Volume 240 — Pennsylvania State Reports

Appeal, No. 242, Jan. T., 1912, by defendant, from judgment of C. P., Delaware Co., March T., 1911, No. 188, on verdict for plaintiff in case of Matthew Ralston, Jr., v. Baldwin Locomotive Works. Trespass to recover damages for personal injuries. Before Johnson, P. J. The facts appear in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $1,553.50. Defendant appealed.

<p>Appeal, No. 266, Jan. T., 1912, by defendant, from judgment of C. P. Chester Co., April T., 1911, No. 7, on verdict for plaintiff in case of Arthur E. Fredd v. C. S. Garrett & Son Company.</p> <p>Trespass to recover damages for personal injuries. Before Butler, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,760 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various instructions to the jury.</p>

<p>Wills — Issue devisavit vet non — Undue influence — Testamentary capacity — Evidence.</p> <p>1. Where it is shown that at the time of the execution of his will the testator had a knowledge of the property he possessed, an understanding of the disposition he wished to make of it, and of the' persons and objects he desired to share in his bounty, together with an intelligent consciousness of the nature and effect of the act he was engaged in, testamentary capacity is sufficiently established.</p> <p>2. Testator, who was seventy-nine years of age, died unmarried and without issue, leaving a will made nine months before his death by which he gave all his property to a niece with whom he had made his home for many years. He left as his heirs-at-law other nieces and also nephews, grandnieces and grandnephews. Four of the nieces and nephews contested the validity of the will, alleging undue influence and lack of testamentary capacity. The evidence showed little more than descriptions of the testator’s actions, or lack of action, the few times the witnesses saw him in his later years, and comments upon his appearance, his failure to recognize some of his relatives and his inclination not to talk when they visited him, together with indéfinite • reference to a “stroke”, they -supposed he had suffered years before his death, but no specific instances sufficient to indicate a lack of the real elements that go to make up testamentary capacity. Held, not sufficient to overcome the- testimony of the attesting witnesses that the testator possessed all the mental equipment which the law calls for under the circumstances, and that he fully understood what he was doing when he disposed of his property, especially as it was natural that he should leave his comparatively small estate to the niece with whom he had lived for many years and who had constantly ministered to his comfort.</p>

<p>Contracts — Evidence—Consideration—Contemporaneous agreement — Settlement of accounts — Instruction to jury.</p> <p>1. Where there is a written unconditional promise to pay, in a suit thereon between the original parties, one may show a contemporaneous agreement that the promisee/would look to. a special fund for the payment where such agreement constituted a part of the consideration of the written contract or operated as an inducement for entering into it.</p> <p>2. Plaintiff brought an action upon an oral contract to recover the sum which he alleged defendants, his former partners, had agreed to pay him for his interest in the firm. Plaintiff’s evidence indicated an oral contract by the defendants to pay plaintiff the sum claimed. Defendants denied that any value had been placed upon plaintiff’s interest in the firm or that there was any unconditional promise to pay him anything for it, but alleged that plaintiff proposed to retire from the firm upon the delivery to him of a series of promissory notes, totaling the amount of his original contribution, and that this proposition was accepted with the distinct understanding that the notes were to be paid only out of the future profits earned by the business. It was an admitted fact in the ease that the plaintiff had originally brought suit on such promissory notes, but had proceeded no further with it after the defendants had filed an affidavit of defense. Held, (1) it was error for the court to exclude evidence to show that the notes had been given as claimed, and that the amount thereof was to be paid only out of the future profits of the firm; (2) it was error to refuse to allow the defendants to cross-examine the plaintiff concerning his reasons for instituting- a suit on the notes, instead of setting up in the first instance the alleged independent promise to pay.</p>

<p>Appeal, No. 1, May T., 1912, by defendant, from judgment of C. P. Dauphin Co., Jan. T.,. 1907, No. 577, on verdict for plaintiffs in case of D. W. Cox and E. E. Lawton v. Pennsylvania Railroad Company.</p> <p>Trespass to recover treble damages for injuries sustained in consequence of refusal of railroad company to furnish siding connection. Before McCarrell, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $34,814.50 single damages which was reduced by remittitur to $27,851.60 and then trebled by the court. Defendant appealed.</p> <p>Errors assigned sufficiently appear by the opinion of the Supreme Court.</p>

<p>Appeal, No. 289, Jan. T., 1913, by defendant, from judgment of C. P. Schuylkill Co., July T., 1912, No. 62, in favor of relator, on suggestion and answer in case of Commonwealth of Pennsylvania ex rel. Thomas. Wood v. George Malians. Before Fell, C. J.,</p> <p>Quo warranto to try title to office. Before Bechtel, P. J.</p> <p>Error assigned was in entering judgment for tbe relator.</p>

<p>School law — Act of May 18,1911, P. L. 809 — Independent school districts — Petition to establish — Premature filing — Amendments to pleadings.</p> <p>Where an independent school district was to go out of existence on the first Monday of July, 1911, under the provisions of the School Code of May 18, 1911, P. L. 309, it was premature to present a petition on June 17, 1911, to create an independent school district out of the same territory embraced in the old district, and this error was not cured by filing subsequent to the first Monday of July, 1911, another petition supplementary and amendatory to the first, for the purpose of correcting the description of the territory to be embraced in the new district. The rights of the parties were to be determined as of the date when the proceeding was instituted.</p>

<p>Corrupt Practices Act of March 5, 1906, P. L. 78 — Filing account — Time limit — Penalty—Forfeiture of office — Borough councils — Declaration of vacancy.</p> <p>1. The provisions of the Act of March 5, 1906, P. L. 78, relating to the time for filing a sworn statement of election expenses is directory and was not intended to work a forfeiture of office for failure to file within a reasonable time.</p> <p>2. Where a borough councilman failed to file a sworn statement of his election expenses within the time fixed by the act, because of his erroneous belief that such statement need not be filed when his expenses were less than $50, but so soon as he learned his error proceeded with due diligence to file the same, he did not forfeit his office, and after filing his account was entitled to take his seat.</p> <p>3. In such case no power existed in the borough council to declare a vacancy and to appoint a person to fill it.</p>

<p>Contracts — Parol contracts — Sealed instrument — Extension by parol — Measure of proof — Pleading and practice. '</p> <p>1. The word parol is used to distinguish contracts which are made verbally or in writing not under seal, from those which are .under seal.</p> <p>2. An agreement under seal may be extended by paroj, and the evidence necessary to prove such parol- extension need not be clear, precise and indubitable, nor must there be two witnesses or one witness and corroborating circumstances, as in the case of reforming a written instrument.</p> <p>3. Where in such case, however, the pleadings clearly show that the plaintiff relied upon a renewal in writing endorsed upon the back of a sealed instrument, he cannot at the trial attempt to rely upon a subsequent oral renewal, there being no indication in his pleadings that any such renewal had been made.</p> <p>Contracts — Action for breach — Breach by plaintiff.</p> <p>4. Where plaintiff sued defendant to recover damages for breach of a contract to sell and deliver ice, and it appeared by the terms of the written instrument that the defendant might cancel the same at any time if plaintiff should become in arrears in his payments, and it was shown by evidence which was uncontradicted that the plaintiff had become in arrears and there was nothing to show any waiver of the agreement in this regard, the parties were bound by their covenant, and the action of the lower court in entering judgment for defendant n. o. v. was correct.</p>

<p>Negligence — Street railways — Bear end collision "between wagon and car — Case for jury.</p> <p>1. In an action against an- electric railway copipany to recover damages for the death of plaintiff’s husband, the case is for the jury, where it appears that the deceased at the time of the accident was driving on the eastbound track of the defendant’s railway, that owing to a car ahead he had stopped his team at the foot of a hill; and that another car came down the hill and struck the wagon in the rear; and there is testimony to show that this car was running at a very rapid rate of speed as it approached a curve on the top of the hill from which it descended, and that the efforts of the motorman and conductor to check the. car as it descended on the slippery rails came too late.</p> <p>Negligence — Death—Evidence as to cause of death — Proximate cause.</p> <p>2. In an action to recover damages for death which occurred seventy-six days alter the accident to the deceased, where a medical witness for the plaintiff testifies that death was due to pernicious anemia caused by the accident, and medical witnesses for the defendant testify without contradiction that the deceased had been suffering from Bright’s disease for two years prior to his death, .but there is no direct testimony that such disease was aggravated by the accident, it is reversible error for the court to instruct the jury that there was evidence from which they might find that the proximate oause of the death had been aggravation of the Bright’s disease, resulting from the accident.</p> <p>3. A verdict returned upon a theory unsupported by testimony is but a bald guess.</p>

Appeal, No. 18, Oct. T., 1913, by defendants, from judgment of Superior Court, April T., 1912, No. 169, reversing order of C. P. Armstrong Co., Dec. T., 1911, No. 67, refusing an issue to quiet title in case of Annie H. Mildren and W. J. Mildren, her husband, and Richard L. Mildren v. Nellie A. Nye and William Nye, her husband. Appeal from Superior Court.

Appeal, No. 390, Jan. T., 1912, by defendant, from order of C. P. Leb-igb Co., Sept. T., 1912, No. 24, making absolute rule for judgment for want of a sufficient affidavit of defense in case of D. C. Muller & Bro. v. Eittersville Hotel Company. Replevin for a caroussel. Rule for judgment for want of a sufficient affidavit of defense. Before Heydt, P. J., specially presiding. The opinion of the Supreme Court states the facts of the case.

<p>Appeal, No. 377, Jan. T., 1912, by Amanda S. Leaman and Mary J. Landis, from decree of O. C. Chester Co., dismissing appeal from register of wills in estate of John Sheaffer, deceased.</p> <p>Appeal from action of register of wills in probating a will.</p> <p>Butler, J., filed the following opinion:</p> <p>It is practically conceded and the evidence demonstrates, that on the thirteenth day of April, 1908, the deceased regularly and legally executed a testamentary paper in the presence of two competent subscribing witnesses ; that he then made a will valid and sound in every detail, and the opposition to its probate rests not at all on any question touching its original validity, but exclusively upon the fact that when viewed immediately after the deceased’s..death,, the first page, which contained some testamentary dispositions, was missing. The paper names Abram Herr as sole executor and was found by him locked up in the box of a buggy, where the deceased, shortly before his .death, stated the paper would be found. The legal presumption arises and prevails that the deceased removed the first page of the paper.</p> <p>We start then with a valid will, duly executed as to every word and line of its contents, and it is now the deceased’s will unless his removal of the first page subsequently to its execution is to be interpreted as its repeal. Under Section 13, Act of April 8, 1833 (P. L. 249), this will is not repealed unless it was the testator’s intention to repeal it, and in Evans’ Appeal, 58 Pa. ,238, it is decided that while a will may be repealed by acts done upon it that do not physically completely destroy it, the court there say: “Undoubtedly it must be an act done to the will itself and must be done animo cancellandi.” If standing alone, deceased’s removal of the first page of his will, — leaving the balance, inclusive of his duly attested execution, intact, — would warrant an inference that he intended to repeal his entire will, to cancel this remaining part which he had retained under lock, such inference would be answered and overcome by the fact fully and convincingly proved, that after he had removed the first page of the paper, he viewed and referred to the remaining part, as his will, telling his daughter-in-law that he believed he would not get well, that his will, would be found in the buggy box, the key of which was in his little pocket book, and that she should tell Mr. Herr, who would attend to the matter. The evidence shows that after this conversion, owing to his infirmity and removal to the hospital, the deceased in all probability had no opportunity to reach the will and remove the first page. We see no reason to doubt the truthfulness of the daughter-in-law, nor indeed, of any of the witnesses, for there has been no determined purpose shown to use the paper, but rather an acquiescence in the view that it was valueless. Our case is, in principle at least, similar to In re Pomeroy, 1 Berks County Law Journal, 331, where the will had been much mutilated by the testatrix, all of the dispositive portions of the codicil having been torn off, and the testatrix had made statements relative to the location of the paper, &c., indicating her recognition of it as her will. Judge Bland says: “There is no question that the will in this case was well executed, with all the formal requisites prescribed by the statute.......It is always competent to show in cases of this character, the actual intention, where such acts are done by a testator, and that the intention implied by the physical acts, did not in fact exist. In the absence of evidence to the contrary, the writings having been in the possession of the' decedent, the presumption is that she mutilated them for the purpose of revoking the dispositions contained in the removed part. The presumption goes no further.” In Wikoff’ s Appeal, 15 Pa. 281, the court say: “The very case that the. appellant would establish was ruled in Sutton v. Sutton, 2 Cowp. 812, in which it was held that a will may be good, though other parts of it may have been obliterated by the testator, subsequent to the execution of it.” In Tomlinson’s Estate, 133 Pa. 245, after testator’s death, his will was found in a locked drawer, the key to which, shortly before his death, he had given to a relative, with instructions to deliver it to the executor. Subsequently to the execution of the will, lines had been drawn through seven of the bequests, and the circumstances present raised the presumption that this had been done by the testator. The execution of the will was regularly proved. The paper as thus changed by the testator was held to be his will. In this case, the auditor before whom the questions involved came, in the first instance, says: “It cannot be held that the cancellation or alteration, if such it be, of these bequests, operated as revoking the entire will, but if a revocation, it had only that effect upon the particular bequests themselves. A revocation by obliteration may be either partial or total; where a pen is drawn over part of a will only, a revocation is effected pro tanto, and the unobliterated portions remain in force: Jarmon on Wills, 291. In Cook’s Will, 5 Clark 1, the court cites Roberts v. Round, 3 Hagg. Ecc. 548, which held that when the first part of a will had been mutilated and different parts cut out, Sir John Nicholl, carrying out the principle, says: “This mutilation of the first part, leaving the signature untouched, would not be a total revocation; it would be a revocation of the parts of the devises only.” In Burns v. Burns, 4 S. & R. 295, it is clearly shown that where the question is whether a duly executed will has been revoked, the testimony of a single witness is sufficient to meet and overcome an inference of a purpose to revoke, arising from acts done , upon the paper, by the testator. The court say: “The Act. of Assembly is silent as to revocation in law, such as burning, cancelling, &c., therefore when questions arise on such revocations, they must be proved as other matters of fact, without regard to the form prescribed by the Act of Assembly for the probate • of a will.” On principle and in view of the cited authorities we are unable to agree with counsel for appellants that two witnesses must be produced to show that after the deceased removed the first page of his will, he republished it, re-declared it to be his will. Every requirement of the law touching the execution of a valid will by the decedent is met and complied with in this case, without any attempt at contradiction, and the only controverted question is, whether this legal will was, subsequently to its execution, repealed by the decedent. As we have seen, the law does not provide for any exact measure or character of proof, upon such an issue, ánd the question whether a decedent intended to cancel all or any part of his will is one of common fact to be determined either upon an unaided inspection of what he has done upon the paper, or through such inspection, aided by extrinsic evidence bearing upon his intention. If a consideration of what he had physically done to the will, does not fairly demand a conclusion that he intended to revoke, the paper will be probated without aid from outside facts, and if what he has done upon the paper, standing alone,' indicates a purpose to revoke, such indication and consequent inference may be overcome by evidence of his declarations and conduct negativing such purpose, and this extrinsic proof may be as satisfactorily and sufficiently made by a single witness who is believed, as by two or more. We conclude that the deceased’s lawfully executed will was cancelled only as to the page which he removed subsequently, and that the balance of it as here presented, survives as his will, and as such is entitled to be probated.</p> <p>Charles v. Huber, 78 Pa. 448; Derr v. Greenawalt, 76 Pa. 239, and Simrell’s Est., 154 Pa. 604, relied upon by counsel for appellants, as we understand them, do not at all deal with the question whether a duly executed and valid will had been revoked in whole or in part by acts subsequently done upon it by the testator. In Charles v. Huber, there was a failure to prove by two witnesses the execution of the will, either in the original form, or as altered. In Derr v. Greenawalt, the question presented was not whether a lawfully executed will had •been subsequently revoked in whole or in part, but whether it had been executed originally, as respected the residuary clause, the name of the residuary legatee having been filled in after the will was executed. There was a failure to prove by two witnesses that the name had been written in by the executor or at his direction, and it was therefore held that the proof was insufficient to support the execution of this part of the paper. In Simrell’s Estate, it was undisputed that after the will was duly executed, certain erasures were made, not by the testatrix, but by her daughter, and the daughter alone testified that her action was directed by the testatrix. It was therefore held that these erasures were not duly proved to be a part of the will, and must be ignored.</p> <p>In our case it is regularly proved, without question, that the deceased executed a valid will, and that will, just as he executed it, excepting only the first page which, as the law presumes, he had removed, is presented for probate. For the reasons given we are satisfied that the deceased intended to revoke only the first page, and that the part remaining, and here presented, is his will. Whether some part of it may prove to be unintelligible and therefore not enforceable, because of the absence of the first page, as was suggested at the argument by appellants’ counsel, is a matter of construction that will arise later.</p> <p>The appeal is dismissed and the action of the register of wills in probating the writing propounded for probate as tbe last will and testament of John Sheaffer, deceased, is affirmed.</p> <p>Error assigned was decree dismissing tbe appeal.</p>

Appeal, No. 59, Jan. T., 1912, by defendant, from judgment of C. P. Schuylkill Co., July T., 1909, No. 280, on verdict for plaintiff in case of Catharine Hippie v. The Edison Electric Illuminating Company of Pottsville. Trespass to recover damages for death of plaintiff’s husband. Before Brtjmm, J. At the trial it appeared that the deceased was killed on' June 25, 1908, while at work as a lineman of a telephone company.

Appeal, No. 71, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., May T., 1909, No. 142, on verdict for plaintiff in case of the Point Bridge Company v. Pittsburgh Railways Company. Assumpsit for the use and occupation of a bridge. Before Kennedy, P. J. . At the trial the court permitted the plaintiff under objection and exception to prove the number of fares received by the defendant from cars that crossed over the Point Bridge from 1902 to 1908, inclusive.

Appeal, No. 70, Oct. T., 1912, by defendant, from judgment of C. P. Allegheny Co., May T., 1909, No. 394, on verdict for plaintiff in case of Monongahela Bridge Company v. Pittsburgh Railways Company. Assumpsit against a street railway company for the use and occupation of a bridge. Before Evans, J. At the trial it appeared that the facts were similar to those in Point Bridge Company v. Pittsburgh Railways Co., 240 Pa. 105.

<p>Negligence — Mines and mining — Master and servant — Duty to instruct — Certified mine foreman.</p> <p>1. In an action by a boy eighteen years old against his employer, a coal mining company, to recover damages for personal injuries, the case is for the jury, and a verdict and judgment for plaintiff will be sustained where the testimony of plaintiff corroborated by his other witnesses, although contradicted by the witnesses of the defendant, tends to show that the plaintiff was employed as a mule driver and assigned to his duty by an assistant certified foreman; that while employed, and standing on an iron hook on the side of the car, he was crushed between the car, and a prop or timber on the side of the gangway; that the clearance between the top of the car and the timber at the place of the accident was only about seven inches; that plaintiff was given no instructions or warning when he was assigned to duty as driver; that he had never been in the gangway before, had frequently ridden upon hooks on the side - of the cars, had seen others doing so, and had never been warned against it; that at the time of the accident' he could not ride in front of the car because it was loaded with timbers which projected over the front; and that the gangway was not lighted, except by lights on the harness of the mules, and the lights carried by the miners.</p> <p>2. In such a case the defendant company is not relieved from its duty of instructing and warning a young and inexperienced miner because a certified mine foreman was in charge of the mine.</p> <p>3. A certified mine foreman is simply an employee of the owner or operator of the mine, and occupies the same relative position to the operator as any other employee, except in so far as the statute has specifically imposed on him certain duties in the mine for the protection and safety of the workmen. Hence it is not his duty, in the absence of a statutory requirement, to instruct young or inexperienced workmen.</p>

<p>Principal and agent — Proof of agency — Declaration of agent— Landlord and tenant — Lease.</p> <p>Where a city purchases and demolishes a building, and thereafter is sued by an alleged tenant claiming damages for the loss of his leasehold in a portion of the building, the plaintiff cannot recover where his only evidence is a written lease containing no recitals of ownership and signed by a person merely as agent, with no evidence that the person signing was the agent of the owner, except the declarations of the alleged agent himself.</p>

<p>Trusts and trustees — Base or qualified fee — Restraint on alienation — Rule against perpetuities — Deeds—Construction of deeds— Lease.</p> <p>1. Where a deed is given by the owner of land to trustees for the use and benefit of a horticultural society “without any power on the part of the said society or the said trustees at any time to alienate or encumber the same,’’ and with reversion to the grantor or her heirs “if at any time the said society shall cease to use the said property as above mentioned or cease to exist,” the conditions annexed to the deed are valid and the grantees are bound by them; they are not void on the ground that they are a restraint upon alienation or violate the rule against perpetuities.</p> <p>2. In such a case where the grantor executes a second deed in which she recites the destruction of the society’s building by fire, and a request by the society to her to grant to the trustees the power to sell the property free from the trust, and to invest the proceeds for the use and benefit of the society, and then grants to the trustees free and discharged from all trusts, all her right, title and interest in the land, and by a subsequent and third deed in which she recites the two prior deeds, she restricts the scope of the grant in the second deed so as to require the trustees to reinvest the proceeds of the sale for the same trusts as were in the two former deeds set forth, and the trustees by accepting this last deed acquiesced in the restrictions of the former deeds, thus recited, they are bound by the intention so declared and such conveyance will not be construed to convey a fee simple estate to the society so as to give it a standing to demand an absolute conveyance from the trustees after the death of the grantor. The trustees are still to hold the property if they do not sell it, or the proceeds thereof if they do sell it, subject to the same trusts as were created by the original grant.</p> <p>3. In such a case where the first deed gave to the trustees the power to lease, collect and receive rents and to exercise general supervision over the building, but without power to “sell or convey, alienate, encumber or charge” the property, the trustees do not violate the condition of the deeds by executing a lease of the society’s building for thirty years, as the only means of securing the re-payment of money advanced by persons to re-build the structure after the fire, where it appears that the lease reserved to the society ample accommodations in the building for all its public purposes; and this is especially so where it appears from the recital in the original deed that the purpose of the grant was to establish a perpetual memorial to the grantor’s deceased brother, who had been president of the society.</p> <p>Deeds — Recital—Intention.</p> <p>4. Recitals in a deed are to be considered in determining the true intent and meaning of the parties, and will restrict general words to a narrower meaning if the intent is clear.</p> <p>Deeds — Base fees — Gonditional estates — Strict construction.</p> <p>5. Conditions in a deed creating a base or conditional fee are strictly construed. When an estate or freehold is to be divested and the grantor re-instated the burden is on him who asserts the right to re-enter to show the breach of the precise conditions upon which the estate reverts.</p>

<p>Appeal, No. 339, Jan. T., 1912, by Willard P. Barrows, Trustee iu Bankruptcy of Queen &Company, Inc., from order of C. P. No. 4, Philadelphia Co., March T., 1911, No. 1343, making absolute rule for judgment for want of a sufficient affidavit of defense in case of J. Henry Warren v. Queen & Company, Incorporated, defendant, and William P. Barrows, Trustee in Bankruptcy of Queen & Co., Incorporated (substituted defendant).</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was the order of the court.</p>

<p>Mechanics’ liens — Discharge by judicial sale — Act of June 4, 1901, P. L. 481 — Scire facias sur mechanics’ lien — Bight to proceed after discharge of lien — Jurisdiction of court.</p> <p>1. A mechanics’ lien is discharged by a judicial sale of the real estate bound by the lien. The purchaser at such sale takes the property discharged from the lien, and- the lien claimant is remitted to the fund produced by the sale for the satisfaction of his claim. There is nothing in the mechanics’ lien Act of June 4, 1901, P. L. 431, in conflict with these principles, and section fifty-six of that act expressly provides for resort to the fund by a lien claimant.</p> <p>2; A claimant has no right to proceed to judgment on a scire facias sur mechanics’ lien for the purpose of having the amount of his claim ascertained, when the lien has been destroyed. If no execution can issue on a judgment on the scire facias by reason of the non-existence of the lien, there is no reason for determining in such proceeding the sum due the claimant.</p> <p>3. Where a mechanics’ lien claim was filed against a property covered by a mortgage, under which the property was subsequently sold by the sheriff in foreclosure proceedings, and the claimant, on the day of the sale, sued out a writ of scire facias sur mechanics’ lien, the court had no jurisdiction to proceed with the scire facias, as the mechanics’ lien was destroyed by the sheriff’s sale: It was not too late for the defendant to raise the question of jurisdiction at the trial; the right of the court to adjudicate the cause could be questioned at- any time.</p>

<p>Appeals, Nos. 190 and 191, Jan. T., 1913, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1907, No. 5902,. on verdict for plaintiffs in case of Thomas J. Foley and Mary C. Foley, his wife, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Staples, P. J., specially presiding.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Verdict for Thomas J. Foley for $1,037, subsequently reduced to $800, and for Mary C. Foley for $7,586.19, subsequently reduced to $4,000, upon which verdicts as reduced judgment was entered. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions to the jury.</p>

<p>Negligence — Railroads—Signal torpedoes — Young children — Explosion — Proximate cause — Case for jury.</p> <p>In. an action to recover damages for injuries to a child nine years of age, caused by the explosion of a railroad torpedo used for signalling trains, it appeared that two torpedoes were found by children lying loose on the rails of defendant railroad, which at that point were laid in a public street; that such torpedoes were used by defendant at that place to warn trains in foggy weather, and that they were carried away by the children and one exploded while one of the children was trying to open it, causing the injury complained of. Held, the questions of defendant’s negligence, and the proximate cause of the injury were for the jury, and a judgment of nonsuit was improper.'</p> <p>Mr. Justice Brown dissents.</p>

Appeal, No. 255, Jan. T, 1912, by plaintiffs, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1907, No. 3314, refusing to take off nonsuit in ease of Louis P. Riedenauer and Mary Riedenauer, his wife, in their several respective rights, v. David McMahon. Trespass to recover damages for personal injuries. Before Davis, J. The facts are stated in the opinion of the Supreme Court. The court entered a nonsuit which it subsequently refused to take off.

<p>Replevin — Evidence—Relevancy—Cross-examination — Binding instructions — Damages—Premature issuance of writ — Nominal damages — Instructions to jury — Exemplary damages.</p> <p>1. In an action of replevin to recover certain moving picture films leased to defendant by the plaintiff it appeared that both parties were licensed by the owners of the patents upon the films, the plaintiff to manufacture and lease films to licensed exchanges, the defendant to operate such exchange to sub-let films to licensed exhibitors; that the contract between the patentee and the defendant provided that should the agreement be terminated by the licensor for any breach of condition, the right to possession of all licensed films would twenty days after notice of such termination revert to the licensed manufacturers from whom they had been obtained, and that the pictures should be returned to such manufacturers, “at once after the expiration of that period’’; that each motion picture sought to be recovered was delivered to the defendant in a box containing a label with the condition printed thereon, that the licensee only had the. right to sub-let the motion picture contained in the box while his; license agreement with the patentee remained in effect, and that violation of the condition would entitle the licensor “to immediate possession of this motion picture” ; that a written notice of cancellation of defendant’s license was given by the patentee for violation of the terms of the defendant’s license agreement; and that the writ of replevin was issued one ■day before the expiration of the twenty day period. Plaintiff claimed to recover upon an alleged breach of the condition of the label contract entitling it to immediate possession of the films without waiting for the expiration of the twenty day period, but-, did not prove beyond controversy that the defendant had sub-let any licensed films after the annulment of his authority so to do, or that films admitted by defendant’s witnesses to have been sub-let subsequent to tbe revocation of the license were among those covered by plaintiff’s writ. Held, that the ease was for the jury.</p> <p>2. In such case it is not error for the court to strike out testimony elicited from the defendant on cross examination to the effect that he had other films which he had received from plaintiff, and which he had not been required to return, where such testimony did not clearly tend to support plaintiff’s purpose of refuting the contention that the defendant had been unduly oppressed by the manner in which the writ was executed.</p> <p>3. In such a case questions tending to show an unpleaded breach of a condition of the lease are properly excluded.</p> <p>4. It is error in such a case for the court to permit the defendant to put in evidence writs issued by other plaintiffs against the defendant and served simultaneously with the writ in suit, in support of defendant’s contention that there was undue-oppression at the time of the replevin and that a conspiracy existed between the plaintiff and others to harm the defendant, where the latter failed to produce evidence from which an unlawful combination could be found or to show that he was subject to any unusual oppression.</p> <p>5. In such a case defendant is entitled to actual damages if the writ was prematurely issued and while his recovery would of necessity be limited to the value of such use as he would be entitled to make of the films under the conditions and restrictions of his contract after the date of the cancellation of his license, it cannot be said as a matter of law that they would be merely nominal, nor can they be restricted to one day’s loss, on the theory that the writ would have been good if issued the following day.</p> <p>6. In such a ease it is error for the court to affirm a point to the effect that if the jury finds for the defendant and further finds “that the taking was attended by circumstances of aggravation, vexation and hardship, exemplary damages are allowable’’ where the evidence fails to show special vexation or oppression beyond the inconvenience bound to be caused in the proceeding.</p> <p>7. It is error for the court in such a case to make reference in his charge, and submit an issue to the jury, based upon evidence which has been stricken out, or upon an assumed fact which there is no evidence to sustain.</p>

<p>Negligence — Street railways — Collision—Pedestrian—Contributory negligence.</p> <p>1. Cases of collision of pedestrians with, street cars are not analogous to ordinary right angle collisions between cars and wagons. A pedestrian, having but his own safety to guard, can turn or stop quickly in avoiding a car and if after stepping in front of a car he comes into practically instantaneous contact with it, it matters not what his previous actions may have been. The inference of contributory negligence is irresistible.</p> <p>2. Plaintiff in broad daylight alighted from the south side of an eastbound car of defendant company, and after the car had passed, crossed towards the north side of the street; a west bound car was approaching on the north track, with no obstructions to prevent plaintiff from seeing it. He had advanced about four feet from a position of safety into the centre of the north track when he was struck.- Held, the entry of a nonsuit was correct.</p>

<p>Appeal, No. 181, Jan. T., 1912, by defendant, from decree of C. P. Centre Co., Dec. T., 1910, No. 2, In Equity, granting injunction in case of The Boalsburg Water Company v. The State College Water Company.</p> <p>Bill in equity to restrain appropriation of water of a stream under power of eminent domain. Before Orvis, p. j:</p> <p>At the trial plaintiff offered in evidence the minute book of plaintiff company to show that several leaves were missing and also offered certain exhibits, appearing hereafter, to show corporate action taken by plaintiff company in the condemnation by right of eminent domain of the water of Galbraith Gap Run. Defendant objected to the exhibits. The court overruled the objection and admitted the exhibits, which were as follows:</p> <p>FORM OF STOCKHOLDERS'’ RESOLUTION.</p> <p>At a meeting of a majority of the stockholders of the Boalsburg Water Company, the following resolution was offered by Mr. T. D. Boal:</p> <p>Resolved, That the officers and Board of Directors be directed and authorized to immediately proceed under the right of Eminent Domain to require for the corporate purposes of this Water Company the stream or streams of water and sufficient land adjacent thereto for said corporate purposes upon the property of Henry Reitz, situate in Harris Township, Centre County, bounded and described as follows, to wit:</p> <p>(Here insert description of whole tract of land.)</p> <p>To wit, on a tract of several acres recently purchased from the I. Tressler Estate and owned by Henry Reitz, on which was situated formerly a saw mill.</p> <p>Said part to be so appropriated being bounded and described as follows:</p> <p>(Here insert description of stream, say a strip of about six feet wide on either side.)</p> <p>(6) six feet on either side of said stream for a distance of (50) fifty feet along each bank as indicated by four pine stakes and further as may be required for the pipe connection.</p> <p>Said motion having been seconded was carried by a unanimous vote of the stockholders present, they being a majority of holders of said stock.</p> <p>FORM OF RESOLUTION OF BOARD OF DIRECTORS.</p> <p>Pursuant to a meeting of a majority of the stockholders of the Boalsburg Water Company, held on the 11th day of April, A. D. 1907, the Board of Directors passed the following resolution: Said Board having convened after notice for the purpose of considering said special matter on the 11th day of April, 1907.</p> <p>Resolved, That this Company obtain, for its corporate purposes, the water of the. stream or streams situate upon the property of Henry Reitz, in Harris Township, Centre County; said streams being known as (Here insert names of streams) sources of Spring Creek, Galbraith’s Run, Spruce Gap Run, Corner Run and sufficient land adjacent thereto for the proper exercise of the corporate purposes of this Company; said tract of land, upon which said stream or streams are so situated, being bounded and described as follows: (Here insert approximated description of whole tract.) To wit, on a tract of several acres recently purchased from the I. Tressler Estate and now owned by Henry Reitz, on which was situated formerly a saw mill, and the said streams and land to be occupied by them being bounded and described as follows, to wit: (Here insert approximate description of the portion of streams appropriated, and sufficient land, say six feet on either side.)</p> <p>(6) six feet on either side of said stream for a distance of (50) fifty feet along each bank as indicated by four pine stakes and further as may be required for the pipe connection, and the President and Secretary of this Company are hereby authorized and instructed to enter upon said premises and to take proper steps to have the .same condemned by a proceeding under the right of eminent domain, and that the damages of Henry Reitz be assessed by a proper jury of view.</p> <p>Notice of said resolution and of said entry and all purposes of said condemnation to be given to the said Henry Reitz.</p> <p>Motion was made by Mr. T. D. Boal, seconded by Mr. J. A. Fortney.</p> <p>Affirmative votes, Mr. J. M. Wieland.</p> <p>Negative votes, Mr. were none.</p> <p>Motion carried.</p> <p>J. M. Wieland,</p> <p>(President.)</p> <p>J. A. Fortney,</p> <p>(Secretary.)</p> <p>Boalsburg, May 25th, 1907.</p> <p>At a meeting regularly called of the Boalsburg Water Co., J. A. Fortney & T. D. Boal were instructed to make a formal location for a water right on Spring Creek in Galbraith’s Gap, on the land of Henry Reitz, obtaining his permission so to do. And said Boal & Fortney are to make this location within one month from date, and take such steps as will render such action legal some time during the ensuing year from said location.</p> <p>Signed</p> <p>J. W. Wheel an Tres. & Sect.</p> <p>Theodore Davis Boal,</p> <p>John A. Fortney</p> <p>Preasant & this meeting</p> <p>Approved above action</p> <p>G. W. Ishler.</p> <p>22nd June, 1907.</p> <p>J. A. Fortney and T. D. Boal report that on June 21st, 1907, as instructed, they made a final location on the Spring Creek land of Henry Reitz with his consent for a water right of the Boalsburg Water Co. as instructed by the meeting of May 25th, 1907, and they will record their action before June 21st, 1908, as instructed.</p> <p>John A. Fortney,</p> <p>Theodore Davis Boal.</p> <p>The court found that corporate action was taken as indicated in the exhibits and a report made of the location of the waters appropriated as indicated, and that said report was accepted by the plaintiff company on June 22, 1907. The court further found that on June 8th, 1908, Henry Reitz and Ellen Reitz, his wife, executed and delivered to The Boalsburg Water Company a certain agreement dated June 8th, 1908, and recorded in the office for the recording of deeds, &c., in and for Centre County, on June 12th, 1908, which agreement reads as follows:</p> <p>“Boalsburg, Pennsylvania, 8th June, 1908. Whereas, The Boalsburg Water Company have located and relocated for the use of the village of Boalsburg a water right on the property along Spring Creek now belonging to me and formerly to Isaac Tressler in Galbraith’s Gap, said location being made for the public good by said incorporated Boalsburg Water Company, I do now in consideration of payment being made to me for all damages done to my property in damming and ditching, renew said premises last given verbally June 21, 1907, to maintain said location, giving me in consideration therefor all the water I may need for my domestic use, it being further definitely agreed that said location is only for the use of the public utility known as the Boalsburg Water Company and no separate sale can be made of this location without my consent.”</p> <p>On September 16th, 1908, the said Henry Reitz and Ellen, his wife, executed and delivered their deed to The Boalsburg Water Company, dated September 16th, 1908, and recorded September 23rd, 1908, wherein and whereby the said Henry Reitz and Ellen, his wife, for and in consideration of the sum of $250 then paid, in settlement of the damages incurred by the sáid Henry Reitz, subject to the agreement recited in the next preceding request, conveyed and confirmed the premises mentioned in said deed and the rights therein defined, as shown by the following language quoted from the said deed, viz:</p> <p>“Have granted, bargained, sold, aliened, enfeoffed, released, conveyed and confirmed, and by these presents do grant, bargain, sell, alien, enfeoff, release, convey and confirm, unto the said party of the second part, viz, The Boalsburg Water Co., their successors and assigns, the right to take as much water as may be required for their corporate purposes now existing or hereinafter to be acquired or imposed by law or by the demands of their customers, from a certain stream in Galbraith’s Gap, Harris Township, Centre County, Pennsylvania, between what is commonly known as Tussey Mountain on the west and Bald Knob on the east, together with the right to occupy and use a certain tract of land two miles east of the town of Boalsburg, containing one acre and thirty-two perches, surveyed for the Boalsburg Water Co. Sept. 4, A. D. 1908, by W. A. Murray, the same being bounded and described approximately as follows as shown by draft recorded herewith: Beginning at a post near an old tram road, extending thence in a direction north 10 degrees and 18 perches to another post near said old tram road, extending thence north 64 degrees east 10 perches to a post near an old race running from a saw mill; extending thence south 15 degrees west 21 perches to a post and thence south 74 degrees west 9 and 5-10 perches to the place of beginning, together with all such ground as may be necessary to build additional reservoir and lay pipes therefrom across said lands to the patrons or customers of said Water Company. It being hereby agreed and understood by and between the parties that this grant is intended to convey unto the party of the second part, subject to the agreement heretofore made, every right that could be acquired by the party of the second part by a condemnation proceeding under the right of eminent domain. To have and to hold the said right together with such premises as are hereinbefore described with all and singular the appurtenances thereto, unto the party of. the second part, their successors and assigns, to and for the only proper use, benefit and behoof for the corporate purposes of the said party of the second part, their successors and assigns forever. And the said parties of the first part, for themselves, their heirs, executors and administrators, do by these presents covenant, grant and agree to and with the party of the second part, their successors and assigns, that they, the parties of the first part, their heirs and assigns, all and singular the rights and privileges and premises hereinabove described and granted or mentioned and intended so to .be, with the appurtenances necessary for the corporate purposes of the party of the second part, their heirs and assigns, unto the party of the second part, their successors and assigns, against the said parties of the first part and their heirs and against all and every other person or persons whomsoever lawfully claiming or to claim the same, or any part thereof shall and will by these presents warrant and forever defend.”</p> <p>Other facts are sufficiently stated in the opinion of the Supreme Court.</p> <p>The court made a decree granting an injunction restraining defendant company from taking any of the waters of Galbraith’s Gap Bun. Defendant appealed.</p> <p>Errors assigned were various rulings on fact and law and the decree of. the court.</p>

<p>Appeal, No. 261, Jan. T., 1913, by plaintiff, from decree of C. P. Chester Co., In Equity, No. 547, dismissing bill in case of Commonwealth of Pennsylvania v. Charles B. Kennedy, individually and as manager of the Devon Sewage Company, Edward T. Stotesbury, individually, and Lawrence T. Paul, Edward T. Stotesbury and Herman Dereijm, Trustees, and Frank W. Paul, Edward T, Stotesbury and A. J. Drexel Paul, Executors of the Estate of James W. Paul, Jr., deceased; Herman Wendell, Frederick H. Treat and William T. Hunter, individually, and as president of the Devon Drainage Association, a corporation, and the Devon Drainage Association.</p> <p>Bill in equity to restrain the discharge of sewage into Darby Creek. Before Hemphill, P. J., and Butler, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court made a decree dismissing the bill. Plaintiff appealed.</p> <p>Errors assigned were various rulings on facts and law and the decree of the court,</p>

<p>Negligence — Care of premises — Open pit — Duty toward licensee —Evidence—Nonsuit.</p> <p>1. In an action to recover damages for death, it was held that.a nonsuit was properly entered where it appeared that plaintiff’s decedent, a woman, for purposes exclusively her own, gained admission after dark to the plant of a large and partially unused steel works, to find her father who was a workman employed at the further end of the plant, and being unfamiliar with the surroundings started down a path which, if pursued, would have led her in safety to her destination, but wandered from the path and followed a track in the snow leading to an abandoned section of the plant, where she fell into a deep pit in the darkness, receiving injuries which caused her death. If the decedent were a trespasser, she took the risk of injury unless wantonly or intentionally inflicted, and if she were a licensee, no negligence was shown and the entry of a nonsuit was proper.</p> <p>2. In such case the court committed no error in striking from the record testimony to the effect that the decedent had been instructed by a watchman as to the direction in which she should go, where' there was no evidence whatever to show what, if any, authority the watchman had to admit strangers to the plant under such circumstances.</p> <p>3. In such case the court committed no error in excluding testimony tending to show that people not employed in the plant were allowed to go through the same at night along the path taken by the decedent, where there was no claim made that the decedent had any knowledge whatever of any such use of the path, or had relied upon the fact that it- was open to outsiders.</p>

<p>Appeal, No. 256, Jan. ,T-> 1.912, by defendant, from judgment of C. P. Lebanon Co., Sept. T., 1911, No. 4, for plaintiff for want of a sufficient. affidavit of defense in case of The President, Managers and Company, of the Berks and Dauphin Turnpike Road v. The American Telegraph and Telephone Company.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Henry, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court made absolute a rule for judgment for want of a sufficient affidavit of defense. Plaintiff appealed.</p> <p>Error assigned was the action of the court in entering judgment.</p>

<p>Appeal, No. 12, Jan. T., 1913, by plaintiff, from decree of C. P. Schuylkill Co., In Equity, Nov. T., 1912, No. 7, dismissing bill in case of James J. McGarrity v. John McQuail and Andrew Ruscko, Patrick Connelly, Felix. Sharpe, John Norris and James Leary, School Directors of the School District of the Borough of New Philadelphia.</p> <p>Bill in equity to restrain defendant from acting as tax collector of a school district. Before Koch, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court made a decree dismissing the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Contracts — Coal lease — Mines and mining — Construction—Liability for taxes — Implied contracts — Money paid for another’s use —Voluntary and involuntary payments — Full knowledge of facts— Dual agent.</p> <p>1. A coal lease demising and letting “all the merchantable anthracite coal in, upon or under” certain described tracts, and further providing that the lease was intended to include “all the veins of coal on said premises which are of such thickness and quality as will after paying for mining and transporting the same to the New York market, yield a profit to the said party of the second part equal to the average profit made for the time being by the Delaware, Lackawanna and Western Railroad Company upon the coal by said company mined in the townships of Blakely and Providence in said County of Luzerne” constitutes a sale of the coal in place and operates as a severance of the same from the surface, thereby creating a divided ownership 'between the surface and the minerals.</p> <p>2. In such case the lessee, who becomes the owner of the coal in place, is chargeable with taxes on said coal from the date of the sale, unless otherwise agreed. As between vendor and vendee, the owner, legal or equitable, of real estate is liable for taxés assessed subsequent to the sale.</p> <p>3. Where in such case the lease covered two tracts of land, a larger and a smaller tract, the mere fact that the lease provided that the lessee should pay all taxes assessed on the larger tract, and also all taxes assessed on the works or improvements made under the lease on other land embraced in the lease, and all United States Government or State imposts or duties imposed on the coal mined and sent away under the lease, and was silent as to the payment of taxes on coal in place in the smaller tract, does not overcome the presumption of law that the taxes on coal underlying such smaller tract are to be paid by the lessee as owner thereof. The principle expressio unius est exclusio alterius does not in such case apply, 'especially as the extensive rights acquired by the lessee in the larger tract afforded a reason for the provision in the agreement that the lessee should pay all taxes on that tract, including those assessed against the surface as well as the coal.</p> <p>4. In such case the fact that the lessors had without objection paid the taxes on the coal underlying the smaller tract for some years, does not justify the court in construing the lease contrary to its clear and unequivocal terms. It is only when a writing is equivocal or obscure that the court may interpret it in accordance with the conduct of the parties.</p> <p>5. Where in such ease the lessors of the coal land, voluntarily for some years, with a full knowledge of the facts, paid taxes on the smaller tract, they cannot recover from the lessee the taxes so paid, on the theory of an implied contract to repay the same. Where, however, the lessors discovered that, under the terms of the lease, they were not required to pay the taxes on the smaller tract and protested against further doing so, but nevertheless paid the same upon refusal of defendant lessee to pay, in order to save penalties and to avoid the risk of seizure of their property, the money thus paid was not paid voluntarily but under compulsion and may be recovered from the defendant.</p> <p>6. Where in such case it appeared that the knowledge of.the plaintiffs of all the facts during the period'when they paid the taxes voluntarily had been acquired through an agent, who had acted for both parties' in good faith, believing that under the proper construction of the lease the plaintiffs were responsible for-the taxes, it cannot be successfully claimed that the plaintiffs paid without knowledge of the facts, merely because the agent acted for both parties, particularly where it appears that they did not except to a conclusion of law found by the court, to the effect that the payments were voluntary on the part of the agent acting in good faith, without collusion, and within the scope of his authority, and that the plaintiffs were bound by such payments.</p>

<p>Appeal, No. 11, Jan. T., 1913, by defendants, from decree of C. P. Lackawanna Co., In Equity, March T., 1912, No. 6, granting injunction-in case of Kazimer Novickas, between Pius Novickas, Matencas Mardosa and Stanis Urbanas for themselves and all other members of St. Joseph’s Lithuanian Catholic Congregation of the City of Scranton, v. Andrew Krauczunas, John Appn, John Siwaka, Anthony Swirukis, Charles Cusick, John Jurkis, Adam Grudis, Frank Palutis, William Antonowicz, Francis Hodur and Stanislaus Mickiewicz (original defendants), and William Sartonowicz, Anthony Aukszciunas, and Frank Marcinkiewicz, committee permitted to intervene, claiming to represent St. Joseph’s Lithuanian Catholic Congregation of the City of Scranton, defendants and appellants.</p> <p>Bill in equity to restrain conduct of religious services. in violation of church law in a Roman Catholic Church. Before Newcomb, J.</p> <p>The facts are stated in the opinion of the Supreme Court and in Krauczunas v. Hoban, 221 Pa. 213, and in Mazaika v. Krauczunas, 233 Pa. 138.</p> <p>The court made a decree “That the said defendants, Reverend Francis Hodur and Stanislaus Mickiewicz, their agents, workmen, laborers and servants, and all and every one of them, be and are permanently enjoined and restrained from preaching, conducting religious worship, or in any wise officiating as ministers in St. Joseph’s Lithuanian Catholic Church at Scranton, Pa., and occupying or using the said church or the property of said congregation, and intermeddling in any manner with the temporal affairs of said congregation.</p> <p>“That the defendants, Andrew Krauczunas, John Appn, John Siwaka, Anthony Swirukis, Charles Cusik, John Jurkis, Adam Grudis, Frank Palutis and William Antonovicz, their agents, workmen, laborers and servants, and all and every one of them, be and are permanently enjoined and restrained from installing in the church of St. Joseph’s Lithuanian Catholic Congregation situate on lots numbers 11, 12 and 13 on North Main ayenue in the City of Scranton, Pa., the said Reverend Francis Hodur, Reverend Stanislaus Mickiewicz, or any pastor or minister other than a regularly ordained priest of the Catholic Church in good standing; from establishing any form of worship therein other than that prescribed and authorized by said Catholic Church through a regularly ordained priest in good standing; from, interfering with or obstructing the proper function of any regular priest or minister of the said Catholic-Church whom the proper authorities of said Catholic Church have appointed, or may appoint, as pastor of said church and congregation; and diverting said church and property of said congregation to any form of public worship other than that prescribed and authorized by said Catholic Church.”</p> <p>Defendants appealed.</p> <p>Errors assigned were various rulings on fact and law and the decree of the court.</p>

<p>Criminal law — Manslaughter—Remarles of counsel — Reference to facts not in evidence — Refusal to withdraw juror — Practice, O. and T. — Recording remarles.</p> <p>1. When remarks to the jury are made by counsel to •which objection is made, it is the duty of the court when requested to direct the stenographer to place upon the record the remarks as the court understood them; failure to do so is error. In such case the counsel may place the remarks on the record by affidavit.</p> <p>2. In the trial of a ease it is error for counsel to state his own knowledge of facts, unless he has testified thereto as 'a witness, or to insinuate that he has knowledge of facts which are calculated to prejudice the opposite party.</p> <p>3. In the trial of an indictment for murder it is highly objectionable for the district attforney to say to the jury, referring to the flight and return of the defendant, “I will not say anything about his flight or- his return, as there are some things between the defendant’s counsel......and the district attorney which if divulged would certainly lead to his conviction,” or “they argue that his surrender is a token of innocence......It is not for me to say what passed' between his counsel......and myself and whether that confidence should or could secure his acquittal or conviction.” The district attorney is a quasi-judicial officer and should not press upon the jury any deductions that are not strictly legitimate. If he does so a juror must be withdrawn.</p>

<p>Wills — Construction—Meaning of “personal things’’ — Oral evidence.</p> <p>Testatrix left the following holographic will: • “I, Anna H. Arnold, in case of my death give my portion of the household goods to my sister, Ella R. Arnold. If she is not living, they are to be given to my sister Mary Arnold Babcock. My jewelry and other personal things, are to be divided equally among my two sisters, Ella R. Arnold and Mary Arnold Babcock.” Her estate consisted of corporate stocks and bonds and cash in bank- appraised at $158,750.15, and household furniture, jewelry and clothing appraised at $300. Her next of kin were the two sisters named in the will and three brothers; the two sisters were very close and attentive to her, whereas she had maintained no intimate relations with her brothers for several years. A trust company had -entire charge of the property. Held, (1) evidence was properly admitted to show that testatrix habitually referred to the constituents of her estate in the hands of the trust company as her “things’’; (2) all her personal property passed under, the will to her two sisters.</p>

<p>Wills — Construction—“Children”—Hule in ■Shelley’s case — Estate tail — Act of April S7, 1855, P. L. 868.</p> <p>Testator by will provided as follows: “The resadue of my Estate I wil and bequeath to my Daughter Martha Maria now married to Dr. John C. Gillin during her lifetime and at her Dath for the benefit of her children if their should be any living and in case their should be no children of hers or aney Heirs from any of her children then I wish that the said Dr. John C. Gillin is to devide the one half of the residue of my Estate between my Brothers and Sisters or thier Heirs.’’ Held, the estate conveyed to Martha Maria Gilland, under the will, was an estate tail, which was converted into a fee by the statute.</p>

<p>Appeal, No. 338, Jan. T., 1912, by Lehigh Valley Railroad Company, from judgment of C. P.. Bradford Co., May T., 1908, No. 67, on verdict for plaintiff in case of L. Gr. Marshall v. John F. Dolan and Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for personal injuries and injuries to property. Before Johnson, P. J., specially presiding. Before the trial the service on John F. Dolan was set aside and the suit proceeded against the railroad company alone.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000. Defendants made a motion for judgment n. o. v., which was overruled and judgment entered on the verdict. Defendants appealed.</p> <p>Errors assigned were various rulings on evidence and instructions to the jury and refusal of judgment for defendants n. o. v.</p>

Appeal, No. 262, Jan. T;, 1912, by Anna S. Truitt, from- decree of O. C. Philadelphia Co., Jan. T., 1912, No. 184, dismissing exceptions to adjudication in Estate of Samuel E. Stokes, deceased. Exceptions to adjudication. The opinion of the Supreme Court states the case.

<p>Appeal, No. 263, Jan. T., 1912, by Fidelity Trust .Company, Florence S. Stokes and B. Marshall Truitt, Trustees under the will of Samuel E. Stokes, deceased, from decree of O. C. Philadelphia Co., Jan. T., 1912, No. 184, dismissing exceptions to adjudication in Estate of Samuel E. Stokes, deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear in Stoke’s Estate, No. 1, 240 Pa. 277, and in the following abstract from the notice to stockholders of the Lehigh Valley Eailroad Company in connection with the dividend at issue in the case:—</p> <p>The board of directors of the Lehigh Valley Eailroad Company, at a meeting held January 11, 1912, authorized an appropriation of $6,060,800 out of the accumulated surplus of the company and the distribution of the same as a dividend on February 26, 1912, pro rata to such common and preferred stockholders of the Le-high Valley Eailroad Company as are recorded on the books of the company at three o’clock P. M., this day; such distribution being equivalent to ten per cent, of the outstanding capital stock of the company.</p> <p>The board of directors of the Lehigh Valley Coal Company, at a meeting held January 11, 1912, authorized the organization of a new corporation, under the láws of New Jersey, to be called “Lehigh Valley Coal Sales Company,” with an authorized capital stock of $10,-000,000, consisting of 200,000 shares of the par value of $50 each, of which 121,216 shares, of the par value of $6,060,800 will be issued immediately, the balance being reserved for such future needs as may arise.</p> <p>The Lehigh Valley Coal Company proposes to enter into a contract with the sales company, when organized, for the purpose of having the latter purchase and sell, during a time and upon equitable terms which will be fixed in said contract, such coal as, during said time, shall be mined, purchased, owned or otherwise acquired by the Lehigh Valley Coal Company and affiliated companies. It is further expected that under such contract the coal sales company will thereafter conduct generally all such matters as are now conducted by the Lehigh Valley Coal Company incident to the transporting and marketing of its coal. The time and terms of said contract have not been settled and cannot be settled until the company has been organized and the proper measures have been taken for settling of terms and executing the contract.</p> <p>Steps are now being taken for the incorporation of the Lehigh Valley Coal Sales Company, and the same will be organized at an early date.</p> <p>The Lehigh Valley Coal Company has further authorized a subscription for said 121,216 shares of the capital stock of the Lehigh Valley Coal Sales Company by the common and preferred stockholders of the Lehigh Valley Railroad Company, to whom is given the privilege of subscribing for an amount equivalent to ten per cent, of their holdings as recorded on the books of the railroad company at three o’clock P. M., January 19, 1912.</p> <p>The auditing judge, Anderson, J., awarded certain assets of the estate, consisting of a dividend on stock of the Lehigh Valley Railroad Company, amounting to $855 in the proportions of $87.50 to the life tenants under a trust created by the testator and the remainder to the principal fund. The Fidelity Trust Company, Florence S. Stokes and R. Marshall Truitt, trustees under the will of the decedent, filed exceptions to that part of the adjudication awarding the proportion of $87.50 of the dividend to the life tenants, which exceptions were dismissed in an opinion by Lamorblle, J.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p>

Appeal, No. 393, Jan. T., 1912, by plaintiff, from order of C. P., Delaware Co., Dec. T., 1909, No. 183, refusing to take off nonsuit in case of Emma Lañaban v. Arasapha Manufacturing Company. Trespass to recover damages for death of plaintiff’s husband. Before Johnson, P. J., The opinion of the Supreme Court states the case. Error assigned, among others, was in entering and refusing to take off nonsuit.

Appeal, No. 203, Jan. T., 1912, by complainant, from decree of C. P. Schuylkill Co., July T., 1907, No. 3, in equity, decreeing specific performance in case of Elizabeth Evans, now Elizabeth Holman, v. Julia Quinlan, Timothy Quinlan, her husband, and William C. Devitt. Proceeding in equity by a bill and cross bill praying, respectively, for the cancellation of a deed and posses-, sion of premises, and for specific performance.

Appeal, No. 408, Jan. T., 1912, by Warren H. Fenstermacher, Administrator of Isaac S. Spatz, deceased, who was trustee of Isaac S. Mohn under the will of John H. Spatz, deceased, from decree of O. C. Berks Co., March T., 1912, No. 37, upon exceptions to the adjudication in Estate of John H. Spatz, deceased. Exceptions to adjudication. Before Bland, P. J. The facts are stated in the opinion of the Supreme Court. Error assigned, inter alia, was to decree of court.

<p>Wills — Construction—Estate tail — Estate in fee — Buie in Shelley’s case — Act of April B7,1855, P. L. 868.</p> <p>A testator by will provided tbat after tbe death of his widow, there should be “an equal division between my son and daughter, ; he keeping all money in his hand and only paying her annual interest or such amounts as may be necessary for her comfort in life,” the daughter’s share to “remain in the property as long as she lives and after her death it shall go to her heirs and assigns. If none exists it shall go to her brother Hiram, or his heirs.’’ Held, the daughter took a fee in realty constituting a part of the estate under the rule in Shelley’s case and the Act of April 27, 1855, P. L. 368.</p>

<p>Appeals, Nos. 31 and 73, Jan. T., 1913, by defendant, from judgment of C. P. Bucks Co., Dec. T., 1912, No. 2, in case of Adam Scheidt Brewing Company v. John Schuster.</p> <p>Alias fieri facias sur judgment. Before Byan, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in discharging the rule to show cause why the sheriff’s sale should not be set aside and in dismissing the exceptions to the sheriff’s sale and acknowledgment to deed therefor.</p>

Appeal, No, 275, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1910, No. 3161, on directed verdict for defendants in tbe case of Harper & Brother Company v. Joseph T. Jackson, trading as J. T. Jackson Company. Assumpsit to recover damages for eviction. Before Ormerod, J. Opinion of the Supreme Court states the facts. Verdict for the defendant by direction of the court and judgment thereon.

Appeal, No. 358, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 1, Philadelphia County, Jan. T., 1909, No. 671, granting nonsuit in case of Alice M. Zimmerman v. Adams Express Company. Trespass to recover damages for death of plaintiff’s husband. Before Kinsey, J. The opinion of the Supreme Court states the facts. The court entered a nonsuit which it subsequently refused to take off. Error assigned was in refusing to take off nonsuit.

<p>Appeal, No. 312, Jan. T., 1912, by plaintiffs, from judgment of C. P. No. 4, Philadelphia Co., June T., 1909, No. 2556, refusing to take off nonsuit in case of Albert C. Eldridge and William C. Eldridge v. Fell Manufacturing Company.</p> <p>Trespass to recover damages for personal injuries. Before Willson, P. J.</p> <p>Plaintiff had his right hand injured on September 25, 1907, by the fall of a knife on a machine at which he was working in defendant company’s factory.</p> <p>When plaintiffs’ witness, Herman H. Nast, was on the stand, he was asked:</p> <p>Q. I notice in that statement you say something about a man named Katz operating this machine in addition to Eldridge, was there any complaint made to you, or did you hear of the machine having repeated with Katz while you were in the employ of the Fell Manufacturing Company as superintendent, prior to the happening of this accident?</p> <p>Objected to. Objection sustained. Exception noted for plaintiff by direction of the court.</p> <p>Q. Did Katz, who operated this machine, complain to you while you were employed by the Fell Manufacturing Company as superintendent, before the happening of this accident to Eldridge, that the machine had repeated on him?</p> <p>Objected to. Objection sustained. Exception noted for plaintiff by direction of the court. (3)</p> <p>When plaintiffs* witness, Joseph Koeschick, was on the stand he was asked:</p> <p>Q. Had you heard a complaint made to Mr. Nast, while he was superintendent for the E. O. Fell Manufacturing Company, before the happening of this accident, that the machine had repeated?</p> <p>Objected to. Objection sustained. Exception noted for plaintiff by direction of the court. (4)</p> <p>The court directed a nonsuit which it subsequently, on motion, refused to take off.</p> <p>Errors assigned were (1) refusal to remove nonsuit; (3, 4) rulings on evidence as above.</p>

<p>Promissory notes — Action against endorser — Protest—Certificate of notary — Proof of notice — Negotiable Instrument Act of May 16,1901, P. L. m.</p> <p>In an action by the holder of a promissory note against an endorser, where plaintiff offers the note in evidence, together with the certificate of the notary by whom protest has been made, the certificate stating that the notary had protested the note and notified the maker and endorsers of the presentation, demand and refusal, and this is followed by proof that after protesting the note, the notary had mailed, among others, a notice to the defendant endorser at a certain post office, the plaintiff is not under obligations to furnish further proof that the post office station named was the post office to which notice should have been sent under the Negotiable Instrument Act of May 16, 1901, P. L. 194, and in the absence of evidence by the defendant, the court acts properly in directing a verdipt for the plaintiff. The certification of the notary that he had given notice to the defendant raised the presumption, since his act was an official act, that it was properly performed and his certificate, standing alone, entitled the plaintiff to go to the jury. Further proof that the notice was mailed to a certain post office station was not contradictory of nor inconsistent with the notary’s official certificate of notice to the endorser and did not destroy the prima facie effect of the certificate nor repel the presumption to which it gave rise. ,</p>

<p>Insurance — Life insurance — Application—Mis-statement of facts —Medical attendance — Court and jury.</p> <p>1. Where it appears that au insured has made false statements in an application for a life insurance policy, the question of the materiality of such statements must be submitted to the jury if they are doubtful. If, however, the statements are palpably and manifestly material to the risk, it is the duty of the court to rule as a matter of law that they are material.</p> <p>2. Statements in an application for a life insurance policy, as to when the applicant was last attended by a physician, and for what cause, are material to the risk. Where, therefore, it appeared in an action upon a life insurance policy that the applicant had omitted to give the name of a physician who had attended him within a short time prior to the application, that he had consulted such physician for symptoms indicating a serious disorder, possibly connected with the illness which caused his death, the court should have declared as a matter of law that the false statements were material and the policy was void under a clause thereof, providing that it should he void if the statements contained in the application were untrue. The fact that the visits to the physician whose name was omitted were made during, and because of the absence of the insured’s family physician, whose name was mentioned, as having been consulted, is not a material circumstance. The insured was not excused from mentioning the name because of this fact.</p>

<p>Contracts — Municipal bonds — Agreement to purchase — Cash deposit — Liquidated damages.</p> <p>1. Where a bidder for an entire issue of municipal bonds deposited with his bid a certified check for $5,500, being five per cent, of the amount of the bid, with an agreement that the same might be retained by the city as liquidated damages, if he failed to fulfill the terms of his bid, and the bidder refused to accept and pay for the bonds, because of a doubt as to their validity, the city is bound to return the whole amount of the cheek, if it appears that no loss had in fact been suffered.</p> <p>2. In such a case the amount of the deposit is so out of proportion to any damages which might have been reasonably anticipated by a default of the bidder, that the parties will not be deemed to have intended anything more than compensation or indemnity.</p> <p>Municipalities — Increase of indebtedness — Over two per cent, of assessed valuation — Notice of election — Weekly advertisements— Failure to advertise — Illegality of bonds.</p> <p>3. Municipal bonds representing an increase of indebtedness beyond two per cent, of the assessed valuation of taxable property are valid only as the provisions of .the Act of April 20, 1874, P. L. 65, are complied with, and publication of notice of an election under the act in three daily newspapers, not continuously in any one, but from time to time in each, during the required period, in such manner that twelve days elapsed during which no publication of the notice appeared, does not satisfy the statutory requirement that “thirty days’ notice shall be given by weekly advertisement.”</p>

Appeal, No. 205, Jan. T., 1912, by defendant, from judgment of C. P. Schuylkill Co., March T., 1911, No. 73, on verdict for plaintiff in case of Effie E. Scott v. The Pennsylvania Casualty Co. Assumpsit of policy of accident insurance. Before Bbumm, J. The opinion of the Supreme Court states the case. Verdict and judgment for plaintiff for $3,212.50. Defendant appealed. Errors assigned were various rulings on evidence and instructions to the jury.

<p>Equity — Contracts—Adequate remedy at law — Misjoinder of parties.</p> <p>. 1. A hill in equity against the school directors of a township school district is properly dismissed on the ground of an adequate remedy at law, where from the material parts of the bill it appears that the plaintiffs claim that they had been duly and legally elected by the school board as teachers of certain schools in the township at a fixed compensation and for a specified term, that they entered upon the performance of their duties, and that after teaching for a portion of the time specified they were dismissed from their places as teachers without notice and without any cause • therefor;</p> <p>2. Such a bill is clearly demurrable on the ground of misjoinder of parties where its averments disclose an employment of each of four teachers respectively to teach four different school^ in a township.</p>

<p>Appeal, No. 1, Jan. T., 1913, by defendant, from judgment of C. P. Schuylkill Co., Nov. T., 1906, No. 28, on verdict for plaintiff in case of William H. Simmons v. The Lehigh Valley Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Brumm, J. See Reeder v. Lehigh Valley Coal Co., 231 Pa. 563, and Pauza v. Lehigh Valley Coal Co., 231 Pa. 577.</p> <p>From the record it appeared that the Lehigh Valley Coal Company, in August, 1904, installed in a tunnel used for transportation of coal and other material at its Primrose Colliery an electric haulage system. This tunnel was driven through the rock and was about two hundred feet long, ten feet wide and seven feet high. For a distance of from forty to fifty feet on the west or high side and near the middle of the tunnel, the tracks by reason of a curve in the tunnel were brought closer to the rib than at the ends of the tunnel. For the remaining distance on the high side, in either direction, there was room to permit persons to pass moving cars with safety. The passageway was well drained and the entire space between the rail and the rib or side of the tunnel on the west or high side, except at the point where the tracks came closer to the rib, was free from obstruction and dry. On the east side or low side of the tunnel there was a space between the side of the cars and the rib or side of the tunnel of more than two feet for the entire length of the tunnel. There was a drain along the east or low side of the tunnel through which the. mine water was conducted to the sump. A trolley wire was suspended over the tracks by means of insulating brackets or mine bodies about four inches from the top or roof of the tunnel, and passed over the cars about one foot from the west side of the cars. From the time this electric haulage system was installed and up to and after the accident this tunnel was used daily as a passageway by one hundred and fifty men, on an average, and powder was carried daily through the tunnel.</p> <p>About seven o’clock on the morning of September 16, 1905, the plaintiff, in company with a number of other employees, who received powder at the foot of the slope, in going to his place of work, met a loaded trip of five or six cars, standing temporarily near the mouth of the tunnel and ready for. hoisting as soon as the work at the colliery commenced that morning. The men passed in on the high or west side of the tunnel and along the trip of cars, until they came to a point where the space between the cars and the rib or side of the tunnel narrowed and they could not proceed further. Some of the men turned and went back the way they had come, while others, carrying powder, undertook to pass between the cars and under the trolley wire which extended over the cars. While thus engaged one or more of the kegs of powder carried by the men was exploded and the plaintiff, with others, was severely burned.</p> <p>Verdict for plaintiff for $9,579.50, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions and refusal to enter judgment for defendant n. o. v.</p>

<p>Criminal law — Murder—Summoning jurors — Act of April H, 188Jf, P. L. 888 — Selection of jury — Challenge for cause — Motion to quash array — Charge of court.</p> <p>1. The provisions of the Act of April 14, 1834, P. L. 333, relating to the method of* summoning jurors, are directory in character. They do not prescribe or bear upon the substance of any duty, but merely upon the manner of its performance. It is no ground for quashing an array of jurors, therefore, that the sheriff had summoned them by mail instead of* by delivering separate tickets to each in the manner prescribed by the act, where it appeared that all the jurors summoned except six acknowledged receipt of the notices and were present in court when the case was called for trial. It is not ground for challenging an array of. jurors that some of them do not attend, especially where, ¿s in this case,'more than the statutory number of forty-eight were actually present.</p> <p>2. It is proper for the court in the trial of a murder case to direct the jurors to be examined in accordance with the Act of March 6, 1901, P. L. 16, although the method of examination designated by that act may be contrary to a. custom previously obtaining in the courts of the .said county.</p> <p>3. In summoning jurors in a murder case, the sheriff has no right to interrogate them as to whether'they have conscientious scruples on capital punishment, or have formed an opinion as to the guilt or innocence of the defendant. If he does so, the panel so summoned will,- upon motion, be discharged; but where the court, when the matter is called to his attention, asks counsel for defendant whether they desire to make a motion to discharge the panel stating that if such a motion were made he would sustain it, and defendant’s counsel decline to make it, they cannot thereafter raise the point nor challenge individual jurors for cause on that ground. Their action amounts to a waiver of the irregularity in the conduct of the sheriff, and is an indication that, in the judgment of counsel, defendant was not prejudiced by such action.</p> <p>4. Where in a murder case the entire panel of jurors summoned was exhausted and a special venire was issued, and the sheriff summoned twelve additional jurors from the county, it is no ground for quashing the array that seven of the twelve were from the borough where the murdered man resided and where the crime under investigation was committed, particularly where it appears that only one additional juror was needed at the time the venire went out, that only four of the twelve summoned were called and that the fourth, who was accepted by the defendant, was not a resident of*said borough.</p> <p>'6. Where in a murder case jurors are examined on their voir dire and state that they have formed an opinion as to the guilt or innocence of the defendant, but that they can lay aside that opinion and decide the case on the evidence alone, the court commits no error in overruling challenges for cause. The established test is whether or not the juror can throw aside his impression or opinion and render an impartial verdict on the evidence alone. That question the juror alone can answer and the weight of his answer is not to be determined exclusively by his words as they appear in print in the record, but by his words, manner and bearing as to which a fair measure of discretion must be allowed to the court below which had the juror before it.</p> <p>6. In the trial of an indictment for murder committed in the perpetration of a robbery, it is proper for the judge to submit to the jury the issue as to whether the defendant was concerned in the robbery or was aiding and assisting therein at the time when the deceased was killed, and to comment upon the evidence indicating the defendant’s participation in the crime, provided he does so fairly and without laying undue emphasis upon the side of the Commonwealth. It is not error to charge that the presumption of innocence was “in favor of the prisoner until the proof fairly establishes his guilt,” where this is coupled with other instructions clearly indicating that the jury must be satisfied beyond a reasonable doubt that the defendant was guilty, before they could convict him.</p> <p>7. The court may in a murder case properly instruct the jury to disregard the argument of counsel for defendant where such argument was not based upon evidence in the case.</p> <p>Appeals — Assignments of error — Criminal law — Quashing array —Jurors—Challenge.</p> <p>8. An assignment of error complaining because the court did not quash an array of jurors is defective if it does not contain the motion to quash, the ruling of the court thereon, and the exception of the defendant thereto.</p> <p>9. Assignments of error in a murder case, to the action of the court in overruling defendant’s challenges for causes of two jurors, are defective if they do not quote the bill of exceptions or set forth the grounds of challenge in so far as they appear from the ruling of the judge.</p>

<p>Appeal, No. 90, Jan. T., 1912, by plaintiffs, from decree of C. P. Lackawanna Co., Oct. T., 1910, No. 1180, dismissing petition for citation to account in case of John B. O’Malley, Trustee for Estate of John A. Mears, deceased, Mina Robinson, Wade M. Finn, John Von Bergen, W. P. Boland, Jas. M. Boland and C. G. Boland, and* Mina Robinson, C. G. Boland, J. M. Boland, Wade M. Finn and Carolina Von Bergen and John Von Bergen, Executors of Estate of John Von Bergen, deceased, v. J. F. Mears and The Lackawanna Trust and Safe Deposit Company, Executors of the Estate of John A. Hears, deceased.</p> <p>Petition to secure an accounting of the management and disposition of a trust fund. Before Edwards, P. J.'</p> <p>The opinion of the Supreme Court states the facts. The court made a decree, dismissing the petition. Petitioners appealed.</p> <p>Error assigned was the dismissal of the petition,</p>

<p>Appeal, No. 309, Jan. T., 1912, by defendants, from judgment of C. P. Lackawanna Co., Sept. T., 1909, No. 896, on verdict for plaintiff in case of William F. Burke v. Patrick Burke, Julia Burke Keating and Thomas Keating.</p> <p>Action of ejectment and for mesne profits. Before O’Neill, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff by direction of the court for land described in the writ and judgment thereon. Defendants appealed.</p> <p>Errors assigned were sustaining objection to the competency of Julia Burke Keating as a witness, and giving binding instructions in favor of the plaintiff.</p>

Appeal, No. 144, Jan. T., 1912, by Frederick Stephan, from decree of O. C. Berks Co., May T., 1910, No. 25, dismissing exceptions to adjudication in Estate of Sarah A. Bower, deceased. Exceptions to adjudication. Before Bland, P. J. The opinion of the Supreme Court states the case. Error assigned was the action of the court in dismissing exceptions to the adjudication:

<p>Appeal, No. 350, Jan. T., 1912, by defendant, from judgment of C. P. Adams Co., Nov. T., 1911, No. 3, on verdict for plaintiff in case of Levi M. Miller v. The Hanover and McSherrytown .Water Company.</p> <p>Trespass to recover damages for injury to plaintiff’s farm caused by interference with riparian rights. Before Sadler, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $1,900. Deendant appealed.</p> <p>Errors assigned were to rulings on evidence.</p>

Appeals, Nos. 6, 7 and 8, Jan. T., 1913, by defendant, from judgments of C. P. Northampton Co., June T., 1912, Nos. 1,2 and 3, in favor of plaintiff in case of T. Campbell Fassitt, G-uardian of Clarissa M. Yeile, a minor, v. Belle R. Seip, and Belle R. Seip, trustee under the alleged will of Theresa Yeile, deceased, tried without a jury. Ejectment for undivided half of certain premises. Before Stewart, J., without a jury, by agreement of counsel.

<p>Insurance — Fire insurance — Policy — Construction —- Proof of loss — Inventory—Substantial compliance — Magistrate's certificate —Waiver.</p> <p>1. The intention of the parties must necessarily govern in the construction of all contracts and it will never be presumed that persons occupying a contractual relation intend that an impossible thing shall be done. It is a general rule that a policy of insurance should be construed most strongly against the insurance company, and in all cases of doubt the contract is to be interpreted in favor of the insured.</p> <p>2. A fire insurance policy providing: “If fire occur, the insured shall give immediate notice of any loss thereby in writing to this company, protect the property from further damage, forthwith separate the damaged and undamaged personal property, put it in the best possible order, make a complete inventory of the same, stating the quantity and cost of each article, and the amount claimed thereon, and within sixty days after the fire, unless such time is extended in writing by this company, shall render a statement to this company, signed and sworn to by the said insured ¡stating the knowledge and. belief of the insured, as to the time and origin of the fire, the interest of the insured and of all others in the property, the cash value of each item thereof, and the amount of loss thereon,” is to be construed to require the assured to furnish a statement' of the damaged property remaining after the fire, and not to do what is practically impossible, make a complete itemized inventory of articles in the store before the fire occurred.</p> <p>3. Where after a loss the insured holding such a policy submitted in good faith the information he had or was asked to furnish concerning his losses, together with an inventory of his damaged goods, and on request secured duplicate invoices of certain purchases made by him before the fire and a magistrate’s certificate concerning the loss, he is not to he denied the right to recover merely because the inventory furnished was not a complete statement of all the goods in his store prior to the fire, especially where the defendant company retained the same forty-five days before making any objection thereto.</p> <p>4. An insurance company which retains proofs of loss without objection for over a month will he presumed to have waived defects.</p>

<p>Wills — Construction—Rule in Shelley’s Case.</p> <p>Testator provided by will: “I give and bequeath to my daughter A. E., intermarried with J. W. Y., during her natural life and at her death to be equally divided between her heirs of issue the property known as the Bailroad property.’’ Held, the daughter took a fee tail under the rule in Shelley’s Case; enlarged by statute •into a fee simple.</p>

Appeal, No. 333, Jan. T., 1912, by defendant, from judgment of C. P. Bradford Co., May T., 1910, No. 319, on verdict for plaintiff in case of Noble Ervay v. Waverly, Sayre & Athens Traction Company. Trespass for personal injuries. Before Cameron, P. J. The opinion of the Supreme Court states the facts. Verdict and judgment for plaintiff for $2,000. Defendant appealed.

Appeal, No. 418, Jan. T., 1912, by plaintiff, from order of C. P. Susquehanna Co., Nov. T.,' 1911, No. 99, opening judgment in case of James McPherson, assigned to George I. Cole, v. Annie Cole, administratrix of the Estate of Henry Cole, deceased. Buie to open judgment. Before Little, P. J. The opinion of the Supreme Court states the case.

<p>Appeal, No. 419, Jan. T., 1912, by plaintiff, from order of C. P. Susquehanna Co., Noy. T., 1911, No. 99, opening judgment in case of James McPherson, assigned to George I. Cole, v. Annie Cole, Administratrix of the Estate of Henry Cole, deceased.</p> <p>Rule to open judgment. Before Little, P. J.</p>

<p>Mechanics’ liens — Amount of claim — Contract price — Profit—' Evidence — Charge of court — Judgment n. o. v.</p> <p>1. Under the statutes in Pennsylvania, a mechanic’s claim for material and labor furnished under a contract to a building, may constitute a valid lien against the property, notwithstanding the claim involves some charge in the nature of a profit to the contractor. When a contractor stipulates to put up & building, and the owner agrees that he shall do so on certain terms, it must follow as a consequence that the mechanic acquires some profit if he accomplishes the work, and the owner binds himself to pay it, and this subjects the real estate to the possibility of a lien as the result of nonpayment.</p> <p>2. The court committed no error in refusing to enter judgment for defendant n. o. v., in an action of scire facias upon a mechanic’s lien, where the claimant proved a contract between himself and the owner, showing an agreed price for the job; a contract for extras at an agreed price; proved in detail the work and labor which it would have been necessary to do to finish the contracts together with the price which would then have been due, and established the amount of his claim by deducting from the sum which he would have received for the whole job, the money paid him on áecount and the value of the labor and material not furnished. Such method of proof cannot be said to include profit on labor and material not furnished; it valued the labor and material at the standard fixed by the parties themselves. Even if the method of proof had been erroneous, the question could not be raised by defendant after trying the case without objecting to the method of establishing the claim, which was also assumed as the basis of cross-examination of witnesses and of the defense offered by defendant.</p> <p>3. In such case where the action is between the contractor and the owner, it is not error to refuse to allow evidence of a lien filed by a sub-contractor.</p> <p>4. In such ease where there was no evidence of notice to the plaintiff, that the building was to be completed by a specified time for occupation by any particular tenant, there was no error in refusing evidence offered to show that, in consequence of plaintiff’s delay in the completion of the work; defendant had lost a tenant of the property; nor was it error to refuse an offer to prove that plaintiff had unduly delayed the work, where the évidence, if received, would be merely cumulative, and it was admitted that the work had not been finished on time, and the whole question of the value of the work ta be done after the plaintiff left the job was Submitted to the jury.</p> <p>Appeals — Assignment of error — Charge—Exceptions.</p> <p>5. An assignment of error to a portion of the charge of the court will be dismissed, where the portion of the charge assigned as error was not specially excepted to at the trial, and no general exception was taken to the charge as a whole.</p>

<p>Appeals — Assignments of error — Failure to set out judgment.</p> <p>1. Assignments of error merely averring that the trial judge erred in refusing to take off a nonsuit are insufficient; assignments of error are incomplete which fail to set out the order, decree or judgment from which the appeal is taken.</p> <p>Negligence — Master and servant — Contributory negligence — Nonsuit.</p> <p>2. A nonsuit was properly entered in an action to recover damages for the death of plaintiff’s husband, a ear repairer, employed by defendant company, where it appeared that for purposes of his own, unconnected with his employment, he had gone upon the tracks between certain freight cars in defendant’s yard; that.while there had received injuries causing his death, in consequence of the cars having been moved by a switch engine in the usual course of business, and that the servants of defendant company, who were in charge of the engine, had no knowledge of the decedent’s pres* ence at that place.</p>

Appeal, No. 85, Jan. T., 1913, by defendant, from judgment of ouster of C. P. York Co., Oct. T., 1912, No. 10, in case of Commonwealth of Pennsylvania ex relatione J. William Jones v. Harry E. Dusman. Quo warranto proceeding to determine the right to •the office of tax collector of the School District of York.

<p>Appeal, No. 18, Jan. T., 1913, by plaintiff, from decree of C. P. Northampton Co., Sept. T., 1912, No. 2, in Equity, sustaining demurrer and dismissing bill in case of Ludwig Pfeiler v. The Penn Alien Portland Cement Company and The JEtna Life Insurance Company.</p> <p>Bill in equity praying for a decree subrogating plaintiff to the rights of his bankrupt employer, through whose negligence he had been injured and damaged, against defendant insurance company. Before Stewart, J.</p> <p>Defendant filed a demurrer which was sustained and a decree made dismissing the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court sustaining demurrer and dismissing bill.</p>

<p>Appeal, No. 416, Jan. T., 1912, by defendant, from judgment of C. P. No. 5, Philadelphia Co., March T., 1905, No. 3518, on verdict for plaintiff in case of The Class & Nachod Brewing Company v. Concetta Rago.</p> <p>Feigned issue to determine whether defendant, a married woman, was liable on a judgment entered on a judgment note. Before Martin, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $2,025. Defendant appealed.</p> <p>Errors assigned were the refusal of motion for judgment for defendant n. o. v., the charge of the court and the exclusion of testimony of a witness in rebuttal.</p>

<p>Deeds — Construction—Alleyway,</p> <p>A deed of a lot of land describing tbe same as extending between parallel lines at right angles with a certain street, “to and including on the rear end thereof the soil of a certain two feet six inches wide alley,” is to be construed as conveying to the grantee title to the land to the boundary of the alley, with the use of the alley in common with other owners of lots abutting thereon. Where the words of a grant have a doubtful meaning, they should be construed most strongly against the grantor.</p>

<p>Appeal, No. 15, Jan. T., 1913, by plaintiff, from judgment of nonsuit of C. P. No. 4, Philadelphia Co., Sept. T., 1907, No. 4263, in case of William R. Lebrenz v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s wife.</p> <p>The court granted a nonsuit which it subsequently refused to take off.</p> <p>Audenried, J., filed the following opinion:</p> <p>At Tulpehocken Station on the Chestnut Hill branch of the Pennsylvania Railroad there are two tracks. The easterly track is used by trains bound from Philadelphia toward Chestnut Hill. Trains bound from Chestnut Hill to Philadelphia travel on the westerly track. The main station house, with a platform in front of it for the accommodation of passengers who have occasion to use the outbound trains, is located on the easterly side of the railroad. On the westerly side of the railroad stands a shelter shed with a platform for the use of passengers on the inbound trains. The two platforms are not connected by a tunnel or an overhead bridge. Persons wishing to pass from one to the other must cross the intervening tracks at grade upon a plank walk. No watchman is stationed there to regulate the movements of those passing from one platform to the other, and no fences have been erected to keep passengers off the tracks when the approach of trains renders the space between the platforms dangerous.</p> <p>On October 25, 1907, Mrs. Lebrenz left her home, which is situated east of the railroad, for the purpose of taking at Tulpehocken Station the 1:20 p. m. train for town. She got to the station at least five minutes, perhaps as much as a quarter of an hour, before her train was scheduled to arrive there. When she reached the edge of the platform on the near side of the tracks, she looked toward Chestnut Hill, and saw a train about four hundred feet away moving toward her on the inbound track. She immediately stepped down upon the plank crossing, and, lifting her skirt, in order to facilitate her movements, but walking at her usual gait without increasing her speed, attempted to pass to the platform oh the westerly side of the tracks. She was in the act of stepping np to the far platform when her clothing was caught by the train that she had observed. She was dragged by it along the track and killed.</p> <p>At the time of the accident all trains regularly scheduled to pass Tulpehocken Station stopped there. The train that killed Mrs. Lebrenz was a special train, and did not appear on the railroad company’s published timetable. It consisted of a locomotive and one coach. It was running at a high rate of speed, and did not stop after the accident until it had traveled eight hundred feet beyond the station. The locomotive’s whistle was not blown as the train approached the station. Whether or not its bell was then ringing is uncertain.</p> <p>The testimony produced by the plaintiff would have warranted a finding by the jury of the facts above outlined.</p> <p>A judgment of nonsuit was entered upon the ground of the contributory negligence of Mrs. Lebrenz.</p> <p>It is argued that it was error for the court to declare that the deceased was guilty of negligence that contributed to bring about her death, because the accident happened at a railroad station where she was using the only .facilities that the defendant company had provided for crossing its tracks to the place for embarking on the train upon which it was her intention to become a passenger.</p> <p>In support of this argument, counsel cite the decisions of the Supreme Court in Besecker v. R. R. Co., 220 Pa. 507; Keifner v. Ry. Co., 223 Pa. 50, and Struble v. Penna. Co., 226 Pa. 118.</p> <p>In those cases, however, the court went no further than to say that in the absence of evidence to indicate that the injured person had seen the train approaching by which he was subsequently struck, and had reason to believe that his safety would be endangered, he might rely upon the presumption that the railroad company had taken measures to provide for the safety of its passengers and proceed to cross its tracks without the precaution usually insisted on of stopping, looking and listening.</p> <p>In the case at har there was present an element which did not figure among the facts involved in the cases referred to. It is conceded that Mrs. Lebrenz, before she tried to walk from the easterly platform to the westerly platform across the defendant’s tracks, saw that there was approaching upon the inbound track a train moving at a high rate of speed.</p> <p>It is impossible to distinguish in their essential features, the facts of this case from those presented in the case of Goller v. Baltimore & Ohio Railroad Company, 229 Pa. 412. In each case a train coming rapidly nearer was in plain view, and the danger of attempting to cross the track in front of it was manifest to the intending passenger. If the plaintiff in Goller v. Railroad Company had no right to recover damages for her husband’s death, because it resulted from his taking the chance of crossing the track in front of the train that he saw approaching, so here also, for the same reason, a recovery by Mr. Lebrenz is barred.</p> <p>It may be that Mrs. Lebrenz did not know exactly how fast the train that she saw was moving; but she was safe where she was standing where she saw the train, and she should have stayed there. She had no right to risk her safety on her own rough calculation of the chance that she might be able to walk over the track and get clear of it before the train could reach the crossing. If she made a mistake, and the chance that she took went against her, her husband must suffer the consequences without recourse to the defendant.</p> <p>It is árgued that Mrs. Lebrenz may have mistaken the train that she saw when she was on the near platform for that which was scheduled to stop at the station at 1:20 p. m., and that in view of the probability that that train would slow down as it neared the station, it was for the jury to say whether or not she acted as a prudent person would have acted under these circumstances,' when she attempted to cross the tracks ahead of it. But the same argument was possible upon the facts in the case of Goller v. Baltimore & Ohio Railroad Company, 229 Pa. 412. The train that' struck and killed Mr. Goller was the very train that he was to have boarded,, and he had the same right to assume that its speed would slacken as it approached the station that Mrs. Lebrenz may have thought she had in the case of the train by which she was killed. Nevertheless, binding instruct tions for the defendant were given at the trial of that case, and were approved by the Supreme Court.</p> <p>This case was not for the jury. “Seeing or hearing the approaching train, the traveler is warned of his danger: To wait is safe. It is the only course he can take that is free from danger. If he goes on in the face of a known danger, without an imperious necessity compelling it, negligence is a presumption of law”: Myers v. B. & O. R. R. Co., 150 Pa. 386.</p> <p>It might not have been negligence for Mrs. Lebrenz, relying upon the fact that no warning of danger was given to her by those in charge of the defendant’s station at Tulpehocken, to attempt, to pass the tracks upon the plank crossing there provided for the use of passengers by the defendant, without first stopping, looking and listening for approaching trains; but her attempt to walk over them in the face of a train moving at a high rate of speed, which it is conceded she saw, was negligence that undoubtedly contributed to bring about the fatal mishap that overtook her. The facts appearing by the plaintiff’s evidence presented a clear case for the application of the rule laid down in Carroll v. Railroad Company, 12 W. N. C. 348.</p> <p>The court is of the opinion that the disposition made of this matter at the trial was correct, and the motion to take off the nonsuit is accordingly dismissed.</p> <p>Error assigned was the refusal to take off the nonsuit.</p>

<p>Trusts and trustees — Trustee of corporate mortgage — Foreclosure sale — Purchase and re-sale of property — Equity.</p> <p>1. The trustee of a corporate mortgage is bound, in the exercise of the discretion left to it, to use the same diligence and care in protecting the interests of the bondholders that a prudent man would use in protecting his own interest, and such trustee, in the absence of a specific provision in the mortgage, has implied power to bid in the property at a foreclosure sale for the benefit of the bondholders at a figure sufficient to cover the debt, interest and costs, and not in excess of the value of the property.</p> <p>2. In such a case the trustee has the further right to make a resale of the property so acquired to the best advantage, and an order of court authorizing such sale is unnecessary.</p> <p>3. In a proceeding in equity to set aside a sheriff’s sale and to enjoin a public sale of land so acquired, the bill was dismissed where it appeared that the defendant, trustee under a corporate mortgage, had caused certain property subject to a lien of the mortgage to be sold and had purchased the same at a figure sufficient to pay debt, interest and costs, to prevent a sale at a sacrifice; and it further appeared that the action was taken in good faith and in the interest of all the bondholders as represented by the trustee and there was no suggestion that the bid of the trustee exceeded the fair value of the property; and there was no evidence tending to show that the re-sale cf the property by the defendant would be an inequitable or unjust exercise of its power.</p>

<p>Appeal, No. 60, Jan. T., 1913, by plaintiff, from judgment of C. P. Lackawanna Co., June Term, 1911, No. 127, dismissing exceptions to an account in the case of David Gr. Watson v. Scranton Trust Company.</p> <p>Petition for an accounting by a trustee under the Act of June 14,1836, P. L. 628, 633. Before Newcomb, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed plaintiff’s exceptions to the defendant’s account and confirmed the same finally.</p> <p>Error assigned was in dismissing exception and confirming the account.</p>

<p>Appeal, No. 259, Jan. T., 1912, by plaintiff, from judgment of C. P. Northampton Co., Feb. T., 1911, No. 52, on verdict for defendant in case of First National Bank of Bangor v. Alfred M. Paff.</p> <p>Assumpsit upon a promissory note. Before Stewart, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The note in suit was as follows:</p> <p>No. 86892</p> <p>No......... Bangor, Pa., Feb. 2, 1910.</p> <p>Due May 2.</p> <p>. Three months after date I promise to pay to the order of A. M. Paff $2,000</p> <p>At First National Bank of Bangor, Pa.</p> <p>Two Thousand..............................Dollars</p> <p>Without defalcation value received with interest.</p> <p>Credit the drawer. (Signed) A. M. Paff;</p> <p>(Endorsed)</p> <p>A. M. Paff.</p> <p>When defendant, A. M. Paff, was on the stand, the following questions were asked him:</p> <p>,“Q. Well, did the committee subsequently come to you?</p> <p>“A. The committee subsequently called upon me and finally asked me to come to Mr. Thomas Ditchett’s office, where Mr. Buzzard and Mr. Dichett were—</p> <p>“By Mr. Goldsmith: We will follow this up by showing that a committee was appointed and actually waited on him.</p> <p>“A. The committee called upon me to look into, this matter. At that meeting, I denied that I was liable on this note.</p> <p>“Q. At the timé of the committee meeting?</p> <p>“A. Yes, sir. They finally said, that, in order to avoid any further dissension and discussion, I should give a note of $2,000 and if it afterwards developed that I wasn’t .liable on this I should never be asked to pay for it.</p> <p>“By Mr. Kirkpatrick: This evidence as to what took place in any conversation by the members constituting the committee is immaterial and irrelevant, the committee having no power to bind or make any arrangement upon the subject, but simply to report, upon which subsequent action might or might not be taken; and it appears that there were minutes of the meeting of the board of directors, relating to this subject, which are the best evidence of what took place between the bank and the witness so far as it has any relevancy to this present controversy.</p> <p>“By the Court: In the absence of the minutes, we will go on with the examination as before and when they are produced and we have an opportunity to read them, we will make such change in the ruling, if any is necessary, to protect the rights of the parties. For the present, the objection is overruled.</p> <p>“Exception and bill sealed for plaintiff. (6)</p> <p>“Q. In consequence of the interviews and conversations that you had with Mr. Ditchett and Mr. Buzzard, as the committee of the bank, you gave that note?</p> <p>“By Mr. Kirkpatrick: Objected to as incompetent and irrelevant, and it simply forms a mental, conclusion on his part. The circumstances under which the contract was made and the sequence must be determined by the facts themselves as they transpired, of which the proper evidence should be given.</p> <p>“By the Court: The objection is overruled.</p> <p>“Exception, and bill sealed for plaintiff.</p> <p>“A. I will have to answer it, yes, sir. (7)</p> <p>“Q. Then, Mr. Paff, will you state again, were you indebted on account of this note or was there any consideration passing from the bank to you at all for the note in suit?</p> <p>“By Mr. Kirkpatrick: Objected to as incompetent and irrelevant, and that proper proof should be given of the existence of añy such note or series of notes, and that the witness is not competent to answer a question of that kind at this time, in the absence of such notes, which are assumed, in the question to have been in existence or claimed upon.</p> <p>“Objection overruled.</p> <p>“Exception, and bill sealed for plaintiff.</p> <p>“A. There was no consideration.” (8)</p> <p>Errors assigned were (1, 5) various parts of the charge; (6, 8) rulings on evidence, as above, quoting the bill of exceptions.</p>

<p>Streets — Public highways — Real estate — Streets upon plotted plan — Rights of abutting lot owners — Dedication of streets — Public use — Railroads—Eminent domain — Easements—Laches—Costs.</p> <p>1. When the owner of land has sub-divided it into a plan of lots, showing streets and alleys, there is an implied covenant to dedicate such streets and alleys to the use of purchasers of lots, and incidentally to the use of the public. The public authorities are not required to adopt the streets as public highways but if they do so adopt them, they may subsequently vacate the same, and .when this is done the lot owners and other interested parties stand only upon, their contractual rights.</p> <p>2. The easement owned over such streets and alleys by the owners of lots is a property interest,' which may be the subject of a taking under the power of eminent domain. A railroad company, therefore, possessing the right of eminent domain, may after proper formalities, occupy such streets and alleys, although in so. doing it must give or secure compensation to lot owners for the easement of which they are thus deprived.</p> <p>3. An individual lot owner is entitled to damages in such case, whether or not his lot abuts upon the street appropriated, but the fact that it does not so abut is an important fact to be considered in the assessment of damages. •</p> <p>4. Where a railroad company is proceeding regularly for the purpose of appropriating a street under such circumstances, it cannot be restrained by bill in equity, at the suit of a lot owner, especially where it appears that the lot' owner had stood by and allowed the railroad company to proceed with its work, and make large expendítures, before taking any action. Even if tbe railroad company did not file a bond before beginning the work, as it should have done, it will not be restrained by bill in equity, but the lot owner will be relegated to his action at law.</p>

<p>Appeal, No. 304, Jan. T., 1912, by defendant, from judgment of O, P. Bradford Co., May T., 1910, No. 32, on verdict for plaintiff in case , of Myron W. Gilkey and Etta Gilkey, Ms wife, v.. Waverly, Sayre & Athens Traction Co.</p> <p>Trespass to recover damages for personal injuries. Before Cameeon, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for Myron W. Gilkey for $800 and for Etta Gilkey for $3,125, and judgment thereon. Defendant appealed.</p> <p>Errors assigned are sufficiently explained in the opinion of the Supreme Court.</p>

<p>Negligence — Railroads — Pedestrians — Permissive crossing — Warning — Court -and jury — Instruction.</p> <p>1. In an action against a railroad company to recover damages •for personal injuries the case is for the jury, where the evidence of the plaintiff goes to show that he was struck in the use of a permissive crossing by an engine of the defendant company moving quietly in the darkness, without signal, although the defendant introduces several witnesses who testify that plaintiff was injured while undertaking to jump on the end of the tender of the engine.</p> <p>2. In such a case the defense is not in position to complain of a charge, where the trial judge carefully presents to the jury the questions involved and affirms without qualification eleven points for charge submitted by the defense, refusing only those praying for binding instructions, and further gives an opportunity for correction or enlargement of the instruction at the close of the charge by inquiring directly of counsel if there was anything else that they desired to have brought to the attention of the jury.</p>

<p>Wills — Republication by parol — Evidence—Burden of proof.</p> <p>1. A decree of the Orphans’ Court dismissing an appeal from the decision of the register of wills refusing to admit to probate a will alleged to have been republished by the testator by parol subsequent to the making of another will, will not be reversed where the court below has properly found that the evidence of such parol republication was so uncertain and the testimony as to what the testator did in this respect was so conflicting that it cojild not be accepted as establishing a republication.</p> <p>2. Not decided whether if sufficient evidence was produced a will could be republished by parol.</p>

<p>Appeal, No. 391, Jan. T., 1912, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Dee. T., 1909, No. 328, on verdict for plaintiff in case of Charles Eneu Johnson Company, a corporation, v. City of Philadelphia.</p> <p>Trespass to recover damages for the burning of a building. Before Little, P. J., specially presiding.</p> <p>The facts appear in Charles Eneu Johnson Co. v. Philadelphia, 236 Pa. 510.</p> <p>Verdict for plaintiff for f27,342. Defendant appealed.</p> <p>Errors assigned were various instructions and rulings of the court.</p>

Appeal, No. 399, Jan. T., M912, by defendant, from order of C. P. No. 1, Philadelphia Co., Sept. T., 1912, No. 3875, discharging defendant’s rule to show cause why judgment should not be opened and the defendant let into a defense, in case •of Joseph McGarrity, trading as Joseph McGarrity & Company, v. Winifred McMahon. Rule to show cause why judgment should not be opened and. the defendant let into a defense.

<p>Unincorporated associations — Trust funds — Amendment of bylaws — Change of object of trust — Diversion of funds.</p> <p>1. An unincorporated society, which provides in its articles of association for the alteration thereof By the agreement of less than the entire membership of the association, may proceed to amend its by-laws in accordance with such provision, and all members of the society will thereafter be bound by the change in its fundamental law, so far as future operation is concerned.</p> <p>2. Where, however, a society has been organized for the purpose of raising funds for a specific charity, and has raised funds for that purpose, a lawful amendment of the by-laws providing for the collection and disbursement of funds for a different charity in the future, does not justify the society, even with the consent of a large majority of its members, in diverting the funds from the purpose for which they were raised to a different purpose.</p> <p>3. Where it appeared that an unincorporated association had raised funds for the support of a national orphans’ home, and after an amendment of its by-laws proceeded to raise funds for an orphans’ home for the support of children of its own members, it cannot apply the funds raised for the former purpose to the latter. Equity will order the funds to be paid over to the use of the charity for which they were originally accumulated.</p>

<p>Practice, O. P. — Power and discretion of court — Belay in filing statement of claim — Judgment of non pros.</p> <p>Where a summons in assumpsit was issued in 1899, and no other step in the ease was taken by the plaintiff until 1912, when a statement of claim was filed, the lower court commits no error in striking off the statement of claim, and entering a judgment of non pros upon a rule entered by tbe defendant. Waring v. Pennsylvania R. R. Co., 176 Pa. 172, followed.</p>

<p>Appeal, No. 153, Jan. T., 1913, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1910, No. 4719, on verdict for plaintiffs in case, of Guarantee Trust & Safe Deposit Company, Executor of the Estate of William H. H. Waller, deceased; Lucy J. Schellenberger, Kate Waller and Josephine. Grogan v. Charles B. F. Waller.</p> <p>Trial of issue devisavit vel non. Before Staake, J.</p> <p>The following rulings on evidence appeared from the record: Defendant, the contestant, made an offer of proof by an expert alienist, which, with the objection and ruling thereon, was as follows:</p> <p>“It is offered to show by the witness on the stand that there is a clear mark of distinction between delirium and delusion, that the witness was the attending physician at the time of the death of Mr. Waller; that Mr. Waller never during his last illness suffered from delirium, but the expressions to which he gave voice in his last illness were expressions springing from the delusion which continued in his mind from some time anterior to 1907 down to the date of his death; this for the purpose of offering testimony of the expressions made by Mr. Waller within three weeks of his. death, showing the existence of the delusion.</p> <p>“Mr. Saul: ‘I object to the offer because the occurrences relate to a time after the date of the last codicil and within three weeks of the death of the testator and that the testimony is offered for the purpose of having an inference drawn to a statement of facts which is within the knowledge of the witness and who has so tes-, tified.’</p> <p>“The court overrules the offer, first, on the basis of the objections made by the counsel , for plaintiff, and also because the witness on the stand has already given his testimony covering the dates of the execution of the last will and codicil.</p> <p>“The court grants counsel for the defendant an exception to its ruling.” (1.)</p> <p>Plaintiff, proponent, asked an expert alienist a question, which, with the objection and ruling thereon, was as follows:</p> <p>“Q. A man in- Mr. Waller’s condition, having delusions that his wife and son are against him — that his wife may poison him in some manner; that the son may kill him in some manner;,.that his wife draws off the hot water so that he will get a chill and die — and in 1903 makes a" will by which he leaves the . income of his estate, “with the exception of small legacies, to his wife for life with the right to draw on the principal, and the balance after her death to the son — and who in 1907 makes a will by which he leaves annuities, which annuities in the. course of time will eat up the entire estate, so that there will be nothing for the son in the ordinary course of events — what effect would, you say those delusions would have upon that change between the two wills of 1903 and 1907? Objected to. Objection sustained. Exception for defendant.</p> <p>“The Court: ‘That question contains statements which have not yet been evidenced so far as the progress of this trial is concerned, and, therefore, I think for that reason the question is objectionable and also for the reason I expressed yesterday and to which I still hold — that is, that where a physician has had and has embraced the opportunity of actual examination and knows the .actual condition, that he ought to give his conclusions from his knowledge, as being better evidence than his conclusion which he states based upon a hypothetical question propounded to him.’ ” (2)</p> <p>The court overruled defendant’s objection to a question put in the cross-examination of one of the defendant’s witnesses. The question and ruling were as follows:</p> <p>“Q. Do you doubt for one moment that Mr. Waller was capable of taking charge of his affairs in his dealings with you? Objected to. Objection overruled. Exception for defendant. A. No, I didn’t.” (3)</p> <p>A question directed to an expert alienist on cross-examination by the plaintiff, and the ruling thereon, were as follows:</p> <p>“Q. In your opinion, was there any mental impairment at that time? Objected to. Objection overruled. Exception for defendant. A. ‘I shall have to say again that I did not know of any — did not observe any.’ ” ,(4)</p> <p>Defendant made an offer of proof which with, the objection and ruling thereon was as follow's:</p> <p>“I offer to prove by Miss Osborne that she is a trained nurse and has had large experience in nursing cases of senile dementia; that she went to nurse Mr. Waller about three weeks before his death and within ten weeks after the date of the last codicil; that as soon as she saw. Mr. Waller she knew that he was suffering from senile dementia; that he made certain declarations to her concerning his attitude toward Mrs. Waller showing that he had persecutory delusions; that he was also incoherent in his talk and the witness believes was on the borderland of what has here been termed the third stage of senile dementia or complete dementia.</p> <p>“(Mr. Saul objected to the offer on the ground of the incompetency of the witness to express an opinion as to senile dementia, and also because the offer proposed to prove what took place only three weeks prior to the death of Mr. Waller.)</p> <p>“The Court: ‘The court has listened with a great deal of interest to the arguments, but is not convinced that the ruling already made should not stand. The fact has been overlooked in the argument that testimony has been produced here showing that there were apparently during the period alleged as the progressive state of the senile dementia, times at least when, according to some of the witnesses, the testator was apparently as pleasant as he had been during the period that it is admitted he was one of the most courteous of gentlemen, and when there was no allegation of the beginning of the progressive stages of senile dementia. The case referred to in 122 Pennsylvania was one in which the question was considered of the susceptibility of the testator’s mind to undue influence. There is one controlling feature of the case which would seem to be sufficient to exclude this offer — that is, that the witness, although a trained nurse, was not necessarily so qualified as to pass judgment which is to be expressed as affecting the testamentary capacity of the testator at the time of the execution of the will and codicils.</p> <p>“Mr. Matthews: That is another question. My offer was intended to cover both separately.</p> <p>“The Court: ‘You can arrange that as you please, and I will sustain the objection to the offers as separately made, both as to the competency of the witness to testify and to the declarations made by the decedent at that time.’</p> <p>“(The court granted the defendant an exception to the above ruling.) ” (5)</p> <p>Plaintiff asked a question of an expert alienist which, with the objection and ruling thereon, was as follows:</p> <p>“Q. Doctor, does politeness to outsiders, to persons outside the family, have any bearing at all as to whether a man has senile dementia or not? Objected to.</p> <p>“The Court: ‘Do you mean when a man has senile dementia it is limited, in its effects as to others, to the members of the family, and as to all other people he is normal?’</p> <p>“Mr. Matthews: ‘I mean whether that has any bearing upon the matter at all — the fact that he is polite to outsiders?’</p> <p>“The Court: ‘You are asking the doctor whether a person affected with senility of that character can be polite to strangers?’</p> <p>“Mr. Matthews: ‘Yes — about whom he has no delusions.’</p> <p>“The Court: ‘I will sustain the objection to that.’ (Exception for defendant.) ” (6)</p> <p>Various questions directed to witnesses called on behalf of the plaintiff were objected to by the defendant, which questions and rulings thereon were as follows:</p> <p>“The Court: ‘I will allow the question.’ (Exception for defendant.)</p> <p>“The stenographer repeated the question as follows:</p> <p>“Q. From your observation of Mr. Waller during these years, what is your opinion as to his mental state when you knew him?</p> <p>“A. Í have always thought his mental state was perfeetly good — never noticed anything peculiar about him at any time. He seemed to be just like anyone else. He was rather courteous in manner — rather more formal than ordinary people and outside of that I never noticed any difference from the usual manner of people I know.” (7)</p> <p>“Q. Prom your observations of Mr. Waller during this period, what is your opinion as to his mental state as you saw him? (Objected to.) (Objection overruled.) (Exception for defendant.)</p> <p>“A. I saw nothing in his actions to ever raise any question in my mind in regard to his mental capacity.” (8)</p> <p>“Q. Prom the opportunities you had of observing Mr. Waller during these years, what is your opinion as to his mental state?; (Objection overruled.) (Exception for defendant.)</p> <p>“A. He never gave me any indications, from what I observed, of any mental unsoundness or peculiarities. I hadn’t the slightest suspicion of anv mental trouble.” (9)</p> <p>“Q. Now I want you to tell the jury your opinion as to the way in which this man transacted this business with you. (Objected to.) (Objection overruled.) (Exception for defendant.) A. Well, in what way do you want me to say? This transaction was usual — nothing unusual in it.” (10)</p> <p>Defendant presented this point: If the jury find that the testator in the case on trial had an intelligent consciousness of the nature and effect of his act, a knowledge of the property he possessed, and an understanding of the disposition he intended to make of it, he would not have the capacity to make a will the law requires, unless the will was not made under a delusion of fact as to his son and only child, whom he has practically disinherited, and if the jury find that such delusion was operative at the time of the making of the will in question, then their verdict should be for the defendant.</p> <p>“Answer. The twelfth point is declined as being contradictory in its terms.” (16)</p> <p>Errors assigned were the above rulings on evidence, quoting them (1-10), and the answer to point (16); other assignments are explained in the opinion of the Supreme Court.</p>

<p>Appeal, No. 54, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., Sept. T., 1911, No. 2461, on verdict for defendant in case of Jessie M. Quinn v. P. Erwin Swartley.</p> <p>Trespass for illegally selling personal property in distress proceedings. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for the defendant and judgment thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was the refusal of the court to give binding instructions for the plaintiff for such damages as it had been proved she had suffered.</p>

<p>Penal bonds — Assumpsit on penal bonds — Judgment for amount of the penalty — Assessment of damages.</p> <p>1. Where a penal bond is given conditioned for the payment of an annuity to the obligee, the obligee may bring an action fcarrears of the annuity, on the covenant in the bond, using the bond simply as evidence of the covenant, or he may bring his action directly upon the bond itself.</p> <p>2. When the action is on the bond, there can be but one judgment, and that must be for the amount of the penalty, with an assessment of damages for the breaches assigned, and if subsequent breaches occur, the remedy is by scire facias upon that judgment.</p> <p>3. Where a penal bond is given, conditioned for the payment of an annuity to the obligee, and the payments fall into arrears, and an action of assumpsit is brought upon the bond to recover the amount of the penalty and arrearages, the court has no power to enter judgment for want of a sufficient affidavit of defense and assess damages in the amount of the penalty, plus the amount of the arrearage's. In Such a case judgment should be entered for the amount of the penalty* with'an assessment' of damages for the amount of the admitted breaches. The judgment thus entered will stand as well for any subsequent breaches that may occur, until it shall be exhausted.</p>

Appeal, No. 70, Jan. T., 1913, by plaintiffs, from order of C. P. No. 4, Philadelphia Co., June T., 1910, No. 1829, making absolute defendant’s rule to open judgment and let the defendant into a defense in case of Harry S. Kaestner, Executor of the Will of Christian Dietrich, deceased, and Marie Baumann, Residuary Legatee under the Will of Christian Dietrich, deceased, v. Herman Ehinger. Rule to open judgment and let the defendant into a defense.

<p>Appeal, No. 80, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Déc. T., 1910, No. 2162, on verdict for defendant in case of Sarah A. Beck v. George Schekter and Meyer Bernstein.</p> <p>Assumpsit to recover a sum charged on land. Before WlLTBANK, J.</p> <p>From the record it appeared that Edward Lynch died intestate October 21, 1870, leaving a widow and four children, one of whom was the appellant. Proceedings in partition were had in the Orphans’ Court and the real estate of the intestate was apportioned and four properties were allotted to appellant, Sarah A. Lynch, subject to the dower of the widow, Margaret Lynch. The decree in partition fixed the principal of the dower at $1,076.11. Thereafter, by indenture dated February 16, 1886, the widow, pursuant to the terms of an agreement with appellant, apportioned the said dower to the several premises allotted to appellant, and in so doing apportioned the sum of $1,111.56 to premises on the west side of Fourth street north of Reed street, and the sum of $756.60 on premises on the east side of Horstman street north of Reed street. This deed apportioning the dower recited: “After the death of the said Margaret Lynch the principal of said dower or third to immediately become due and payable to the said Sarah A. Lynch (appellant), her heirs, executors or administrators.” By indenture dated December 6, 1887, appellant conveyed these two properties to Mary J. Craddock, and in that indenture it was recited: “By virtue of proceedings in Partition duly issued out of the Orphans’ Court for the City and County of Philadelphia and recorded in Partition Docket J. M. No. 1 page 117 said premises were awarded (inter alia) unto the said Sarah A. Beck (appellant), her heirs and assigns forever subject to the dower of the widow of said intestate; and Margaret Lynch, widow of said Intestate, by Deed Poll of Apportionment of Dower given under her hand and seal and recorded at Philadelphia aforesaid in Deed Book G. G. P. No. 108 page 317 &c. agreed with the said Sarah A. Beck (appellant) that the sum of Twenty-one hundred and sixty-eight Dollars and sixteen cents would be accepted with interest thereon in lieu and full satisfaction of . her dower in said premises hereinbefore described.” This indenture also in the Habendum recited: “Under and subject nevertheless to the aforesaid Dower as apportioned in said Deed Poll or Apportionment of Dower and the interest thereon when and as the same grows due and becomes payable.” By indenture dated May 26, 1900, Mary J. Craddock (who intermarried with William Kennedy) conveyed these two properties to appellees. In the deed to appellees there is the following recital: “Being the same premises which George P. Beck and Sarah A., his wife, by indenture dated the Sixth day of December A. D. 1887 and recorded at Philadelphia in Deed Book G. G. P. No. 339 page 10 &c. granted and conveyed unto the said Mary J. Craddock, wife of Thomas H. Craddock, in fee. Subject to the payment of the Dower or sum of Twenty-one hundred and sixty-eight Dollars and sixteen cents with interest thereon as therein expressed.” In the Habendum of the same deed to appellees there is the following recital: “Under and Subject nevertheless to the above mentioned Dower or sum of Twenty-one hundred and sixty-eight Dollars and sixteen cents and the interest thereon when and as the same grows due and becomes payable.” Margaret Lynch, the widow, died November 2,1910. Appellant (formerly Sarah Á. Lynch) brought suit to recover $2,168.16, the principal of the dower fund charged against these two properties, claiming that this sum became due her immediately upon the death of the widow, the appellees being at that time, and since, the owners of said two properties.</p> <p>The trial judge directed a verdict for defendants. Plaintiff filed a motion for judgment non obstante veredicto, and for new trial, both of which motions were overruled. Judgment in favor of defendants was entered on the verdict. Plaintiff appealed.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were, inter alia, the striking out of parol testimony to explain the ambiguities in the deeds, and directing a vérdict for defendants.</p>

<p>Appeal, No. 413, Jan. T., 1912, by defendant, from decree of C. P. Lackawanna Co., in Equity, Oct. T., 1911, No. 1, making permanent a preliminary injunction in case of Scranton Gas & Water Company v. Delaware, Lackawanna & Western Raliroad Company.</p> <p>Bill in equity to restrain defendant from diverting the waters of a stream. Before Edwards, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made permanent a preliminary injunction, restraining defendant from pumping the waters of the stream. Defendant appealed.</p> <p>Error assigned, amongst others, was the decree of the court.</p>

<p>Appeal, No. 79, Jan. T., 1913, ..by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1911, No. 3143, on verdict for plaintiff in case of Carl Edsberg v. Baldwin Locomotive Works.</p> <p>Trespass to recover damages for personal injuries. . Before Magill, J.</p> <p>From the record it appeared that Carl Edsberg, the . plaintiff, was a structural iron worker employed by Brann & Stewart, contractors, and was sent with other workmen to re-enforce trestle work in a yard of the Baldwin Locomotive Works in Philadelphia. On August 4th, 1910, he was engaged in drilling holes in an iron girder about sixty feet above the ground. With him was an assistant. About 5:20 p. m. he was notified that it was time to stop. He then climbed across the girder upon which he was working to an upright iron column and descended this column to two girders about eight feet below. These girders ran east and west and. carried iron tracks over which ran two ten ton cranes. One of the girders held the north track of one crane, and the other the south track of the other crane. Before Edsberg descended the column he looked and saw the crane on the north track, stationary, one hundred feet to the westward. He also looked to the east and saw the crane on the south runway forty-five feet distant, also stationary. When he reached the two girders below he looked again and saw the cranes in the same position, then placed one foot where the diagonal iron strips connected with the steel girder about four or five inches from the track of the runway and the other foot he stretched across to the other girder in the same position. He faced the east with the column in front of him and rested one hand against it for support, and reached the other hand upwards for his tools. His assistant climbed over the upper trestle for the tools, to pass to him. While in this position for about a minute and a half or two minutes the crane on the north track in charge, of an operator employed by the defendant, moved eastward from behind and without warning to the plaintiff ran into him and crushed his leg against the column. The operator was warned to watch for the workmen on the girders. He testified that when the accident happened he was facing the opposite direction. Evidence was offered to the effect that the crane operator knew that Edsberg and his assistant were working on the trestle above the crane because they were in sight of him all day, and a half hour before the accident spoke to him while he was passing beneath them. The jury rendered a verdict in favor of the plaintiff in the sum of $20,000. A motion for judgment non obstante veredicto was made and refused, and judgment entered on the verdict. Defendant appealed.</p> <p>Errors assigned were the refusal of the court to direct a verdict for the defendant, and to enter judgment for the defendant n. o. v.</p>

<p>Appeal, No, 46, Jan. T., 1912, . by plaintiff, from decree of C. P. No.. 3, Philadelphia Co., . In Equity, March T., 1912, No, 4832, dismissing bill in ..case of William Spink v.. The, President,, Managers and . Company of The Schuylkill Navigation. Company.</p> <p>Bill in, equity for an injunction. Before Davis, j.</p> <p>The opinion of the Suprenie.Court.stat.es, the facts.</p> <p>Error assigned, inter alia, was the decree of the court.</p>