis for the assessment of the whole property.</p> <p>Upon an examination of the whole record, we do not feel satisfied that we should sustain any of the positions taken by counsel in the motion for a new trial. Having reached this conclusion, the motion for judgment non obstante veredicto, as well as the motion for a new trial, should be overruled.</p> <p>Error assigned, among others, was (17) in refusing to enter judgment in favor of defendants non obstante veredicto.</p> <p>— The plaintiffs not being in actual possession of the mineral land in controversy and the defendants claiming under a tax title, it is submitted that this proceeding to determine title thereto under the Act of June 10, 1893, P. L. 415, cannot be sustained: Dull v. Ahls, 14 Pa. C. C. R. 350; Hilborn v. Wilson, 17 Pa. C. C. R. 346; Delaware & Hudson Canal Co. v. Genet, 169 Pa. 343; Ullom v. Hughes, 204 Pa. 305.</p> <p>The conveyance of part of a tract of land, with a reservation of the minerals thereunder, severs both surface and minerals from the residue for the purpose of taxation.</p> <p>— The Act of June 10, 1893, is remedial in its nature and to be liberally construed, and the appellees’ petition was under the verbatim terms of the act, asserting right title and right of possession and asserting defendants’ denial of right of possession and title: Ullom v. Hughes, 204 Pa. 305; Smith v. Hibbs, 213 Pa. 202; Fearl v. Johnstown, 216 Pa. 205.</p> <p>The seating of part of a tract of land renders the whole tract seated to its furthest boundary: Sheaifer v. McKabe, 2 Watts 421; Fish v. Brown, 5 Watts, 441; Ellis v. Hall, 19 Pa. 292; Jackson v. Sassaman, 29 Pa. 106; Alternóse v. Hufsmith, 45 Pa. 121.</p> <p>The assessing officer must assess lands in entire or single tracts according to their ownership and has no right to make divisions or partitions that are not made by the owner: Beading v. Finney, 73 Pa. 467; Brown v. Hays, 66 Pa. 229; Williston v. Colkett, 9 Pa. 38; Wilmoth v. Canfield, 76 Pa. 150.</p>

<p>Appeal, No. 205, Oct. T., 1912, by plaintiff, from order of O. P. Somerset Co., Sept. T., 1912, No. 296, making absolute rule to open judgment in case of Simon P. Sweitzer y. Timothy J. Crowley and Emil Lipscher.</p> <p>Buie to open judgment. Before Euppel, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in making absolute rule to open judgment.</p>

Appeal, No. 210, Oct. T., 1912, by plaintiff, from judgment of C. P. Somerset Co., Sept. T., 1910, No. 12, discharging motion to treble damages in case of Alexander Rhoads v. Quemahoning Coal Company. Trespass to recover treble damages for coal mined, removed and converted by the defendant. Before Inghram, P. J., specially presiding. The opinion of the Supreme Court states the case.

<p>Appeal, No. 1, Oct. T., 1912, by defendant, from judgment of O. P. Venango County, April T., 1909, No. 32, on verdict for plaintiff in case of Tbe Stoneboro and Chautauqua Lake Ice Company v. Tbe Lake Shore and Michigan Southern Railway Company.</p> <p>Trespass for damage to real property. Before Criswell, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $16,477 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among'others, was (1) in refusing binding instructions for the defendant.</p> <p>— A railroad company may not contract against its own negligence in its operations within its own right of way where such negligence results in the destruction of property of the public lawfully located outside its right of way: Lackawanna & Bloomsburg R. R. Co. v. Doak, 52 Pa. 379; Prankford & Bristol Turnpike Co. v. Philadelphia & Trenton R. R. Co., 54 Pa. 345; Philadelphia & Reading R. R. Co. v. Yerger, 73 Pa. 121; Penna. R. R. Co. v. Stranahan, 79 Pa. 405; Confer v. R. R. Co., 146 Pa. 31; Camden & Amboy R. Co. v. Baldauf, 16 Pa. 77; Hunt v. Knickerbocker, 5 Johns. (N. Y.) 327.</p>

<p>Appeal, No. 4, Oct. T., 1912, by defendant, from judgment of O. P. Yenango Co., Jan. T., 1911, No. 3, on verdict for plaintiff, in' tbe case of Charles A. Steele v. The Lake Shore, and Michigan Southern Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Criswell, P. J.</p> <p>It appeared by the evidence in this case that at the point where the accident occurred, the defendant railway company maintained three tracks, one being a sidetrack used for the storage of cars; that there were two permissive crossings, one crossing the tracks at the foot of a set of steps constructed for the convenience of the employees of the plant at which the plaintiff was employed, and another 150 feet to the west; and also that the public were accustomed to cross the tracks at a point about midway between the two crossings when standing cars obstructed the first crossing; that there was a distinctly marked path along the side of the track and another path, broader and less distinctly marked, across the tracks at this intermediate point, the exact place at which the crossing was affected depending upon how far west the cars extended. It was at this intermediate point that the plaintiff was run down while attempting to cross the track around the end of a standing train. The plaintiff was knocked down by the unexpected starting of the train, thrown under the wheels and his arm injured, which injury was increased by another movement of the train before he was able to extricate himself. The plaintiff sought to recover damages for both the negligent starting of the train, alleged to have been the cause of his being caught, and also for the subsequent motion of the car, which increased the seriousness of the accident.</p> <p>The jury found a verdict for $14,000 in favor of the plaintiff, which was reduced by the court to $8,500 and judgment entered thereon. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment non obstante veredicto.</p> <p>— The plaintiff was a trespasser upon the defendant’s right of way: Leithold v. Ry. Co., 47 Pa. Superior Ct. 137; Taylor v. D. & H. Canal Co., 113 Pa. 162; R. R. Co. v. Norton, 24 Pa. 465; Philadelphia & Reading R. R. Co. v. Hummell, 44 Pa. 375; Cauley v. Ry. Co., 95 Pa. 398; Moore v. R. R. Co., 99 Pa. 301; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Welsh v. R. R. Co., 181 Pa. 461; Brague v. Ry. Co., 192 Pa. 242.</p> <p>The plaintiff failed to establish that the defendant’s employees having it within their power to have prevented the car from being moved after the plaintiff was caught knew of his perilous position, and notwithstanding such knowledge neglected to prevent his further injury : Moore v. R. R. Co., 108 Pa. 349; Penna. R. R. Co. v. Morgan, 82 Pa. 134.</p> <p>The plaintiff was guilty of contributory negligence: Penna. R. R. Co. v. Bell, 122 Pa. 58; B. & O. R. R. Co. v. Schwindling, 101 Pa. 258; Carroll v. P. R. Co., 12 W. N. C. 348; Beynon v. Penna. R. R. Co., 168 Pa. 642; Hovenden v. Penna. R. R. Co., 180 Pa. 244; Haynes v. Penfield, 231 Pa. 329.</p> <p>— The principle of a “permissive crossing” is not necessarily and exclusively determined by mere marks or tbe absence of marks on tbe ground nor by the variation of a few feet either way: Kay v. R. R. Co., 65 Pa. 269.</p> <p>Where a railroad company has for years without objection permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care towards those using the crossing: B. & O. R. R. Co. .v. Schwindling, 101 Pa. 258; Taylor v. Delaware & Hudson Canal Co., 113 Pa. 162; Philadelphia and Reading R. R. Co. v. Troutman, 11 W. N. C. 453.</p> <p>The evidence fairly warranted the conclusion that after the plaintiff had been helplessly pinioned under the rear car and while in that position the defendant, notwithstanding it had due notice of his dilemma in time to prevent a further movement of its cars against him, heedlessly backed them against him a second time.</p>

<p>Appeal, No. 176, Oct. T., 1912, by plaintiffs, from judgment of O. P. Venango Co., Jan. T., 1910, No. 28, on verdict for defendant non obstante veredicto in case of James Preston and Frank W. Redfield v. South Penn Oil Company, a corporation, O. D. Harrington, Judson A. Harrington, John J. Harrington, W. O. Harrington and F. C. Harrington.</p> <p>Ejectment for tract of land in Oil Creek Township. Before Prather, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering judgment for the defendant non obstante veredicto.</p>

<p>Appeal, No. 76, Oct. T., 1912, by Hannah A. McQuiston, from decree of O. P. Armstrong Co., June T., 1891, No. 19, dismissing petition to revoke decree of adoption of Harry Bitchey Mc-Quiston.</p> <p>Petition for the revocation of a decree of adoption. Before Patton, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in refusing to revoke the decree of adoption.</p> <p>— The record of adoption discloses the lack of jurisdictional essentials required by the Act of 1855, as amended, and that the decree is without jurisdiction and, therefore, void: Torrance v. Torrance, 53 Pa. 505; Bennett v. Hayden, 145 Pa. 586.</p> <p>The provision of the Act of 1855 that the petitioner may present his petition to the court of any county of which he may be a resident is a privilege conferred upon the party applying for adoption of a child and is waived by submitting himself to the jurisdiction of any court having general jurisdiction of the subject matter: Nagle v. Nagle, 3 Grant (Pa.) 155; Putney v. Cathers, 8 Pitts. Leg. J. 171; Brown v. Webber, 60 Mass. 560; Cleveland v. Welsh, 4 Mass. 591.</p>

<p>Appeal, No. 198, Oct. T., 1912, by Hannah A. McQuiston, widow, from decree of O. C. Venango Co., No. 58, Jan. T., 1911, sustaining exceptions to auditor’s report in the estate of Cyrus E. McQuiston, deceased.</p> <p>Exceptions to auditor’s report sustaining exceptions filed to a widow’s appraisement. Before Criswell, P. J.</p> <p>The decedent, Cyrus E. McQuiston, married Hannah A. McQuiston in 1870 and from that time until his death in 1911, made his permanent residence in Scrub-grass Township, Venango County, Pennsylvania. No children were born to their marriage. In 1891, McQuiston filed a sworn petition under the Act of May 4, 1855, P. L. 430, as amended, to the Common Pleas of Armstrong County for the adoption of a four year old boy who had become a public charge of Pinegrove Township, Armstrong County. The overseers of the poor of that township joined in the petition and the formal adoption decree was entered.</p> <p>The estate of decedent consisted of a homestead and personalty appraised respectively at $5,000.00 and $2,000.00. After the death of Cyrus E. McQuiston, his widow, Hannah A. McQuiston, claimed the homestead as her widow’s exemption under the Act of April 1,1909, P. L. 87, to which Harry Bitehey McQuiston, the adopted, son, filed exceptions. Thomas McGough, Esq., was appointed auditor and after hearing sustained the exceptions, his report being subsequently confirmed.</p> <p>For further facts see McQuiston’s Adoption, 238 Pa. 304.</p> <p>Errors assigned were (1-7) in dismissing various exceptions to auditor’s report.</p>

Appeal, No. 206, Oct. T., 1912, by plaintiff, from judgment of O. P. Venango Co., January T., 1910, No. 36, on verdict for defendant by direction in case of George Bradley, Jr., v. Lake Shore and Michigan Southern Railway Company. Trespass to recover damages for personal injuries. Before Criswell, P. J. The facts appear by the opinion of the Supreme Court. The Court gave binding instructions for the defendant.

Appeal, No. 14, Oct. T., 1912, by plaintiffs, from judgment of C. P. No. 3, Allegheny County, May T., 1906, No. 188, on verdict for defendant in case of Charles Illig, et al., v. Monongahela Natural Gas Co. Assumpsit to recover rental under oil and gas lease. Before Evans, J. The facts sufficiently appear in the opinion of the Supreme Court. Verdict and judgment for defendant. Plaintiffs appealed.

<p>Appeal, No. 16, Oct. T., 1912, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., August T., 1906, No. 807, on verdict for defendant, in case of Elmira C. Krall v. George L. Krall.</p> <p>Ejectment for a lot of ground in the eleventh ward of the City of Allegheny. Before Kennedy, P. J.</p> <p>Verdict and judgment for the defendant. Plaintiff appealed.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Error assigned, among others, was to the charge of the court as set forth in the opinion.</p>

<p>Appeals, No. 19 and 20, Oct. T., 1912, by defendant, from judgments of C. P. No. 4, Allegheny Co., No. 585, Fourth Term 1908, for plaintiffs in case of Emma E. Underwood and Emma E. Underwood, Administratrix c. t. a. of the Estate of James Underwood, her husband, v. Pittsburgh Railways Com-party.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict and judgment for Emma E. Underwood for $2,500.00 and for the estate of James Underwood for $760.00. Defendant appealed.</p> <p>Error assigned, among others, was the refusal of defendant’s motion for judgment non obstante veredicto.</p> <p>cited on the question of warning: Anspach v. Philadelphia & Reading Ry. Co., 225 Pa. 528; Dennison v. North Penn Iron Co., 22 Pa. Superior Ct. 219; Osterheldt v. Peoples, 208 Pa. 310; Harris v. Commercial Ice Co., 153 Pa. 278.</p>

<p>Inquest of lunacy — Findings of commissioner and jury — Exceptions — Interlocutory order — Appeals.</p> <p>1. The decree of the court in a lunacy proceeding, sustaining respondent’s exceptions to findings made by the commissioner and jury, and setting aside the report and referring the matter back to the commissioner and jury with instructions to rehear the case,, is interlocutory only and no appeal therefrom lies to the Supreme Court.</p> <p>Practice — Exceptions—Act of May 11, 1911, P. L. ÍH9 — Interlocutory orders.</p> <p>2. The Act of May 11, 1911, P. L. 279, providing “whensoever the decision of a court of record shall appear in the proceedings of a case, it shall not be necessary, for the purpose of a review of that decision, to take any exception thereto; but the case shall be heard by the appellate court with the same effect as if an exception had been duly written out, signed and sealed by the court,” has no application to interlocutory orders.</p>

<p>Appeal, No. 47, Oct. T., 1912, by defendants, from order of C. P. No. 3, Allegheny County, Nov. T., 1911, No. 55, discharging rule to open judgment in the case of Lizzie Schnebel v. Robert Nelson and A. Hamburger.</p> <p>Rule to open judgment.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was the order of the court discharging the rule.</p> <p>— The evidence was sufficient to justify the court in opening the judgment: Knarr v. Elgren, 19 W. N. 531; Kneedler’s App., 92 Pa. 428; JenMntown Nat. Bank’s Appeal, 124 Pa. 337; Com. v. Mellet, 196 Pa. 243.</p>

<p>Negligence — Street railways — Passenger—Tripping on platform —Act of conductor — Nvidence—Nonsuit.</p> <p>In an action against a street railway company to recover damages for personal injuries alleged to have been suffered by a passenger by reason of the negligent act of the conductor of one of defendant’s cars in tripping her with his foot when she was about to leave the car, a nonsuit should be granted where the evidence went no further than to show that plaintiff had tripped over the conductor’s foot, without explaining how the accident happened, or establishing any negligence on the part of the conductor.</p>

<p>Appeal, No. 93, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., May T., 1909, No. 882, on verdict for plaintiff in case of Belle A. Pugh v. The Borough of Springdale.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for plaintiff for $2,623. A motion for judgment n. o. v. was subsequently overruled. Defendant appealed.</p> <p>Error assigned was in overruling the motion for judgment for defendant n. o. v.</p> <p>— The case, should have been withdrawn from the jury: Reed v. Tarentum Borough, 213 Pa. 357; King v. Thompson, 87 Pa. 365; Horner v. Philadelphia, 194 Pa. .542; Wright v. Lancaster, 203 Pa. 276; Mason v. Philadelphia, 205 Pa. 177; Beck v. Germantown Cricket Club, 37 Pa. Superior Ct. 521; Kelchner v. Nanticoke Borough, 209 Pa. 412; Clifton v. Philadelphia, 217 Pa. 102.</p>

<p>Appeal, No. 104, Oct. T., 1912, by plaintiff, from judgment of O. P. Allegheny Co., Third T., 1907, No. 515, on verdict for defendant in case of Joseph Munkkonen v. John Trevaskis.</p> <p>Trespass to recover damages for criminal conversation.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned, was the action of the court in excluding the testimony of the plaintiff.</p>

<p>Negligence — Master and servant — Guarding machinery — Flywheel — Contributory negligence — Act of May 2, 1905, P. L. 852— Case for jury.</p> <p>1. In an action against an employer to recover damages for the death of plaintiff’s husband by reason of his being caught in a revolving fly-wheel in defendant’s ice plant the case is for the jury and a verdict for the plaintiff will he sustained where the evidence, though in conflict, justifies a finding that the wheel in which the deceased was injured was not properly guarded; that he was at the time of the accident in the course of his employment; and it does not appear that he was guilty of contributory negligence.</p> <p>2. In such a case it is for the jury to determine whether or not an artificial guard for the fly-wheel was required under the provisions of the Act of May 2, 1905, P. L. 352, for the protection of employees.</p>

Appeal, No. 106, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny County, Dec. T., 1908, No. 142, on verdict for plaintiff in case of Margaret Ake v. City of Pittsburgh. Trespass to recover damages for personal injuries causing the death of plaintiff’s husband. Before Davis, J. The opinion of the. Supreme Court states the facts.

<p>Evidence — Testimony—Property values — Eminent domain— Boroughs — Damages—Opinion as to value — Cross examination— Irrelevant facts.</p> <p>1. In a proceeding to recover damages for property taken by a borough for a public street under the power of eminent domain, a witness who testifies that he had resided in the particular county for twenty-nine years; had known the property in question all his life and managed it for a time; that he was familiar with the property and other properties in the same neighborhood, some of which he had sold and that he had a general, knowledge of the values of real estate in the neighborhood, is competent to testify, as to the before and after values of the property taken.</p> <p>2. Where in such a case a witness for the defendant has given his opinion as to the value, it is error for the court to allow the. plaintiff on cross examination to require him to state a higher value which he had given in testifying in court to another property which was so- unlike plaintiff’s and situated at such a distance therefrom that its value was not a relevant fact.</p> <p>Eminent domain — Opening of streets — Damages for delay— Charge.</p> <p>3. While a plaintiff is entitled to recover compensation for delay to which she has been unreasonably subjected in recovering damages for the taking of her property in the opening of a street, it is error for the court to instruct the jury that such damages can be recovered where there is no evidence that there was any unreasonable delay, and particularly to instruct the jury that “there has been no evidence of that fact except so far as the argument of counsel is concerned.” The jury, under this instruction, might have understood that they could consider the argument of counsel without evidence.</p>

Appeal, No. 17, Oct. T., 1912, by plaintiff, from the order of C. P., No. 4, Allegheny Co., Third T., 1911, No. 261, overruling demurrer to return to writ of alternative mandamus, in the case of Walter R. Black, Chief Probation Officer of Allegheny County, v. E. T. Graham, George H. Fuchs, W. W. Hays, William McMurtrie, W. B. Lancaster, and John Mitchell, constituting the Board of School Directors of Glenfield Borough. Demurrer to return to writ of alternative mandamus.

<p>Appeal, No. 32, Oct. T., 1912, by defendant, from decree of O. P., No. 4, Allegheny Co., First T., 1911, No. 24, awarding injunction in case of The Borough of Bellevue, The Bellevue Presbyterian Church, The Bellevue United Presbyterian Church, The Church of the Assumption of Bellevue, The Methodist Protestant Church of Bellevue, The African Methodist Episcopal Church of Bellevue, The First Baptist Church of Bellevue, The Christian Church of Bellevue, The Church of the Epiphany of Bellevue and The Bellevue Emanuel Lutheran Church v. The Manufacturers’ Light & Heat Company.</p> <p>Bill in equity to compel defendant to furnish gas. Before Swearingen, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned, among others, was the decree awarding the injunction.</p> <p>The ordinance is void as against, public policy and because the grant of franchise was made to a partnership: West Chester Borough v. Tel. Cable Co., 227 Pa. 384; Millerstown Borough v. Bell, 123 Pa. 151; Penna. R. R. Co.’s Case, 213 Pa. 373; Ransberry v. Keller, 9 Pa. C. C. R. 299; Gustafson v. Hamm, 56 Minn. 334 (57 N. W. Repr. 1054); Mikesell v. Durkee, 34 Kan. 509 (9 Pac. Repr. 278); Glsessner v. Brewing Assn., 100 Mo. 508 (13 S. W. Repr. 707); State v. Trenton, 36 N. J. Law 79; Potter v. Collis, 156 N. Y. 16 (50 N. E. Repr. 413); Grand Rapids v. Railroad Co., 66 Mich. 42 (33 N. W. Repr. 15); Adams v. Ohio Palls Car Co., 131 Ind. 375 (31 N. E. Repr. 57); Natural Gas Act of May 29, 1885, P. L. 29.</p> <p>— The ordinance is valid: Sandy Lake Borough v. Gas Company, 16 Pa. Superior Ct. 234; Freeport Boro. School District v. Enterprise Natural Gas Co., 18 Pa. Superior Ct. 73; Sewickley Boro. School District v. Ohio Valley Gas Co., 154 Pa. 539; Wood v. McGrath, 150 Pa. 451; Smith v. Simmons, 103 Pa. 32; Susquehanna Borough Depot v. Simmons, 112 Pa. 384; Freeport Water Works Co. v. Prager, 129 Pa. 605; Livingston v. Wolf, 136 Pa. 519; MeDevitt v. Gas Company, 160 Pa. 367; State v. Murphy, 134 Mo. 548 (31 S, W. Repr. 784; 34 S. W. Repr. 51; 35 S. W. Repr. 1132); Mc-Wethy v. Aurora Electric Light & Power Co., 202 111. 218 (67 N. E. Repr. 9); St. Louis v. Western Union Telegraph Co., 149 U. S. 465 (13 Sup. Ct. Repr. 990); Schopp v. St. Louis, 117 Mo. 131 (22 S. W. Repr. 898).; Owensboro v. Cumberland Telephone & Telegraph Co., 174 Fed. Repr. 739.</p> <p>Having accepted the benefit of the contract, appellant is in any case estopped to deny the power of the borough to make it: Sandy Lake Borough v. Gas Company, 16 Pa. Superior Ct. 234; New York v. Sonneborn, 113 N. Y. 423 (21 N. E. Repr. 121); Buffalo v. Balcom, 134 N. Y. 532 (32 N. E. Repr. 7); St. Louis v. Davidson, 102 Mo. 149 (14 S. W. Repr. 825) ; Jersey City v. North Jersey Street Ry. Co., 72 N. J. Law 383 (61 Atl. Repr. 95).</p> <p>The requirement that appellant furnish free gas to churches is valid: Monongahela River Consol. Coal & Coke Co. v. Jutte, 210 Pa. 288; Zeisweiss v. James, 63 Pa. 465; St. Patrick’s Church Society v. Heermans, 68 N. Y. Misc. 487; M. E. Church & Society v. Ashtabula Water Co., 20 Ohio Circuit Court Rep. 578; Le Mars Independent School District v. Le Mars City Water & Light Co., 131 Iowa 14 (107 N. W. Repr. 944); Henderson Water Co. v. Trustees of Henderson Graded Schools, 151 N. C. 171 (65 S. E. Repr. 927).</p> <p>When the consent of a borough is necessary to enable streets to be used, it may impose any conditions upon the use thereof which are not prohibited by its charter and are not immoral: Allegheny v. Street Railway Co., 159 Pa. 411; Allegheny v. Gas & Pipeage Co., Y72 Pa. 632; Marcoz v. Wilmerding Borough, 37 Pa. Superior Ct. 185; Cochranton Borough v. Telephone Co., 41 Pa. Superior Ct. 146; West Chester Borough v. Tel. Cable Co., 227 Pa. 384; Plymouth Township v. Chestnut Hill & Norristown Ry. Co., 168 Pa. 181; Minersville Boro. v. Railway Company, 205 Pa. 394; McKeesport v. Pittsburgh, McKeesport, Etc., Ry. Co., 213 Pa. 542; Muncy Electric Light, Heat & Power Co. v. People’s Electric Light, Heat & Power Co., 218 Pa. 636; Noblesville v. Noblesville Gas & Imp. Co., 157 Ind. 162 (60 N. E. Repr. 1032).</p> <p>The court was correct in excluding evidence of changed conditions: Jacksonville, Mayport, Pablo Ry. & Nav. Co. v. Hooper, 160 TJ. S. 514= (16 Sup. Ct. Repr. 379); United States v. Gleason, 175 U. S. 588; Kaufmann v. Kaufmann, 222 Pa. 58; McMillin v. Titus, 222 Pa. 500; Henderson Water Co. v. Trustees of Henderson Graded Schools, 151 N. C. 171 (65 S. E. Repr. 927); Le Mars Independent School District v. Le Mars City Water & Light Co., 131 Iowa 14 (107 N. W. Repr. 944); M. E. Church & Society v. Ashtabula Water Co., 20 Ohio Circuit Court Rep. 578.</p>

<p>Appeal, No. 21, Oct. T., 1912, by defendant, from decree of O. P., No. 1, Allegheny Co., First T., 1911, No. 12, granting an injunction in case of Borough of Glenfield, The First Presbyterian Church of Glenfield, Thorn Chapel Methodist Episcopal Church and Evangelical Lutheran Church of St. Paul, Ohio Township, Allegheny County, Pennsylvania, v. The Manufacturers’ Light & Heat Company.</p>

<p>Appeal, No. 33, Oct. T., 1912, by defendant, from decree of C. P., No. 4, Allegheny Co., Second Term, 1911, No. 56, awarding injunction in the case of The Borough of Coraopolis, The First Presbyterian Church of Coraopolis, The Second Presbyterian Church of Coraopolis, The First United Presbyterian Congregation of Coraopolis, The First Baptist Church of Coraopolis, Trustees of St. John’s Episcopal Church of Coraopolis, The Zion Lutheran Church of Coraopolis, the St. Joseph’s Roman Catholic Church of Coraopolis, The Methodist Episcopal Church of Coraopolis, The A. M. E. Zion Church of Coraopolis, The Mt. Olivet Baptist Church of Coraopolis, The Mt. Hope Baptist Church of Coraopolis v. The Manufacturers’ Light & Heat Company.</p>

<p>Appeal, No. 52, Oct. T., 1912, by plaintiff, from order of O. P. No. 3, Allegheny County, May T., 1908, No. 166, refusing to take off nonsuit in case of David Roberts v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries before Kennedy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned, among others, was the order of the court in refusing to take off the nonsuit.</p> <p>— Whether the plaintiff was guilty of contributory negligence was for the jury, in view of the long established custom of passengers alighting at that station to leave the train on the nonplatform side: Snow-den v. Warder, 3 Rawle, 101; McMasters v. Penna. R. R. Co., 69 Pa. 374; Adams v. Ins. Co., 95 Pa. 348; Philadelphia & Reading R. R. Co. v. Trontman, 11 W. N. C. 453; Taylor v. Canal Co., 113 Pa. 162; Barry v. R. R. Co., 92 N. Y. 289; Kay v. R. R. Co., 65 Pa. 269; Davis v. Ry. Co., 15 Am. & Eng. R. R. Cases 424; Margo v. R. R. Co., 213 Pa. 463; Betts v. Railroad Co., 191 Pa. 575; Boggess v. B. & O. R. R. Co., 234 Pa. 379; Bockeleamp v. R. R. Co., 232 Pa. 66.</p> <p>— Plaintiff was guilty of contributory negligence : Drake v. R. R. Co., 137 Pa. 352; Penna. R. R. Co. v. Zebe, 33 Pa. 318; Penna. R. R. Co. v. Zebe, 37 Pa. 420.</p> <p>The evidence of the custom to alight on the nonplatform side of the car should have been excluded: Drake v. R. R. Co., 137 Pa. 352; Flanagan v. Railroad Co., 181 Pa. 237.</p>

Appeal, No. 100, Oct. T., 1912, by defendant, from decree of O. P. Allegheny Co., July T., 1911, No. 758, entering judgment for plaintiff in the case of Bertha M. Amsler, surviving executor of the last will and testament of Carl Amsler, v. George W. McClure. Bill in equity praying for discovery and to recover the balance due on a contract. There being no ground for equitable jurisdiction, the case was tried as an action at law under the Act of June 7, 1907, P. L. 440.

<p>Party walls — Use—Contribution—Act of April 8,1872, P. L. 986.</p> <p>1. The Act of April 8, 1872, P. L. 986, providing that the owner of an adjoining lot cannot use a party wall by building into or against it until he shall have paid a proportionate part of the cost of the wall to the first builder, his heirs or assigns, provides for two contingencies: first, the erection of a new wall, where there was none, which cannot be used at all until payment, and, second, the erection of a new wall to replace an old one, of which no new use can be made without payment. If, however, the old wall was ¡sufficient for the old use, and the new wall is not subjected to any new use by the adjoining owner, but only to the continuance of the old use, he cannot be called upon for contribution. The statute does not make him liable until he begins to make a new use of the wall. Reasonable test of what is a new use is whether it is a use that could not have been made of the old wall.</p> <p>2. In an action to recover contribution for the cost of a party wall, defendant will not be required to contribute where it appears that plaintiff in the erection of a large building removed a party wall which was on the line between his property and defendant’s property and erected a new wall to answer the requirements of his building, that the joists of the existing building on the defendant’s lot were inserted into the new party wall the same as they had been in the old wall and that later defendants remodeled their building and made use of the party wall, it being shown by the testimony that in the remodeling of their building, the defendants made no new use of the party wall such as contemplated by the Act of April 8, 1872, P. L. 986.</p>

<p>Appeal, No. 117, Oct. T., 1912, by Grant Street Reformed Presbyterian Cburcb and Robert G. Woodside, et al., President and Members of the Board of Trustees, from decree of C. P. Allegheny Co., Third T., 1911, No. 56, setting aside election of church trustees In re Petition of James Matthews, William Moore, John A. Brownlee, Jr., W. J. Sands and Thomas Thompson.'</p> <p>Petition to set aside election of trustees of a church. Before Davis, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the decree of the court.</p> <p>— The court had no jurisdiction in this proceeding to declare the invalidity of the election: Gilroy’s Appeal, 100 Pa. 5; Com. v. McCutchen, 2 Parson 205; Updegraff v. Crane, 47 Pa. 103; Com. v. Graham, 64 Pa. 339; Jenkins v. Baxter, 160 Pa. 199; Bedford Springs Co. v. McMeen, 161 Pa. 639; Titusville Oil Exchange’s Dissolution, 2 Pa. Superior Ct. 508; Dayton v. Carter, 206 Pa. 491; Goldsworthy v. Boyle, 175 Pa. 246; Brower v. Kantner, 190 Pa. 182; Com. v. Jankovic, 216 Pa. 615.</p> <p>— The Act of April 29, 1874, P. L. 73, authorized the proceeding: Commonwealth v. Straus, 32 Pa. Superior Ct. 389.</p>

<p>Appeal, No. 129, Oct. T., 1912, by Fidelity Title and Trust Company, Administrator of the Estate of William Hale, deceased, from decree of O. C. Allegheny Co., Sept. T., 1911, No. 320, dismissing exceptions to adjudication in the Estate of Elizabeth H. Phillips, deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court dismissing the exceptions.</p> <p>— Parol evidence was admissible to show that the assignment of the policy, absolute in form, was only intended as collateral security: Leas v. James, 10 S. & R. 307; Keller v. Leib, 1 P. & W. 220; Cunningham v. Smith, 70 Pa. 450; Page v. Burnstine, 102 U. S. 664; Damron v. Penn Mutual Life Ins. Co., 99 Ind. 478.</p> <p>The assignment was void because the assignee had not an insurable interest in the life of the assignor: Downey v. Hoffer, 110 Pa. 109; Ruth v. Katterman, 112 Pa. 251; Yanormer v. Hornberger, 142 Pa. 575; Carpenter v. U. S. Life Ins. Co., 161 Pa. 9; Riner v. Riner, 166 Pa. 617; Kerr v. Lauser, 174 Pa. 608; Hendricks v. Reeves, 2 Pa. Superior Ct. 545; Sargent v. Hancock Mutual Life Ins. Co., 49 Pa. Superior Ct. 239; Taussig v. United Security Life Ins. & Trust Co., 231 Pa. 16; Mullen v. Union Central Life Ins. Co., 182 Pa. 150; Keystone Mutual Ben. Assn. v. Beaverson, 16 W. N. C. 188; Early v. Metropolitan Life Ins. Co., 10 York Legal Rec. 13; Life Ins. Clearing Co. v. O’Neill, 106 Fed. Repr. 800.</p> <p>— The assignment was absolute: Pioso v. Bitzer, 209 Pa. 503; Cunningham v. Smith, 70 Pa. 450; Phillips v. Meily, 106 Pa. 536.</p> <p>The sister had an insurable interest: Warnock v. Davis, 104 U. S. 775; ¿Etna Life Insurance Co. v. France, 94 U. S. 561; United Brethren Mutual Aid Society v. McDonald, 122 Pa. 324; Morgan v. Segenfelter, 32 Ky. Law Bepr. 225,14 L. B. A. (N. S.) 1172; Early v. Metropolitan Life Ins. Co., 10 York Leg. Bee. 13; Provident Life Ins. & Inv. Co. v. Baum, 29 Ind. 236; Lord v. Dali, 12 Mass. 115; Campbell v. Ins. Co., 98 Mass. 381; Goodwin v. Ins. Co., 73 N. Y. 480; Trenton Mut. Life & Fire Ins. Co. v. Johnson, 24 N. J. L. 576; Hosmer v. Welch, 107 Mich. 470 (65 N. W. Bepr. 280; 67 N. W. Bepr. 504); Beynolds v. Prudential Ins. Co., 88 Mo. App. 679; Equitable Life Ins. Co. v. Hazelwood, 75 Texas, 338 (12 S. W. Bepr. 621) ; Supreme Assembly, Etc., v. Adams, 107 Fed. Bepr. 335; Ingersoll v. Knights of G. B., 47 Fed. Bepr. 272.</p> <p>The burden was on the claimant to show that there was no insurable interest: Lenig v. Eisenhart, 127 Pa. 59.</p>

<p>Appeal, No. 50, Oct. T., 1912, by Jean G. Crider, et al., from the decree of O. C. Allegheny Co., Feb. T., 1893, No. 1, in partition, opening proceedings in partition and setting aside former decree in estate of Robert Swan, deceased.</p> <p>Proceedings in partition. Before Hawkins, J.</p> <p>From the record it appeared that testator died in 1878, leaving to survive him five living children and three grandchildren, the issue of deceased children. By his will he provided inter alia as follows:</p> <p>First. I will bequeath and devise to my wife Grizella Swan for and during her natural life the farm or homestead and land appurtenant together with all the buildings erected thereon, on which I now reside, together with all the grain, stock, farming utensils, household furniture, kitchen utensils, etc.</p> <p>Also the sum of one thousand dollars for and each year of her natural life and to be paid to her semi-annually.</p> <p>8. It is my will and I hereby direct that all my land situate in Ross Township shall as soon after the decease of my wife as it can be done, divide the same equally between my said five children share and share alike; and if any of my five children should die before the death of my wife leaving no issue then their share to be equally divided between my remaining children.</p> <p>9. After my debts, funeral expenses, etc., are all fully paid, then I will and bequeath all my personal property not already disposed of in this my will, consisting of stocks, bonds, rents, uncollected balances on sales of real estate to my five children share and share alike— and if any of my said children shall die before this distribution is made leaving no issue then such share shall be divided between my children surviving.</p> <p>10. If any interest that I may have in the Green Tree farm remains unsold at my death I hereby authorize and empower my executor to join in the sale of any such land unsold, giving my said executor full power and authority to join in making deed or deeds for the same.</p> <p>And lastly I hereby nominate, constitute and appoint my son, John Swan, and William Lyons, both of Allegheny, my true and lawful executors to carry out this my last will and testament revoking any former will by me made. And I also constitute and appoint my son, John, trustee of all the estate willed to my son James, he to have control over the same, to disburse it as the said James shall need or require it.</p> <p>And by his codicil as follows:</p> <p>I revoke and annul the devise and bequest made in my said will to my son John, and instead and in lieu thereof I do give, devise and bequeath all and whatever property is in said will devised to or for my son John, to Campbell B. Herron, his heirs and assigns in trust to hold the same for my son John Swan for and during the term of his natural life. The said Campbell B. Herron, his heirs and assigns to receive and collect the rents, issue and profits thereof and pay the same over from time to time to my said son John or to allow my said son to himself collect the same, and at the discretion of said trustee to pay or hand over to my said son John all or any part of any personal property taken by said trustee under this codicil, and said trustee to invest the proceeds of any real estate received by him under this codicil, and to pay over the income thereof as hereinabove provided, or at his discretion to permit said proceeds to be invested by my said son John and the income thereof to be collected by him; and on the death of my said son John Swan, the said Campbell B. Herron, his heirs and assigns to hold all of the property taker under this codicil in trust as aforesaid, in trust for the heirs of my said son John and their heirs and assigns forever; provided, that should Annie M., wife of my son John survive him she shall take the same interest in said trust estate as she would have taken in case the same had been devised and bequeathed to my son John absolutely and in fee simple. And no part of said property devised and bequeathed as aforesaid in trust for the benefit of my son John shall be in any manner liable or subject to the payment of any of his debts. Except such as may be due me or my estate.</p> <p>Testator owned certain lots in the City of Allegheny which were not mentioned in the will, and an undivided one-fourth interest in the Green Tree farm mentioned in paragraph ten of the will. The power of the executors to join with decedent’s cotenant in making sale of portions of the Green Tree farm under the power given in paragraph ten of the will was upheld in Swan v. Covert, 138 Pa. 306.</p> <p>A considerable portion of the said land, however, had not been sold when in 1893 proceedings were instituted by two of decedent’s children for partition of certain realty, to which they were entitled, and also for the partition of the portion of the Green Tree farm remaining unsold, and the lots in the City of Allegheny not mentioned in the will. The grandchildren of the decedent were not made parties to the proceeding, nor were they notified thereof. In 1910 petitions to intervene were filed on behalf of the grandchildren, praying that the decree of partition which was made in 1893 might be opened so far as it related to the Green Tree property and the lots above mentioned in the City of Pittsburgh. The real estate in question was substantially in the same condition it was at the death of the decedent, without additional improvements. The court granted the petition to intervene and decreed that the proceedings in partition should be opened and the decree set aside ; that the Green Tree land and the lots in the City of Allegheny above mentioned should be stricken out of the record in said partition proceedings, and that the next of kin should have leave to make application for partition of the said realty; that the devisees of the other realty covered by the partition proceedings should have leave to make application to readjust the said realty between themselves. The children of decedent and those claiming under them appealed.</p> <p>Error assigned was the decree of the court.</p> <p>— The gift of the residuary estate to the five living children included all of the real estate: Jacobs’s Estate, 140 Pa. 268; Swan v. Covert, 138 Pa. 306.</p> <p>Petitioners should not have been allowed to intervene; they should have established their title by an action at law: Small’s App., 23 W. N. C. 20; Perrine v. Kohr, 20 Pa. Superior Ct. 36; Perrine v. Kohr, 205 Pa. 602; McMasters v. Carothers, 1 Pa. 324; Eell’s Est., 6 Pa. 457; Welch’s App., 126 Pa. 297.</p> <p>—Testator died intestate as to the property in question: Swan v. Covert, 138 Pa. 306; Chew v. Nieklin, 45 Pa. 84; Darlington v. Darlington, 160 Pa. 65; Cooper’s Est., 206 Pa. 628; Thompson’s Est., 229 Pa. 542; Hoffner v. Wynkoop, 97 Pa. 130; Bruckman’s Est., 195 Pa. 363.</p> <p>Appellees are not estopped nor are they barred by the statute of limitations: Stahl’s Est., 25 Pa. Superior Ct. 402; Waters’s App., 35 Pa. 523; Hays v. Heidelberg, 9 Pa. 203; Schwab v. Edge, 214 Pa. 607; Heath v. Page, 48 Pa. 130; Denis’s Est., 169 Pa. 493; Roney’s Est., 227 Pa. 127.</p> <p>The court had jurisdiction of the proceedings: Milne’s App., 99 Pa. 483; George’s App., 12 Pa. 260; Johnson’s App., 114 Pa. 132; Kimmel’s Est., 226 Pa. 47; Welch’s App., 126 Pa. 297; Bishop’s Est., 200 Pa. 598; Mc-Corkle’s Est., 184 Pa. 626; Wistar’s App., 115 Pa. 241.</p> <p>— Testator died intestate as to the real estate in question: Chew v. Nieklin, 45 Pa. 84; Darlington v. Darlington, 160 Pa. 65; Cooper’s Est., 206 Pa. 628; Bruckman’s Est., 195 Pa. 363; Thompson’s Est., 229 Pa. 542; Kimmel’s Est., 226 Pa. 47; Long v. Hill, 29 Pa. Superior Ct. 606; Hoffner v. Wynkopp, 97 Pa. 130.</p> <p>The original partition proceedings were void because the court had not jurisdiction over all the parties interested : Walton v. Willis, 1 Dallas 351; Act of April 14, 1835, P. L. 275; Act of April 25, 1850, P. L. 569; Act of May 9, 1889, P. L. 146; Richards v. Rote, 68 Pa. 248; Perrine v. Kohr, 20 Pa. Superior Ct. 36; Slayman v. Clark, 15 Pa. Superior Ct. 591; Reid v. Clendenning, 193 Pa. 406; Kimmel’s Est., 226 Pa. 47; Blackwell v. Cameron, 46 Pa. 236; Thompson v. Stitt, 56 Pa. 156; Stewart v. Miller, 4 W. N. C. 552.</p> <p>The court had jurisdiction to vacate the decree: George’s App., 12 Pa. 260; Holmes v. Fulton, 193 Pa. 270; Wistar’s Est., 18 Phila. 80; Wistar’s App., 115 Pa. 241; Pitzer’s Est., 24 Pa. C. C. R. 359; Klingensmith’s Est., 130 Pa. 516.</p> <p>The statute of limitations was not a bar: Denis’s Est., 169 Pa. 493; Stull v. Stull, 197 Pa. 243; Tulloch v. Worrall, 49 Pa. 133; Yelott v. Lewis, 102 Pa. 326; Morris v. Venderen, 1 Dallas 64; Rohrbach v. Sanders, 212 Pa. 636; Peppard v. Deal, 9 Pa. 140; Marple v. Myers, 12 Pa. 122. .</p> <p>There was no estoppel: Com. v. Moltz, 10 Pa. 527; Cambria Iron Co. v. Tomb, 48 Pa. 387; Schwab v. Edge, 214 Pa. 607; Newman v. Edwards, 34 Pa. 32; Perrine v. Kohr, 205 Pa. 602; Slayman v. Clark, 15 Pa. Superior Ot. 591; Kimmel’s Est., 226 Pa. 47; Brandmeier v. Coal Co., 219 Pa. 19; George’s App., 12 Pa. 260; Roney’s Est., 227 Pa. 127; Stahl’s Est., 25 Pa. Superior Ct. 402; Grim’s App., 109 Pa. 391; Yetter’s Est., 160 Pa. 506.</p>

<p>Appeal, No. 123, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., March T., 1908, No. 69, on verdict for plaintiff in case of William J. Thubron v. Dravo Contracting Company.</p> <p>The facts aré stated in the opinion of the Supreme Court.</p> <p>Verdict and judgment for plaintiff for $2,000. Defendant appealed.</p> <p>Error assigned, inter alia, was the refusal of binding instructions for the defendant.</p> <p>— The failure to erect a barrier at the bridge was not the proximate cause of the accident: Schaeffer v. Jackson Twp., 150 Pa. 145; Card v. Columbia Twp., 191 Pa. 254; Nichols v. Pittsfield Twp., 209 Pa. 240.</p> <p>— The case was for the jury: Boone v. East Norwegian Township, 192 Pa. 206; West Mahanoy Township v. Watson, 116 Pa. 344.</p>

<p>Appeal, No. 135, Oct. T., 1912, by plaintiff, from decree' of C. P. No. 3, Allegheny County, Nov. T., 1911, No. 598, sustaining demurrer to bill in equity in ease of Anna M. Kemmler, Executrix of William Kemmler, Jr., deceased, v. Thomas McGovern and Mary S. McGovern, his wife.</p> <p>Bill in equity to set aside a conveyance.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court sustaining demurrer to bill.</p> <p>— The court had jurisdiction: Orr v. Peters, 197 Pa. 606; Houseman v. Grossman, 177 Pa. 453; People’s Nat. Bank v. Loeffert, 184 Pa. 164.</p> <p>— There was an adequate remedy at law: A'rtman v. Giles, 155 Pa. 409; Kelly v. Herb, 157 Pa. 41; Hyde v. Baker, 212 Pa. 224.</p>

<p>Appeal, No. 137, Óct. T., 1912, by plaintiffs, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1911, No. 298, dismissing bill in equity in the case of Harriet Artis and John Artis, her husband, v. Carrie L. H. Gerst, widow, otherwise known as Caroline L. H. Gerst, and W. J. Morris, Constable.</p> <p>Bill in equity to compel specific performance of contract by vendor.</p> <p>The lower court found as a fact that the plaintiffs had failed to comply with the terms of the contract and dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned, inter alia, was in dismissing the bill.</p>

<p>Appeal, No. 53, Oct. T., 1912, by defendants from decree of C. P. No. 2, Allegheny Co., Oct. T., 1910, No. 221, awarding an injunction in the case of The Polish Falcons’ Gymnastic and Literary Association, a corporation; Stanislaus Gawronski, President; Frank Buba.cz, Vice President; Matthew Budzynski, Corresponding Secretary; Frank Majchrzak, Financial Secretary; Anton Derringer, Treasurer; John Kwapiszewski, Frank Geppert and Frank Posluszny, Trustees; and Stanislaus Letki, Instructor; Frank Lieder, Stephen Korsak and Joseph Wroblewski, in behalf of themselves and all others interested, v. Frank X. Knbiak, S. S. Jasinski, T. A. Starzynski, Frank Szybatka, Ludwig Haduch, Andrew Curzytek, Ksawery Jurewicz, B. W. Woshner.</p> <p>Bill in equity for an injunction. Before Shaker, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court ordered an injunction restraining defendants from appropriating the funds and personal property of the plaintiff association. Defendants appealed.</p> <p>Error assigned, among others, was decree of the court.</p>

Appeals, Nos. 58 and 59, Oct. T., 1912, by defendant from judgment of O. P. Allegheny Co., Feb. T., 1909, No. 685, on verdict for plaintiffs in case of Charles Samarra and Eose Samarra, his wife, v. Allegheny Valley Street Eailway Company. Trespass to recover damages for personal injuries. Before Evans, J. The facts are stated in the opinion of the Supreme Court. The jury returned a verdict for plaintiff, Eose Samarra, for $2,500, and for Charles Samarra for $1,500.

<p>Criminal law — Murder—Defense of insanity — Court and jury— Examination of jurors — Expert testimony — Instructions to jury— Burden of proof — Points for charge.</p> <p>1. A trial court is not obliged to charge a point which suggests theories not reasonably sustainable by the evidence.</p> <p>2. In a trial upon an indictment for murder counsel may not examine a proposed juror upon his understanding of the law; he may be asked the broad question whether, if sworn as a trier, he would accept and act upon the law as stated to him by the court; and this is as far as the examination on the voir dire may properly proceed along that line.</p> <p>3. A conviction in a criminal case will not be reversed because of a slight inaccuracy in the judge’s statement of the testimony, especially where counsel does not call attention to the mistake at the time.</p> <p>4. In a homicide case the burden of proof of insanity is with the defense from the beginning and is never shifted.</p> <p>5. The defense of moral insanity or irresistible impulse can only be recognized in the clearest cases, where it is shown to have been habitual, or at least to have evinced itself on more than a single instance. To establish it as a justification in any particular case it is necessary either to show, by clear proof, its contemporaneous existence by present circumstances, or the existence of an habitual tendency developed in previous cases, becoming in itself a second nature.</p> <p>6. Proof that insanity has existed at any indefinite time in the past does not raise the presumption in law, sufficient to excuse a homicide, that it continued up to the time of the committing of the crime at some subsequent date; much clearer proof of insanity at the time of the commission of the deed is required.</p> <p>7. Proof of the existence of delusions of a character that “might produce” an irresistible impulse to take life is insufficient to excuse a homicide, without proof that the delusions were of a character that would have a tendency to produce such an irresistible impulse.</p> <p>8. Upon the trial of an indictment for murder, where the defense relied upon was insanity in the form of delusions of oppression and threats against the defendant’s life which produced homicidal mania at the time of the killing, it appeared that the defendant had been a boarder at the home of the deceased, who had ordered him out of the house a short time before the homicide; that a few days prior to the shooting the defendant had borrowed a gun and on the afternoon of the shooting he had returned to the residence of the deceased and deposited the gun on the porch; that in the evening the deceased upon opening the door in response to a rap was shot in the head by the defendant who stood on the outside with the weapon in his hand. The defendant in a voluntary confession said that he had committed the deed because the deceased had treated his own wife badly and had threatened defendant’s life. There was testimony that the defendant had had improper relations with the wife of the deceased. The defendant testifying in his own behalf said that he did not remember what he did after taking up the gun and that his first realization that he had killed the deceased came at a later time, and also that he did not know just what he had in mind when he entered the yard. He testified further that the so-called threats all antedated the killing, and he did not say that at the time of the homicide he had any immediate hallucinations or that he was forced by an irresistible impulse to kill deceased. The evidence depended" upon to show insanity tended to show that the defendant was melancholy by nature and from time to time imagined that others wanted to harm or to kill him; but that he was normally a mild-mannered man who did not attempt harm. There was no testimony that his alleged delusions had in the past ever impelled him to attempt to punish, much less to kill, his supposed enemies, and the only testimony concerning homicidal tendencies was that of an expert witness who testified that “many cases of paranoia have homicidal tendencies.” Meld, a verdict of guilty of murder in the first degree was justified.</p> <p>9. In such a case the judgment will not be reversed because of alleged error based upon detached abstracts from the charge where it appears that when these excerpts are read into the whole charge the defendant has not just ground for complaint.</p> <p>10. In such a case it is not reversible error for the court to have permitted an expert witness called by the Commonwealth to testify to his opinion as to defendant’s insanity, although the witness had not heard the direct examination of the defendant or the depositions of witnesses who described his condition at a period prior to the commission of the crime, where the testimony actually adduced merely amounted to an expression of opinion on the mental state of the defendant at the time of the trial; and this is particularly true where the witness was not called as a principal or leading expert, and it is not probable that his testimony exercised any controlling weight in determining the verdict.</p>

Appeal, No. 42, Oct. T., 1912, by defeudant, from order of O. P. No. 3, Allegheny Co., Feb. T., 1906, No. 62, discharging motions for new trial and judgment n. o. v., in the case of Safe Deposit & Trust Company of Pittsburgh, Trustee under the Will of William A. Nimick, deceased, Arthur O. Fording, Guardian of Eleanor H. Nimick, a minor, Ella H. Nimick, Harriet Nimick Dyer and Mary K. Nimick v. Bovaird & Seyfang Manufacturing Company, a corporation.

<p>Appeal, No. 64, Oct. T., 1912, by defendants, from decree of O. P. Allegheny Co., Feb. T., 1911, No. 436, in equity, awarding injunction in case of Malachy O’Donnell v. H. K. Porter Company, a corporation, and The McConway & Torley Company, a corporation.</p> <p>Bill in equity for injunction to restrain obstruction of street.</p> <p>Kennedy, P. J., filed an opinion which was in part as follows:</p> <p>The purpose of this bill is to prevent by injunction the defendants from closing or in anywise obstructing Calton street and Hulburt alley, in the City of Pittsburgh.</p> <p>The plaintiff is the owner of a certain lot or piece of ground situate in the Ninth ward of the City of Pittsburgh, being Lot No. 32 in a certain plan of lots alleged to have been laid out by one George A. Bayard, dated October 31, 1826, and recorded June 1, 1846, in the recorder’s office of Allegheny County, Pennsylvania, said lot being situated on the southeast corner of Harrison and Forty-ninth streets, and having a frontage of fifty (50) feet on Harrison street, and extending back an even width, along Forty-ninth street one hundred (100) feet to an alley marked “Cherry Alley” in said plan. The first paragraph of plaintiff’s bill which is as follows, namely: “First. By deed dated November 27, 1827, George A. Bayard became seized in fee simple of a tract of land situate in what was then known as Pitt Township, and being so seized thereof laid out on a part of said tract of land, a plan of lots, called Hatfield, said plan being recorded in Deed Book Yol. 73, page 495,” was admitted by the defendants in their answer to the bill. The said George A. Bayard conveyed to various purchasers lots embraced in this plan, described in the deeds by the numbers in the plan, and reciting the plan as dated October 1, 1836, and recorded June 1, 1846, naming the streets and alleys therein. George A. Bayard subsequently on' May 17, 1852, placed on the face of the record of said plan an acknowledgment of it; also placed thereon the following certificate:</p> <p>“I, George A. Bayard, the proprietor of the ground in the above named plan, and in consideration of enhancing the value of the said ground, have given, granted and conveyed, and by these presents do give, grant and convey all the ground contained in the above named streets and alleys for public highways to be used and enjoyed as public streets and alleys forever. In witness whereof I hereunto set my hand and seal this 17th day of May, A. D. 1852.”</p> <p>“Signed, George A. Bayard.”</p> <p>“Witness A. T. Ager.”</p> <p>The plaintiff and the defendants both as well as others, became purchasers of lots in this plan, -and conveyances of the same in their abstracts of title containing the recitals above named as to the plan, its date of making and date of record, and so forth; from which we are left without doubt that the plaintiff is the owner of Lot No. 32 in the plan of George A. Bayard, as recorded in Deed Book Yol. 73, page 495, and that such plan was laid out on the date endorsed on the face of the plan, October 1, 1836, and the question for determination in this case is: When a plan of lots is laid out with streets and alleys for the use of the owners of such lots and the public generally, and lots are sold abutting on such •streets, does such action operate as a dedication of the streets to public use, and as a covenant that the streets shall be open to purchasers forever? We think this question has been answered in the affirmative by both of our appellate courts, and we deem it only necessary to refer to some of the decisions of these courts, which will be done hereafter.</p> <p>FINDINGS OF FACT.</p> <p>The plaintiff is the owner of lot No. 32 in said plan of George A. Bayard, the title to which said lot passed from George A. Bayard by deed dated May 27, 1840, of record in Deed Book Yol. 97, page 438, the grantee in said deed being Richard Fairfield, a predecessor in title of the plaintiff.</p> <p>The defendant, H. K. Porter Company is the owner of (inter alia) Lots Nos. 45, 46, 47 and 48 in said plan of George A. Bayard, fronting on the southwesterly side of Calton street, and extending back to Hulburt alley.</p> <p>The defendant, McConway & Torley Company is the owner of (inter alia) lots Nos. 42, 43 and 44 in said plan of George A. Bayard, fronting on the southwesterly side of Calton street, and extending back to Hulburt alley.</p> <p>The said George A. Bayard is the common source of title of both plaintiff and defendants.</p> <p>Among .the streets marked and plotted on the plan of George A. Bayard was Clay street, fifty (50) feet in width, extending from Forty-eighth street to Forty-ninth street. The name of said Clay street was subsequently changed to Calton street.</p> <p>Among the alleys shown on the plan of George A. Bayard, was Strawberry alley, twenty-five (25) feet wide, extending from Forty-eighth to Forty-ninth streets, the name of said alley afterwards having been changed to Hemlock alley, and subsequently by ordinance approved April 5, 1910, the name of said alley was changed to Hulburt alley.</p> <p>The defendants have closed Hulburt alley by its erection of a fence across the same about 150 feet from the» Forty-ninth street, entrance to said alley, and further obstructed said alley with various kinds of building material and refuse, whereby the same has become impassable to the plaintiff and the public generally.</p> <p>The defendants have entered upon Calton street and obstructed the same with scrap iron, structural steel and other material, together with cinders and refuse from their works, and intend to permanently close the same, whereby said street will become impassable to the plaintiff and the public generally.</p> <p>Calton street has always been open for the use of the plaintiff and the public generally, until partially obstructed by the defendants. The tracks of the Allegheny Valley Railroad Company have not obstructed materially the passage over Calton street, nor have the scales on the lower part of Forty-ninth street, at the corner of Calton street so materially obstructed the said street.</p> <p>By deed dated January 18, 1838, George A. Bayard sold lot No. 46 in his plan to James B. Tolle, said deed calling for Clay street, and said lot being described as marked in plan lately laid out by said Bayard in Hatfield farm, No. 46, the defendant, H. K. Porter Company, being the present owner of said lot.</p> <p>By deed dated October 20, 1842, George A. Bayard conveyed lots 42, 43, 44 and 45 in his plan to Robert Morrow, said lots being described as in the plan of George A. Bayard, laid out October 1, 1836, the defendant McConway & Torley Company being the present owner of said lots, with the exception of lot No. 45, which is owned by the H. K. Porter Company.</p> <p>At the time the said plan was laid out by the said George A. Bayard, the territory included in the same was then a part of Pitt Township, and subsequently the territory in the plan became a part of Peebles Township, and afterwards was embraced in the Borough of Lawrenceville, and still later became a portion of the City of Pittsburgh.</p> <p>On July 18, 1910, an ordinance was passed by the City of Pittsburgh, approved by the mayor, vacating Hemlock alley from Forty-eighth street to Fiftieth street, as shown in the plan known as the Borough of Lawrenceville, approved by the borough council May 22, 1867, and within thirty days after the passage of this ordinance there was paid into the treasury of the City of Pittsburgh the sum of $2,000.00 for the use of said city.</p> <p>On October 26, 1910, an ordinance was passed by the City of Pittsburgh, approved by the mayor, vacating Calton street from Forty-eighth, street to Forty-ninth street, as shown in the plan known as the Borough of Lawrenceville, approved- by the borough council March 22,1867, and within thirty days after the passage of this ordinance there was paid into the treasury of the City of Pittsburgh the sum of $2,000.00 for the use of said City.</p> <p>The McConway & Torley Company and the H. K. Porter Company own all the land on the south side of Calton street, between Forty-eighth street and Forty-ninth street, except lot No. ál, and the north side of Calton street is occupied by the railroad company.</p> <p>The H. E\ Porter Company owns all the land on the south side of Hemlock alley between Forty-eighth street and Forty-ninth street, and the McConway & Torley Company and the H. K. Porter Company own all the land on the north side.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. Where the owner of real property lays out a town upon it, and divides the land into lots and blocks, intersected by streets and alleys, and sells any of the lots with reference to such plan, he thereby dedicates the streets and alleys to the use of the public.</p> <p>'2. The conveyance by Bayard to James B. Tolle, of lot No.- 46, by deed dated January 18,1838, of record in Deed Book Vol. 55, page 279, describing said lot as marked-in plan lately laid out by said Bayard in Hatfield farm as No. 46, carried with it, by implication, a dedication of all the streets and alleys in said Bayard plan to public use.</p> <p>3. The sale of lots' according to a plan which shows them to be on a street implies a grant or covenant to the purchaser that the street shall be forever open to public use, and operates as a dedication to public use. Not only can the purchaser of lots abutting thereon assert this character, but all others in the general plan may assert the-same.</p> <p>4. Bayard having conveyed to Richard Fairfield lot No. 32, by deed dated May 27, 1840, the said Fairfield took by implied covenant, the right that all the streets and alleys in the Bayard plan should forever remain open to the use of Fairfield and his successors in title, and the public generally, which right has passed to the plaintiff as a successor in title to said Fairfield, and present owner of said lot 32.</p> <p>5. This conveyed right of way is appurtenant to the land, and is wholly distinct from the public right of passage, and the vacation by the municipality of a street on the plan, will not divest the plaintiff’s right to have the street left open, and neither Bayard, nor those who acquired title from him to other lots in the plan, can close any street on the plan or deprive the plaintiff of his right to use as public highways, the streets on the plan.</p> <p>6. The defendants, having closed and obstructed Hulburt alley, obstructed Calton street and threatened to close said street entirely, the plaintiff is entitled to an injunction compelling the removal from said alley and street all said obstructions and restraining the defendants from closing or in any other manner obstructing said street and alley, as shown on the Bayard plan.</p> <p>7. It is immaterial whether Bayard’s plan was recorded at the time Bayard sold to Fairfield, as between the parties to this suit, the defendants being the owners of lots in said plan, which were conveyed by Bayard to their predecessors in title, prior to the recording of the plan, and they having had notice of the existence of the plan in their own chain of title.</p> <p>8. The deeds of the defendants’ predecessors in title having called for Calton street (formerly Clay street) and their lots being described by number in a plan laid out by George A. Bayard, October 1, 1836, the defendants are estopped from denying the date the plan was laid out or the existence of the streets and alleys shown on said plan.</p> <p>9. The plaintiff has a private right of way or easement in Calton street and Hemlock alley paramount to the right of the city to vacate.</p> <p>10. At the time of the passage of the Act of June 16, 1836, P. L. 749, which provides as follows:</p> <p>“All streets, lanes and alleys within the city of Pittsburgh, if not less than twenty feet in width, which have been laid out, appropriated and opened by private persons for public use or for the use of the owners of lots fronting thereon, or which shall be, being of not less than twenty feet in width, hereafter laid out, appropriated and opened as aforesaid, shall for every purpose be deemed, taken and be public highways, as fully as the other public streets within the said city.”</p> <p>At the time of the passage of this act, the territory embraced in the plan of lots in controversy in this case was situate in Pitt Township, and did not become part of the City - of Pittsburgh, and the streets and alleys therein did not come within the provisions of that act until the year 1868.</p> <p>11. The acquiescence and permission of the plaintiff in the partial use of Calton street at its junction with Forty-ninth street for the office and scales of his tenant is not a denial of the right of the other lot owners in said Bayard plan of a private easement in Calton street, and the plaintiff can still assert his right of private easement therein.</p> <p>12. The City of Pittsburgh may have the right to vacate Calton street and Hulburt alley to the extent of relieving the said city from its liability to maintain and keep in repair the said street and alley, but this cannot deprive the plaintiff of his right-of-way or easement over said street and alley, which is paramount to the right of the City of Pittsburgh.</p> <p>These conclusions dispose of the questions in this case, and we only deem it necessary to refer to the authorities of our appellate courts, which sustain the conclusions reached.</p> <p>See Quicksall v. Philadelphia, 177 Pa. 301; Jessop v. Kittanning Borough, 225 Pa. 583; Wickham v. Twaddell, 25 Pa. Superior Ot. 188; and various authorities cited in the opinions in these cases.</p> <p>We are of opinion that plaintiff is entitled to the relief prayed for, and an injunction should be granted against the defendants, restraining them perpetually from closing or in any manner obstructing Calton street and Hulburt alley, between Forty-eighth and Forty-ninth streets, and requiring them to remove any obstructions placed thereon by them, the said defendants.</p> <p>The court entered a decree awarding an injunction as prayed for. Defendants appealed.</p> <p>Error assigned, inter alia, was the decree granting an injunction.</p> <p>— Plaintiff had no easement in the highway: Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318; Carroll v. Asbury, 28 Pa. Superior Ct. 354; Jessop v. Kittanning Boro., 225 Pa. 583; Morrow v. Traction Co., 219 Pa. 619; Garvey v. Refractories Co., 213 Pa. 177; Reis v. New York, 188 N. Y, 58 (80 N. E. Repr. 573); Regan v. Boston Gas Light Co., 137 Mass. 37; Transue v. Sell, 105 Pa. 604; Paul v. Carver, 24 Pa. 207; Bellinger v. Union Burial-Ground Society, 10 Pa. 135; Trutt v. Spotts, 87 Pa. 339; Brooklyn Street Opening, 118 Pa. 640; Easton Boro. v. Rinek, 116 Pa. 1; Bell v. Todd, 51 Mich. 21 (16 N. W. Repr. 304).</p> <p>If plaintiff had any private easement it was destroyed by the vacation of the streets: Act of May 1874, P. L. 230; Act of May 8, 1854, P. L. 645; Henry Street Vacation, 123 Pa. 346; McGee’s Appeal, 114 Pa. 470; Pittsburgh v. Epping-Carpenter Co., 194 Pa. 318; Act of June 16, 1836, P. L. 749; O’Donnell v. Pittsburgh, 234 Pa. 401; Duff v. Heppeustall Forge & Knife Co., 234 Pa. 275.</p> <p>— The question has been decided against the contention of appellants; O’Donnell v. Pittsburgh, 234 Pa. 401.</p> <p>Plaintiff had an easement in the streets on the plan; Garvey v. Refractories Co., 213 Pa. 177; Jessop v. Kit-tanning Boro., 225 Pa. 583; Wickham v. Twaddell, 25 Pa. Superior Ct. 188; O’Donnell v. Pittsburgh, 234 Pa. 401.</p>

Appeal, No. 69, Oct. T, 1912, by plaintiff, from decree of O. P. No. 2, Allegheny Co., Jan. T., 1911, No. 442, in equity, dismissing the bill in equity in the case of Gertrude M. Tesson v. H. K. Porter Company, a corporation of Pennsylvania. Bill in equity to restrain the obstruction of a street. The facts are stated in the opinion of the Supreme Court.

<p>Insurance — ■ Liability insurance — Ordinance — Covering over pavement — Failure to provide.</p> <p>The plaintiff was the holder of a policy of insurance against loss arising from liability for injuries which might be occasioned by him or his workmen, which provided, inter alia: “This policy does not cover loss from liability for injuries when the assured has failed to observe any statute affecting the safety of persons or has violated any local ordinance made in the same behalf.” Plaintiff suffered loss by reason of an injury occasioned to a passerby through the negligence of his workmen while erecting a fire escape on a theatre, without having erected a covering over the sidewalk. An ordinance of the City of Pittsburgh provided, inter alia: “Whenever any new building shall have attained the height of one story, or whenever it may become necessary to unroof or take down any building fronting on any street, square or alley in this city, or to perform any work thereon whereby risk may be incurred to persons passing the same, it shall be the duty of persons erecting, unroofing, taking down or performing any work on any such building, or of the owner thereof to erect a good and substantial covering over the pavement or footwalk in front of said building, of such elevation as to not interfere with the free use of such pavement or footwalk, under a penalty of five dollars for each day during which the provisions of this section remain uncomplied with.” Held, the terms of the ordinance did not cover the work being done as above described, and the plaintiff was, therefore, entitled to recover.</p>

<p>Appeal, No. 120, Oct. T., 1912, by Robert Agnew, Administrator of Stella K. Agnew, deceased, from decree of O. O. Allegheny County, Dec. T., 1910, No. 85, dismissing exceptions to adjudication in Estate of John Bryce, deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was the decree dismissing the exceptions to the adjudication and awarding distribution.</p> <p>— Title vested in the four children by the will of their father: Com. v. Duffield, 12 Pa. 277; Reed’s Appeal, 118 Pa. 215; King v. King, 1 W. & S. 205; McGill’s Appeal, 61 Pa. 46; Mull v. Mull, 81 Pa. 393; Womrath v. McCormick, 51 Pa. 504; Comly’s Est., 136 Pa. 153; Neely’s Est., 155 Pa. 133.</p> <p>— The power was validly exercised: Paske v. Haselfoot, '33 Beav. 125; Leeds v. Wakefield,. 76 Mass. 514; Boyle v. Bishop of Peterborough, 1 Yes. Jr. 299.</p>

<p>Negligence — Municipalities—Streets and highways — Steps— Plan of construction.</p> <p>1. In an action against a city to recover damages for personal injuries sustained by the plaintiff while descending a flight of steps constructed and maintained on the side of a hill by the city for the use of pedestrians, the negligence charged being that the construction of the steps was too steep and narrow for safety, the jury should not be permitted to say that the judgment and discretion vested in the city authorities in connection with public thoroughfares was not properly exercised in the adoption of the plan under which the steps were constructed, where it is not shown that the method of construction was unusual or that it differed from the ordinary plan found in such localities and there is an absence of evidence as to the conditions on the ground and as to the requirements for the public service at that place.</p> <p>Evidence — Measurements—"Guesses" or "belief."</p> <p>2. Where the matter of measurement is important, the “guesses” or “belief” of a witness cannot be accepted as against the sworn statement of competent witnesses who give the results of actual measurements.</p>

<p>Negligence — Measure of damages — Surgical operation.</p> <p>In an action to recover .damages for personal injuries where there is evidence that the injuries of plaintiff attributed to the accident would be permanent unless corrected by a serious surgical operation attended by some risk of failure, and it appears that plaintiff had already submitted to one operation, her refusal to undergo another in no way affects her right of recovery.</p>

<p>Negligence — Real property — Obstruction in footway — Question for jury — Parties—Husband and wife — Wife’s sepa/rate property— Judgments — Modification of judgment — Act June 8, 1898, P. L. SU-</p> <p>1. In an action against the owner of real estate for personal injuries alleged to have been caused by an obstruction upon the sidewalk in front of defendant’s property, the question of defendant’s negligence is for the jury where it appears that the plaintiff had stumbled over the edge of a freight elevator which was operated from the cellar beneath defendant’s building up through the sidewalk; that the top of the elevator, which was intended to seat into a framework flush with the sidewalk, was out of order, so that it projected above, leaving a space of about three inches, in which the plaintiff’s foot was caught; and that the elevator had been permitted to remain for some time in this condition, of which defendant’s employees had knowledge.</p> <p>2. In such a case plaintiff cannot be convicted of contributory negligence as a matter of law because she passed along the sidewalk where she knew the elevator was located at a time when there were coal wagons standing in front of yhe building, and knew that coal was being put in or ashes taken out, where it does not further appear that she knew the elevator was not properly in position.</p> <p>3. In such a case it is error to join husband and wife as joint tort feasors where the liability for which recovery is sought is based entirely upon the wife’s ownership of the property and the neglect of duty charged was that of her employees, no claim being made against the husband as an actual tort feasor.</p> <p>4. Where in such a case a judgment has been obtained against both defendants after a trial in which there was no error as to the wife, the Supreme Court may affirm the judgment as to her and reverse it as to the husband.</p>

<p>Appeal, No. 145, Oct, T., 1912, by defendant, from judgment of O. P. Allegheny Co., Aug. T., 1909, No. 155, on verdict for plaintiff in case of Elizabeth R. Harkness, use of Carl D. Smith, Executor, v. Borough of Swissvale.</p> <p>Trespass to recover damages for personal injuries. Before Cohen, J.</p> <p>From the record it appeared that a witness, the superintendent of a hospital, identified the record of the hospital showing the history of the case of the deceased while she was in the hospital, about two months after she had sustained the injuries for which the action was brought. The superintendent identified the record as being in the handwriting of a physician and a nurse attached to the hospital, but stated that he had no personal knowledge as to the information recorded in the record. The record was offered in evidence by defendant; objection was made, and sustained by the court, to which the defendant excepted.</p> <p>Following the rejection of the record counsel for defendant made a motion for a continuance until such time as he could produce the physician who could testify as to the facts stated in the record. The court refused the motion, saying, “It was quite possible to take the depositions of Dr. Gaub and Dr. Linebaugh.” The record was excluded and the motion to continue the case was refused. Defendant excepted.</p> <p>Verdict for plaintiff for $3,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were the action of the court in excluding the record as above stated and overruling the motion for a continuance.</p> <p>— The record should have been admitted: Lake Shore & Michigan Southern Ey. Co. v. Eosenzweig, 113 Pa. 519; North Bank v. John Abbot, 30 Mass. 465; Donovan v. Boston and Maine E. E. Co., 158 Mass. 450 (33 N. E. Eepr. 583); Townsend v. Pepperell, 99 Mass. 40; Hay v. Kramer, 2 W. & S. 137; Garabrant v. Wood, 4 Pa. Superior Ct. 391.</p> <p>— The record was properly excluded: Carlton v. Carey, 83 Minn. 232 (86 N. W. Eepr. 85); Com. v. Berney, 28 Pa. Superior Ct. 61; Doe v. Turford, 3 B. & Ad. 890; Nicholls v. Webb, 21 H. S. 326; Farmer’s Bank v. Whitehill, 16 S. & E. 89; Chaffee v. United States, 85 U. S. 516; Thomas v. Price, 30 Md. 483; Johnson v. State, 59 Ala. 37; Cook v. U. S., 138 U. S. 157 (11 Sup. Ct. Eepr. 268) ; Nicholls v. Webb, 21 U. S. 326; Wilbur v. Selden, 6 Cowen 162; Welsh v. Barrett, 15 Mass. 380; Swan v. Thurman, 112 Mich. 416 (70 N. W. Eepr. 1023); Miller v. Miller, 187 Pa. 572; Conn. Mut. Life Ins. Co. v. Schwenk, 94 U. S. 593; Penna, Co. v. McCaffrey, 173 111. 169 (50 N. E. Eepr. 713); Kerr v. Ey. Co., 57 N. Y. Supp. 794; Vicksburg v. O’Brien, 119 U. S.’99 (7 Sup. Ct. Eepr. 118); Tingley v. Land Co., 9 Wash. 34 (36 Pac. Eepr. 1098).</p> <p>The motion for continuance was within the discretion of the court: DeGrote v. DeGrote, 175 Pa. 50; Com. v. Buccieri, 153 Pa. 535; Com. v. Hazlett, 16 Pa. Superior Ct. 534; Butler v. Estrella Raisin Vineyard Co., 124 Cal. 239 (56 Pac. Repr. 1040).</p>

<p>Appeal, No. 149, Oct. T., 1912, by plaintiff, from judgment of C. P., No. 4, Allegheny Co., Fourth T., 1907, No. 220, for defendant n. o. y. in case of Joseph F. Sulzner v. Cappeau, Lemley & Miller Co., et al.</p> <p>Replevin to recover certificates of stock. Before Shafer, J.</p> <p>The opinion of the Supreme Court and the report, of the same case in 234 Pa. 162 state the facts.</p> <p>At the trial the question was submitted to the jury as to whether the plaintiff executed certain receipts which had the effect of transferring the certificate of stock in suit to defendants while under duress. Defendant presented a point for binding instructions, which was refused. The jury returned a verdict in favor of the plaintiff for $3,575. Subsequently the court entered judgment for the defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p> <p>— The transfer was made under duress and is invalid : Motz v. Mitchell, 91 Pa. 114; White v. Heylman, 34 Pa. 142; Jordan v. Elliott, 12 W. N. C. 56; McGrory v. Reilley, 8 W. N. C.' 104.</p> <p>— There was not sufficient evidence of duress to go to the jury: Sulzner v. Cappeau, Lemley & Miller Co., 234 Pa. 162; Union Nat. Bank v. Dersham, 15 W. N. C. 541.</p>

Appeal, No. 159, Oct T., 1912, by plaintiff, from judgment of C. P., No. 4, Allegheny Co., Third T., 1908, No. 681, in favor of defendant n. o. v., in case of James H. Schiffer v. W. N. Sauer Company and The Philadelphia Company. Trespass to recover damages for personal injuries. Before Cohen, J. The facts are stated in the opinion of the Supreme Court. The jury rendered a verdict in favor of the plaintiff for |2,250.

<p>Mortgages — Vendee’s agreement to pay mortgage — Personal liability — Act of June 12, 1878, P. L. 205.</p> <p>The owner of a mortgage on certain real estate which, after the mortgagor’s death, was sold by order of the Orphans’ Court, the vendee taking it subject to the mortgage and with an agreement that the mortgage should be paid as a part of the consideration, is not entitled to prove the unpaid portion of the mortgage as a claim against the estate of the vendee after his death on the ground that there was a personal liability assumed for the payment of the mortgage, since, even conceding that the vendee assumed such personal liability, the right to enforce it inured to the grantor only with whom the agreement was made, under the Act of June 12, 1878, P. L. 205, and in any event the remedy on such agreement of payment being first against the land.</p>

Appeal, No. 207, Oct. T., 1912, by plaintiffs, from judgment of O. P. Allegheny Co., Third T., 1908, No. 976, on verdict for defendant in case of William D. Irwin, et al., v. The Monongahela River Consolidated Coal and Coke Company. Ejectment for coal underlying certain land in Forward Township. Before Macfaelane, J. The facts are stated in the opinion of the Supreme Court. Verdict and judgment for defendant. Plaintiff appealed.

Appeal, No. 168, Oct. T., 1912, by plaintiff, from order of C. P., Allegheny Co., July T., 1912, No. 2638, Docket B, refusing writ of peremptory mandamus in case of Commonwealth of Pennsylvania, ex rel. the City of Pittsburgh, a Municipal Corporation, v. Samuel J. Grenet. Petition for mandamus to compel a delinquent tax collector to comply with an ordinance of the City of Pittsburgh.

<p>Equity — Contracts—Enforcement of contracts — Remedy at law —Authority of agent — County engineer.</p> <p>In a proceeding in equity against a county to prevent the defendant from trespassing on certain property and for an order directing defendant to restore buildings and equipment, and to ascertain damages, it appeared that the plaintiff had been the owner of certain land which was condemned by the defendant for the approaches of a bridge; that on appeal from the award of viewers th.e defendant had agreed, in consideration of plaintiff’s making no claim for damages to a gas well located on the ground in question, “to permit the gas well to remain as now- located so long as it shall continue to produce gas and to so construct and maintain the bridge approaches thereto that space shall be left necessary for the free use and operation of the said gas well and the construction and operation of machinery and appliances necessary for its maintenance and operation”; and that in the construction of the bridge abutments certain pipe connections and the' boiler and engine house-at the well were necessarily removed and a nearby wall was damaged. There was evidence tending to show that the county engineer personally agreed to replace the boiler and engine house. The court below dismissed the bill on the ground that no duty rested upon defendant under the contract except to leave uncovered the place where the well was located; that it was immaterial whether the county engineer made the further agreement alleged, and that the plaintiff had an adequate remedy at law. Held, no error.</p>

<p>Wills — Undue influence — Devisavit vel non — Evidence—Court and jury.</p> <p>1. Undue influence, to affect a will, must be such as subjugates the mind of the testator to the will of the person operating upon it, and where the charge is that such undue influence has been exercised on a strong and free mind, nothing short of direct, clear and convincing proof of fraud or coercion will prevail.</p> <p>2. In an issue devisavit vel non to determine whether a testamentary writing was procured by fraud and undue influence, binding instructions for the defendant are proper where it appears that the testatrix, a woman sixty-nine years of age, was of considerable business experience, strong mind and unimpaired mental faculties, that the will in question was drafted by the title officer of a trust company in accordance with the testatrix’s directions, revised by her so that more liberal provision was made for the contestant, and twice signed in tbe presence of disinterested witnesses; and it further appeared that the person alleged to have exercised such undue influence was not present when the directions were given for the preparation of the will, when it was drawn, or when it was executed and there was no evidence that he exercised any influence over testatrix in the preparation or execution of the will or that he knew of its contents until after testatrix’s death, nothing more appearing by contestant’s case than that such person had an opportunity to influence testatrix and a motive for doing so.</p>

<p>Practice — Equity—Preliminary injunctions — Appeals.</p> <p>A decree dissolving a preliminary injunction was affirmed where it did not appear that the discretion of the court was not rightly exercised, the Supreme Court, in accordance with the established practice, expressing no opinion on the merits.</p>

Appeal, No. 182, Qct. T., 1912, by plaintiff, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1910, No. 374, in favor of defendant n. o. v. in case of Leona Hugo v. Baltimore & Ohio Railroad Company. Trespass to recover damages for the death of plaintiff’s husband. Before Reid, J. The facts are stated in the opinion of the Supreme Court, The jury rendered a verdict in favor of the plaintiff for $3,000.00.

<p>Appeal, No. 92, Oct, T., 1912, by defendant, from judgment of C. P. Allegheny Co., Second T., 1909, No. 271, on verdict' for plaintiff in case of James Izzo v. P. W. Finn.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The jury rendered a verdict in favor of the plaintiff for $6,000.</p> <p>The court overruled the motions for new trial and judgment for defendant n. o. v. and entered judgment on the verdict. Defendant appealed.</p> <p>Errors assigned were the refusal of binding instructions for defendant, and overruling motion for judgment for defendant n. o. v.</p> <p>— Plaintiff was guilty of contributory negligence : Solt v. Williamsport Eadiator Co., 231 Pa. 585; Lee v. Dobson, 217 Pa. 349; Bentley v. Eochester Planing Mill Co., 38 Pa. Superior Ct. 172.</p> <p>There was no violation of the Act of May 2, 1905, P. L. 352; McCoy v. Wolf Co., 235 Pa. 571.</p> <p>— Whether guards were needed was for the jury: Jones v. Caramel Co., 225 Pa. 644; Valjago v. Carnegie Steel Co., 226 Pa. 514; McCoy v. Wolf Co., 235 Pa. 571.</p>

<p>Appeal, No. 181, Oct. T., 1912, by plaintiff, from decree of C. P. No. 4, Allegheny Co., Third Term, 1911, No. 35, on bill in equity in case of Swissvale Borough v. Pittsburgh & Connellsville Railroad Company, and Baltimore & Ohio Railroad Company.</p> <p>Bill in equity for an injunction.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was decree refusing order to remove the tracks.</p>

<p>* Road law — Change of grade — Evidence.</p> <p>1. In an action against a borough to recover damages resulting from a change of grade of a street, it appeared that the borough had ordered two changes of grade, but that the plaintiff was suing for damages arising only from the second change. The plaintiff offered evidence relating to the first change of grade, but only for the purpose, as stated by counsel, to make plain to the jury the whole situation, and not for the purpose of claiming damages for the first change of grade. The court in its charge explained the purpose of the admission of the testimony and expressly told the jury that in considering the question of damages they should confine their attention to the condition of the property immediately prior to the second change of grade. The jury viewed the property. Held, that the admission of evidence as to the first change of grade was not error.</p> <p>2. In such a proceeding, where the evidence is conflicting as to whether the curb set by the borough was at a grade different from that established by the ordinance, it is not error for the court to instruct the jury that in determining the damages they might consider the actual grade at which the curb was set, if they found that it was in fact different from that established by the ordinance.</p> <p>Appeals — Assignments of error — Evidence—Exceptions nunc pro tunc.</p> <p>3. An assignment of error to the admission of testimony is defective if it fails to embody the testimony admitted under the objection and ruling of the court set out in the assignment.</p> <p>Practice C. P. — Exceptions—Failure to note — Petition to grant exceptions nunc pro tunc — Act of May 11,1911, P. L. 219.</p> <p>4. A refusal by the trial judge to grant exceptions nunc pro tunc to certain rulings upon evidence will not be reversed, where the court below has found as a fact that no exceptions were requested at the time of the trial. The Act of May 11, 1911, P. L. 279, does not change the practice requiring counsel to request an exception in the presence and hearing of the trial judge immediately succeeding a ruling.</p>