Volume 241 — Pennsylvania State Reports

<p>Negligence — Street car companies — Motorman—Duty to looh — - Injury to child.</p> <p>A case against a street railway company to recover damages for injuries sustained by a child six years of age, is necessarily for the jury where the evidence produced on behalf of the plaintiff tended to show that the child started to run across the street in front of the car, and fell upon the track about twenty-five feet distant therefrom; that the motorman did not see the child until it was struck by the fender; that if he had been looking ahead he would have seen it f that the car stopped within six feet, after the child was struck, and the motorman could have stopped it had he seen the child when it fell. The fact that the accident occurred near an intersecting street, and that the motorman, in the exercise of his duty, was obliged to look up and down such street as he approached the crossing, is not material, where the car had already made the crossing, before the, child fell upon the track.</p>

<p>Equity — Unfair trade competition — Boole covers — Imitationr— Findings of fact — Injunction—Scope of injunction.</p> <p>On bill in equity for an injunction to restrain unfair trade competition, the court found that defendant was simulating the book covers of a series of books published by plaintiff, for the purpose of misleading the public, and perpetually enjoined the defendant from “publishing or selling any book or series of books in imitation of the series of books issued by plaintiff.” Held, that on the findings of fact, which will not be disturbed by an appellate court, unless the evidence is insufficient to sustain them or there is manifest error on the record, plaintiff was entitled to an injunction ; but that as no question of copyright or of statutory or registered trade mark was involved, and unfair competition in trade was relied on as the ground upon which equitable relief was asked, the decree was too comprehensive and might have the effect of enjoining defendant from publishing books which it would otherwise have the right to publish, and should be modified, so as to enjoin the publication and sale of books bound in covers with designs, illustrations, style and arrangement in simulation of those published by plaintiff.</p>

<p>Appeal, No. 96, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1906, No. 1269, on verdict for defendant in case of Max Ziserman v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>From the record it appeared that on 31 October, 1906, between 5:30 and 6 P. M., appellant, with his employee, one Haberman, was driving east on Poplar street, approaching Seventh street. When they came to Seventh street, according to plaintiff’s testimony, they looked and listened for the approach of a car from the south. They could see about 200 feet, the night being stormy. The first observation towards the south was made when plaintiff’s horse’s head was close to the track; he then saw no car.</p> <p>The ground on Seventh street at Poplar, and for some distance below Poplar, was dug up, for the purpose of repairing the track; to afford vehicles on Poplar street a means of crossing, planking had been laid down about eight feet wide.</p> <p>Plaintiff’s testimony was that when his horse and part of his wagon had crossed the track, so that his horse’s head had reached the farther or eastern curb of Seventh street, and his hind wheel was still on the crossing at the west rail, he looked again and saw. a car about 150 feet away; he continued to drive at a good rate, but in spite of this, the car struck the hind wheel of the wagon and continued to the north side of Poplar street, where it stopped; that the car was running from 19 to 20 miles an hour, and that plaintiff heard no gong. The trolley car had the usual headlight. The plaintiff was thrown to the ground and injured.</p> <p>No exception was taken by the plaintiff to the charge, but he excepted to the refusal of his sixth point for charge, which was as follows:</p> <p>“6. In this case, if you believe the testimony of the plaintiff’s witnesses, as to the condition of the street, and that it was a dark, wet and misty evening, on the night of the accident, then the defendant company and its employees were charged with a greater degree of care in running the trolley car, under the circumstances, in order to avoid a collision with a passing vehicle.”</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were various instructions to the jury, and the refusal of the court to charge as requested by the plaintiff.</p>

Appeal, No. 406, Jan. T., 1912, by defendant, from order of C. P. No. 5, Philadelphia Co., June T., 1909, No. 5017, dismissing exceptions to Referee’s report in case of Cramp & Co. v. Boyertown Burial Casket Company. Assumpsit to recover the balance due on a building contract. The opinion of the Supreme Court states the facts.

Appeal, No. 229, Jan. T., 1912, by plaintiff, from judgment of C. P. Lackawanna Co., Sept. T., 1909, No. 171, on verdict for defendant in case of E. M. Littieri v. Antonio Freda. Ejectment for land situated partly in Scranton City and partly in the Borough of Dunmore. Before Heydt, P. J., specially presiding. The opinion of the Supreme Court states the case.

<p>Constitutional law — Amending act — Act not purporting to he amended — Purpose of act — Incidental operations of statutes— Special legislation — Classification—Sufficiency of title.</p> <p>1. The Act of May 9, 1889, P- L. 168, entitled “An act'relating to the adoption of any person as an heir,” is constitutional, and does not.offend against either Section 6, Section 7, or Section 3 of Article III, of the Constitution.</p> <p>2. While the Act of May 9, 1889, P. L. 168, incidentally operates to change the provisions for distributive shares of a decedent’s estate, under the Act of April 8, 1833, P. L. 315, its effect is not to amend or extend the Act of May 4, 1855, P. L. 430, by charging the course of descent therein directed, and giving to the class of children any different shares or portions than they were entitled to under the conditions there recited, but simply to qualify as legal children certain parties who theretofore were denied adoption, to wit, adults.</p> <p>3. There is a fundamental distinction warranting separate legislative classification of children as distinguished from adults, and an act providing for the adoption of the latter is not unconstitutional as being special legislation.</p> <p>4. The title of the Act of May 9, 1889, P. L. 168, directs attention to the fact that the subject is the adoption of “any person as heir,” which was the true and only object of the legislation, and it is, therefore, within the constitutional requirement.</p>

<p>■Wills — Proof of wills — Witnesses to execution.</p> <p>The proponent of a reproduction of an alleged last will and testament, the original having been lost, does not meet the burden of proof of due execution of such will by producing two witnesses, one of whom testifies that he, with the other, at the decedent’s request signed as a witness a paper purporting to be her will, without having heard the will read and in ignorance of its contents or the number of pages it was written on so that there was nothing by which he could identify it as the will offered for probate.</p>

Appeal, No. 409, Jan. T., 1912, by plaintiff, from judgment of C. P. Bradford Co., Feb. T., 1910, No. 80, on verdict for plaintiff, in case of Grover Sage v. Lehigh Valley Railroad Co. Trespass to recover damages for personal injuries. Before Cameron, P. J., specially presiding. The opinion of the Supreme Court states the case. Verdict for plaintiff for $8,000 and judgment thereon. Defendant appealed.

<p>Appeal, No. 32, Jan. T., 1913, by defendant, from judgment of C. P. Sullivan Co., May T., 1911, No. 22, in case of Mary C. Collins, Administratrix of Patrick Collins, deceased, v. Northern Anthracite Coal Co.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Terry, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $2,000, and judgment thereon. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 421, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., March T., 1909, No. 813, for defendant n. o. v. in case of Arthur McDonnell v. The Orinoka Mills.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,000. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was the entry of judgment for defendant n. o. y.</p>

<p>Corporations — Foreign corporations — Eqwity jurisdiction — Officers and directors — Mismanagement—Discovery and accounting— Remedy at law. .</p> <p>1. A Common Pleas Court in Pennsylvania has jurisdiction of a bill filed by a corporation of the State of Delaware against its former officers and directors, who are residents within the jurisdiction, to recover for losses alleged to have been sustained by the corporation by reason of the negligent and fraudulent acts of the defendants while officers of the corporation. Such a proceeding is not an interference with the internal management of a corporation within contemplation of the rule which denies jurisdiction to Pennsylvania courts.</p> <p>2. In such case where, to afford relief; an accounting and discovery are necessary, the bill will not be dismissed on the ground that the plaintiff has an adequate remedy at law.</p>

Appeal, No. 58, Jan. T., 1913, by defendant, from judgment of C. P. No. 3, Philadelphia Oo., Dec. 'T., 1910, No. 4102, on verdict for plaintiff in case of Emil Funk v. Mahlon A. Young, who, with Frederick G. Emmott, was trading as Emmott Tea & Coffee Co. Assumpsit on a sealed judgment note. Before Ferguson, J. The opinion of the Supreme Court states the facts. Yerdict for plaintiff for $2,702.37, and judgment thereon. Defendant appealed.

<p>Corporations — By-laws — Officers — Employees — Authority— Contract — Ratification—Foreign corporations.</p> <p>1. In an action to recover for the breach of a written contract of employment for one year, it appeared that the contract was executed by the president of the defendant corporation; that the by-laws of defendant corporation gave no authority to the president to make any such contract; that there was no ratification, but as soon as the board of directors learned thereof they repudiated it; that plaintiff had been paid for the services rendered by him; and that he sued exclusively for the breach of the contract of employment for the remainder of its term, he having been discharged without cause. Held, the lower court was correct in entering judgment for the defendant.</p> <p>2. A contract with an unauthorized officer of a corporation is not enforceable, unless there is some evidence of ratification, or a course of dealing with the plaintiff, indicating that the officer was vested with authority.</p> <p>3. The fact that in such case the corporation was organized under the laws of another state is not material. It is not an interference with the internal affairs of a foreign corporation to enforce its by-laws in such case.</p>

<p>Railroads — Grade crossings — Increase of traffic over crossing— Bridges — Act of June 7,1901, P. L. 5S1 — Equity jurisdiction — Injunction — Retention of bill as precautionary measure.</p> <p>1. A bill in equity to restrain the erection of an approach to a county bridge, upon the ground that the erection of the bridge and the approach thereto in the location intended, would require passengers over the bridge to pass over an existing grade crossing of the complainant railroad company, and would, therefore, constitute in effect the creation of a new grade crossing within the meaning of the Act of June 7, 1901, P. L. 531, was held to have been properly dismissed where it appeared that the beginning of the approach complained of, which was on the west bank of the river spanned by the bridge, would be about forty-five feet east of the existing grade crossing.</p> <p>2. In such a case, the facts that the traffic over the existing crossing would be largely increased by reason of the construction of the bridge and that the danger at the crossing would, therefore, become correspondingly greater, were held to be matters outside of and not affecting the issue.</p> <p>3. In such a case, however, the court held that, in view of the conceded dangerous condition of the existing crossing and the unquestioned increase of the traffic over it after the construction of the proposed improvement, the bill should be retained as a precautionary measure so as to enable the court to take such proceedings as might be deemed necessary in the future, to insure the safety of travel at the point in question.</p>

<p>’ Wills — Construction—'Advancements—Evidence—0. C.— Findings of fact.</p> <p>1. Testator by will provided: “I desire that four thousand dollars of the money advanced by me for my son Augustus shall not be deducted from his share of my estate.” It appeared that the testator had made certain payments directly to hi§ son Augustus in his lifetime, and that he had made certain other payments to third persons for his son. Held, the language of the will above quoted should not he construed to mean that payments made directly to the son, as distinguished from others made to third persons for his benefit, were intended by the testator to be excluded in computing advancements chargeable against the son’s share of the estate.</p> <p>2. In such case it appeared that testator had paid certain sums to his son prior to his marriage, while the son was living with him in his household, and had paid him certain other sums after his marriage, and while he was engaged in business for himself. It was held to be a fair presumption that payments of the first class were intended as gifts, and of the second class as advancements.</p> <p>3. In such case, it was error for the Orphans’ Court to charge the son with an advancement, where the evidence showed the payment was a loan to a firm, and there was nothing to show that the testator intended it to be charged as an advancement against his son. It was also error to charge the son with the value of a lot conveyed to him, and with the amount of a check paid to him prior to-his marriage, where the circumstances' indicated that both were intended as gifts, and there was no evidence that testator intended either of them to be charged against the son as advancements.</p> <p>4. In such case, the check stubs of the testator’s check hook, upon which he- had made memoranda of dates, amounts and purposes for which the checks were issued, were properly introduced in evidence, for the purpose of showing the intention with which the payments were made. While check stubs of this kind would properly be considered as self-serving declarations, and not admissible in evidence in an ordinary, contract ease, they are admissible in determining the intent with which payments are made by a testator, where he is acting under no compulsion, but as a benefactor for a child.</p>

<p>Corporations — Preferred stock — Retirement—Stock dividend.</p> <p>Where preferred stock was issued by a corporation, the certificates of which contained the following provision: “The stock represented by this certificate is a portion of the preferred stock authorized by the stockholders, in pursuance of the Acts of Assembly of April 18, 1874, P. L. 61; April 3, 1872, P. L. 37, and April 28, 1873, P. L. 79, is entitled to cumulative semi-annual dividends of four per cent, each on the par value of the Stock, payable from the net earnings of the company; and is subject to the right of the H. F. Watson Company, at its option, to retire and extinguish the same, upon the payment to the owner thereof of all arrears of dividends, and the par value thereof, at any time after April 6, 1907,” the corporation cannot compel the holders to surrender their stock for purposes of redemption, except upon payment in cash of accumulated dividends and the par value of the stock. The fact that subsequent to the issuance of the preferred stock, a stock dividend had been declared by the corporation, some of which stock was distributed to the preferred stockholders, does not affect their rights. Such new Stock, if so distributed, cannot be regarded as a payment on account of the semi-annual dividends to be paid in cash as a preference on the par value of the preferred stock out of the net earnings.</p>

<p>Appeal, No. 122, Jan. T., 1913, by defendant, from judgment of C. P. Erie Co., May T., 1909, No. 18, on verdict for plaintiff in case of William A. Witmer v. Bessemer & Lake Erie Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Walling, P. J.</p> <p>From the record it appeared that at the time of the accident plaintiff was riding in an automobile driven by another, under the plaintiff’s direction, along Poplar street, in the City of Erie. Upon Twelfth street, crossing Poplar street, were constructed two tracks of defendant railroad company, consisting of a main track and a siding. The distance between the two tracks was eight feet four inches. As the automobile approached the tracks, it stopped for the purpose of enabling plaintiff and the driver to look and listen for a train, but on account of intervening cars, the view of the main track was somewhat obstructed. Neither the plaintiff nor his driver went forward to look for approaching cars, nor did the automobile stop the second time after starting to make the crossing. The automobile first crossed the switch and the rear portion of it was struck on the main track by defendant’s locomotive, which there was evidence to indicate was running at a negligently high rate of speed, without signals. There was evidence that after crossing the switch, plaintiff and his driver could have seen the approaching train and could then have stopped the automobile before reaching the main track; plaintiff’s evidence indicated that the approaching train was not in fact seen until the front wheels of the automobile were on the main track.</p> <p>Verdict for plaintiff for $4,582.74, of which $400.00 was remitted by the plaintiff, and judgment for $4,-182.74. Defendant appealed.</p> <p>Errors assigned, among others, were the refusal of the court to direct a verdict for defendant, and to enter judgment for defendant n. o. v.</p>

<p>Wills — Probate—Duties of register — Gifts to charities — Attesting witnesses.</p> <p>1. Though a religious or charitable bequest or devise forming part of a will may be void by reason of the failure of the testator to execute it in the manner required by the statute, the whole will must be admitted to probate upon proof of its execution, leaving all questions concerning the validity of the charitable or religious bequest to be determined on distribution of the estate.</p> <p>2. The probate of a will without regard to its provisions ia one thing; distribution of the estate of the testator in accordance with the terms is another. The former is for the register; the latter is none of his concern. Distribution is for the court alone, and, on distribution, and not before, is the validity of the provisions of the will to be passed upon.</p>

<p>Appeal, No. 415, Jan. T., 1912, by defendants, from decree of C. P. Chester County, in equity, No. 564, directing re-conveyance in case of Chester County Trust Company, Administrator, c. t. a. of Thomas B. Brown, deceased, v. Edwin A. and Clara E. Pugh. Before Fell, C. J.,</p> <p>Bill in equity to compel a conveyance by the defendants to the plaintiffs of certain real estate. Before Hemphill, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court made a decree directing a conveyance of the property in question to the administrator.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Courts — Questions of law — Duties of associate fudges.</p> <p>1. Where the president judge dismisses a petition for a writ of mandamus upon undisputed facts, two associate judges of the court, who are unlearned in the law, have no power to file a so called dissenting opinion holding that the prayer of the petition should be granted and directing a writ of peremptory mandamus to issue.</p> <p>Elections — Primary elections — Candidates—Withdrawal of candi des — Substitutions — County commissioners — Mandamus — Uniform Primary Act of February 17, 1906, Section 8, P. L. 86.</p> <p>2. Under the Act of February 17, 1906, P. L. 36, county commissioners are not required to print on the official ballot to be used at a primary election, the name of a candidate for delegate to a state convention, when such candidate did not file with the commissioners a petition to have his name printed on the official ballot until the tenth day before the primary election, and then only petitioned to have his name printed as a substitute for the name of another candidate who had withdrawn, and there still remained two other candidates for state delegates, who had properly petitioned the commissioners.</p> <p>3. Section 8 of the Act of February 17, 1906, P. L. 36, relates solely to the holding of or the manner of conducting the primaries on election day by the election officers. It has nothing to do with the things connected with or leading up to the primary election.</p>

<p>Appeal, No. 362, Jan. T., 1912, by plaintiff, from decree of C. P. Luzerne Co., in equity, Jan. T., 1912, No. 362, sustaining demurrer to bill in equity in case of Agib Ricketts v. R. U. Capwell and Benton Coleman, Executors of Isaac B. Felts, deceased.</p> <p>Bill in equity for conveyance of property.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence — Fall over obstruction — Evidence—Directed verdict.</p> <p>In an action to recover damages for injuries sustained by plaintiff in stumbling over certain rails, deposited on a vacant lot in a city, where plaintiff claims that the rails projected into a public street, and that she fell over them while walking on the street, but her uncorroborated testimony is so conflicting that it would have been impossible for the jury to have found where she fell, the lower court commits no error in directing a verdict for the defendant.</p>

<p>Appeal, No. 123, Jan. T., 1913, by the Township of Plymouth, from judgment of C. P. Luzerne Co., March T., 1909, No. 623, on verdict for plaintiff in case of Morgan Hutchins v. The Township of Plymouth and Larksville Borough.</p> <p>Trespass to recover damages for personal injuries. Before Garman, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the refusal of the court to direct a verdict for defendant, and to enter judgment for defendant n. o. v.</p>

<p>Practice, O. G. — Fraud—Gross laches.</p> <p>1. When a person against -whom an alleged fraud has been perpetrated lies by for twenty years, without causing it to be investigated, he will not then be permitted to show it. From So long an acquiescence, the presumption of law is conclusive that all was done rightly.</p> <p>2. Appellants, upon the audit of the account of an administrator, claimed that certain fraud had been practiced upon one, under whom they claimed, by a trustee and a deceased attorney, some twenty years before the trustee’s death, and some twenty years before tbe death of the person against whom the fraud was alleged to have been perpetrated, and who never made any complaint of it. Held, it is now too late for the heirs of the person alleged to have been defrauded to do what he neglected to do during his lifetime.</p>

<p>Appeal, No. 103, Jan. T., 1913, by defendants, from order of C. P. Clearfield Co., In Equity, Sept. T., 1912, No. 4, continuing a preliminary injunction until final bearing on bill in equity in case of Tbomas Gemmell, William David, George W. Stiles, S. J. Mountz, Howard E. Fulkerson, Clifford C. Fulkerson, Setb V. Davis, D. H. Kornman, W. B. Gallagher v. George W. Fox, Ira Nevling, James Mooney, David Miller, Thomas Gallagher, comprising the Board of School Directors of the School District of Gulich Township.</p> <p>Bill in equity to restrain school directors from acquiring land for school purposes.</p> <p>Holt, P. J., specially presiding, filed the following opinion;</p> <p>The plaintiffs in this case are citizens and taxpayers of the Township of Gulich, in the County of Clearfield, and the defendants are the duly elected and qualified school directors of the school district of Gulich Township, in said county.</p> <p>The bill in this case was filed to restrain the defendants, as such school directors, from acquiring, by condemnation or otherwise, twelve Certain lobs or pieces Of ground in the village of Janesville, in said township, for school purposes. The property proposed to be taken by the defendants is seven or eight hundred feet distant from the present school property in Janesville, which consists of a plot of ground 120 feet in width and 200 feet deep, on which is erected a frame school house containing two rooms. The building is two stories in height, and occupies but a small part of the lot. On either side of the present school ground there is land which can be had at reasonable rates for school purposes; and, in fact, a taxpayer in the township has offered to donate to the school district a lot 60 feet wide and 200 feet deep adjoining the said school property, for school purposes. The property proposed to be taken by the defendants for school purposes is underlaid with coal, there being four or five different veins; and one of the veins, which is workable, lies within 30 feet of the surface.</p> <p>According to the evidence the coal under this plot of ground is owned by a coal company, with the right to mine all of the coal underlying the surface without liability for damages to the surface, while the surface is owned by others. The value of this property, exclusive of the coal and mining privileges, is about twenty-four hundred dollars, while the evidence shows that the damage to the coal tract of which the premises in question constitute a part, if the owners of the coal should be required to leave it for support, would be anywhere from four thousand to five thousand dollars, thus making a probable cost to the school district of anywhere from five thousand four hundred to seven thousand four hundred dollars. The primary object of taking this land was for the purpose of building thereon a high school building, which object was soon abandoned by the defendants, and this, doubtless, for the reason that for a period of eleven years last past but twenty-two pupils in the schools of Gulich Township passed the eighth grade, which is necessary to admit pupils to the high, school, or, in other words, an average of two pupils per year. One of the defendants when on the stand testified that the ground sought to be acquired would not be useful to the school district except for high school purposes. According to the minutes of the board of directors, the idea of acquiring the property for high school purposes was abandoned. It was then proposed to take the property for school purposes, generally, with the idea of erecting thereon a small building, with one room, for immediate use. The evidence showed that the two school rooms in Janesville are somewhat crowded, and that another room is necessary to accommodate the pupils. The evidence also shows that it is the intention of the defendants to erect a new school building at a place called Fernwood, a short distance from Janesville, and from which territory a number of pupils in attendance at the schools in Janesville come, and which, if erected, would take a considerable number of pupils from the Janesville school to that location. The evidence further shows that if such building should be erected there would be no necessity for an additional school room at Janesville for years to come. The evidence, which is uncontradicted, is to the effect that if one additional room should be added to the present school building, even though the new building should not be erected at Fernwood, it would be ample to accommodate the pupils attending school at Janesville for a number of years. The evidence also tends strongly to prove that the prospects for an increase in population at Janesville are not very promising, the town being a mining town, with the likelihood that the coal will be exhausted at that place before many years. There is the testimony of a large number of witnesses to the effect that there is no necessity, whatsoever, for the acquisition of this ground for school purposes, and that it would be a waste of school funds, and a burden on the taxpayers without any corresponding benefits to be derived therefrom. There is nothing in the evidence to show that the present site is not sufficient in size for the erection of another room in connection with the present building. Neither has it been shown that the present location is unsuitable for school purposes. Nor does it appear that there is any proposition to abandon the present site, or that there are any considerations affecting the public health making it necessary to acquire the land proposed to be taken. Neither is there any evidence tending to show that the adoption of the new site would result in advantages bearing any reasonable proportion to the expenditure required.</p> <p>It is to be presumed, however, in the absence of anything to the contrary, that the school directors are acting within the limits of the discretion with which they are entrusted. The power of the courts to interfere with school directors in the performance of their duties is exceedingly limited; and they are permitted to interfere only where it is made apparent that it is not discretion that is being exercised but arbitrary will or caprice. Discretion involves the exercise of judgment incidental to the proper performance of the duty delegated. When the contention is that the proposed action is unwise, no matter by what consensus of opinion it is Shown, the law will refer it to mistaken judgment over which it has no supervision. But if it cannot be so referred, if the facts admit of no other conclusion than that the determination of the board has been influenced by other considerations than the public interests, no matter what these may have been, the law will regard it as an abuse of power, and disregard of duty, and it becomes the duty of the courts to interfere for the protection of the public: Lamb v. Redding, 234 Pa. 481. Inasmuch as under the evidence it is shown that one additional room will be sufficient to accommodate the pupils of Janesville for a period of years to come, we feel that the probable expenditure of the amount necessary to acquire the property in question, and in view of the further fact that under the uncontradicted evidence the property at present owned by the school district in Janesville, and in view of the further fact that the land adjoining the present school property may be had without cost to the district, we feel that the determination of the school board to acquire the property in question is influenced by other considerations than the public interest, and that it would be an abuse of discretion on the part of the defendants to acquire, under the circumstances, the property in question. It may be that upon final hearing, when we have the benefit of the testimony on the side of the defense, a different conclusion will be reached. But as the case now stands, we are satisfied that the preliminary injunction should be continued until final hearing.</p> <p>An order was entered in accordance with this opinion. Defendants appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>Contracts — Performance—Failure of consideration.</p> <p>Upon the trial of an issue to determine whether there was a failure of consideration for a judgment note given by a son to his father, both deceased, it appeared that the note was given to secure the purchase money for property to be conveyed by the father to the son; that no conveyance was made in the lifetime of the father, but that he devised the property by will to the son, who remained in possession thereof until his death two years later; and that' during that time he did not question the judgment which had been entered against him by the executors of his father’s estate. Held, the lower court was correct in directing a verdict for the plaintiffs in the issue, the executors of the father’s estate.</p>

<p>Trust companies — Insolvency—Distribution of assets — Deposits —Act of May 8,1907, P. L. 192 — Checks.</p> <p>Checks drawn on a trust company by depositors therein, presented for payment to the trust company by the holders, accepted, charged against the accounts of the drawers, and the trust company’s cheek on another bank given in exchange therefor, are not deposits within the meaning of the Act of May 8, 1907; and if the trust company becomes insolvent such checks have no preference as deposits.</p>

<p>Appeal, No. 400, Jan. T., 1912, by Hervey S. Walker, Committee in Lunacy of Rowena Vandever, from decree of O. C. Philadelphia Co., July T., 1899, No. 223, sustaining exceptions to adjudication in Estate of Nancy L. Partridge, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The auditing judge, Dallett, J., awarded the accumulation of income in question to Hervey S. Walker, Committee in Lunacy of Rowena Vandever. Henry R. Edmunds, trustee, filed exceptions to this part of the adjudication, and the Orphans’ Court in baric sustained the exceptions and awarded the accumulation of income to the trustee. Hervey S. Walker, as committee in lunacy, appealed.</p> <p>Errors assigned were in sustaining exceptions to the adjudication of the auditing judge.</p>

<p>Appeal, No. 201, Jan. T., 1912, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1903, No. 1146, for plaintiff, in case of Charles F. Felin v. City of Philadelphia.</p> <p>Claim for damages for opening of street. Agreement for issue and appeal from road jury referred by agreement to Boland E. Foulke, Esq., referee. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The referee found in favor of the plaintiff in the sum of $8,000. Exceptions to the report of the referee were dismissed by the court. Defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to the report of the referee in approving the report.</p>

<p>Appeal, No. 25, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., March T., 1910, No. 494, refusing to take off nonsuit in case of Fannie E. Conwell v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for injuries to plaintiff’s real estate. Before Carr, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The trial judge entered judgment of nonsuit, which the court in banc refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Appeal, No. 33, Jan. T., 1913,</p> <p>by Matthew J. Bibby, Jennie R. Hodson, O. Rodger Mel-ling, Guardian of the Estate of Edwin Bibby, from decree of O. P. No. 5, Philadelphia Co., March T., 1912, No. 6373, on bill in equity, in case of Thomas J. Bibby y. Matthew J. Bibby, Jennie R. Hodson, O. Rodger Melling, Guardian of the Estate of Edwin Bibby, and the Prankford Trust Company.</p> <p>Bill in equity to impress a bank deposit with a trust in plaintiffs favor. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court directed that the Prankford Trust Company pay over all of the deposit of $2,110.34 at issue to the plaintiff. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to the finding and to the decree of the court.</p>

<p>Appeal, No. 223, Jan. T., 1912, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1910, No. 18, on verdict for plaintiff in case of Bernard E. Costello v. The School District of the Township of Hazle.</p> <p>Assumpsit upon a contract of employment. Before Little, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for the plaintiff in the sum of $2,076.34, and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing binding instructions for the defendant.</p>

<p>Appeal, No. 417, Jan. T., 1912, by plaintiff, from order of C. P. Luzerne Co., Oct. T., 1910, No. 450, refusing to take off nonsuit in case of Joseph Zeskie v. Pennsylvania Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before O’Boyle, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in entering and refusing to take off nonsuit.</p>

<p>Mines and mining — “Mine"—Mine foreman — Anthracite Mine Act of June 2, 1891, P. L. 176.</p> <p>1. Tbe owner of a mine is responsible for the negligence of his representative or vice-principal and if he claims immunity from liability under a statute he must show a strict compliance with its provisions.</p> <p>2. A “mine” in contemplation of the Anthracite Mining Act of June 2, 1891, P. L. 176, is every operation for the purpose of mining coal, and it includes all the underground workings, excavations and shafts connected below the surface by tunnels and other ways and openings and operated by one general haulage, ventilation and mine railroad system; it does not include separate and distinct underground operations disconnected or operated by separate and distinct mining systems, whether such separate workings are under a common ownership or not.</p> <p>3. The requirements of the Mining Act of June 2, 1891, are not satisfied where an owner, who operates two separate and disconnected mines as part of one colliery, has placed the underground workings of both mines in charge of a certified mine foreman, who employed another as assistant mine foreman and assigned him to duty in one of the mines. The employer must place a certified mine foreman in charge of the underground working of each operation or mine and the employment of one foreman, putting him in charge of more than one mine, is not a compliance with the statute.</p> <p>4. The* provisions of the act requiring the owner to authorize the mine foreman to employ assistants when he cannot personally carry out the provisions of the act does, not authorize the foreman to employ an assistant for each separate underground operation of the owner and place him in charge of it so that the foreman may perform his duties as such in several mines. The foreman and his assistant are expected to perform their duties in the same mine, the latter being subject to the control and direction of the former.</p> <p>Negligence — Master and servant — Mines and mining — Failure to provide mine foreman — Liability of owner.</p> <p>5. In an action to recover damages for the death of plaintiff’s son, who was employed in the mine of defendant company, it appeared that the company operated two mines, which were & half mile apart, and had no underground connection; that the underground workings of both mines were placed in charge of a certified mine foreman; that the latter employed an assistant mine foreman and assigned him to duty in the mine in which decedent was killed; that the accident which caused the death was the fall of a piece of rock from the roof of a gangway, and was due to the negligent performance of the duty to remove the rock from the roof, which duty was by law vested in the mine foreman. Held, although the mine foreman might be in general charge of the mine, he was to be treated as vice-principal or superintendent of the defendant mine owner, in view of the failure of the defendant to provide a certified mine foreman for the particular mine in which the decedent was killed, and that the defendant company was liable for the injury suffered.</p>

<p>Appeal, No. 40, Jan. T., 1913, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1912, No. 1565, for plaintiff on case stated in the case of John T. Blease and Mary Blease v. Rhoda A. Anderson.</p> <p>Amicable action in ejectment and case stated to determine the title to real estate. Before Garman, J.</p> <p>Tbe material facts are set forth in the following excerpt from the opinion of the court below:</p> <p>William Anderson and Rhoda, his wife, purchased and took possession of an undivided four-fifths interest in a farm, the other undivided one-fifth interest already belonging, at the time of said purchase, to the said Rhoda. The material parts of the deed conveying the title to the Andersons are as follows: “This indenture made 30th November, 1904, between Mary E. Heft,...... parties of the first part and William Anderson and Rhoda A. Anderson......parties of the second part. Witnesseth that the said parties of the first part for and in consideration......paid by the parties of the second part......do grant......unto the parties of the second part and their heirs and assigns, All the undivided four-fifths part of that piece or tract of land......It is understood and agreed that there is hereby conveyed an undivided ten-fifteenths part to the said William Anderson and an undivided two-fifteenths part to the said Rhoda A. Anderson, so that Rhoda A. Anderson, being already the owner of an undivided three-fifteenths part as devisee of her father, will be the owner of an undivided five-fifteenths part. Together......with the appurtenances. To have and to hold......unto the said parties of the second part, their heirs and assigns to the only proper use, benefit and behoof of the said parties of the second part their heirs and assigns forever.” ......William Anderson died intestate 24th of December, 1910, leaving to survive him the said Rhoda and three children, two of whom were by her, the said Rhoda, and, by a former wife, one, Mary Blease the plaintiff. Since the death of William Anderson, the said Rhoda has held the entire tract of land claiming to own the same by entirety by reason of the purchase aforesaid and her survival of her said husband. The plaintiff, Mary Blease, claims that by the said deed, the decedent, William Anderson, her father, owned an undivided ten-fifteenths interest in the said land and that she is entitled to one-third of the ten-fifteenths, or two thirds of said tract of land. William Anderson was the father of three children, of two of which Rhoda A. Anderson was the mother. It was natural, therefore, that the father should want to take title so that his estate might be shared equally by his children. This purpose was admirably subserved by the deed, if it conveyed to each a particular estate, but the purpose was entirely subverted if the deed conveyed an estate by entireties. In the case before us looking both at the form of the deed considered as a whole and at the character of the transaction including the circumstances surrounding the parties, we are constrained to hold that the said William Anderson and Rhoda A. Anderson did not take an estate by entireties with right of survivorship as,to the described twelve-fifteenths but that William Anderson took individually an undivided ten-fifteenths. interest and Rhoda A. Anderson took an undivided two-fifteenths interest in the said land. Judgment is directed to be entered in favor of the plaintiff, Mary Blease, and against the defendant, Rhoda A. Anderson, for an undivided two-ninths interest in said land (being an undivided one-third of said undivided ten-fifteenths) subject to the dower right of said Rhoda A. Anderson. In addition to the foregoing facts, it appears that the purchase money was paid by the grantees in the proportions represented by their respective interests as designated in the deed.</p> <p>Errors assigned were the conclusion of the court below and the judgment entered thereon.</p>

<p>School district — Powers—Statutes—Land acquired by eminent domain — Sale of land — Covenant of general warranty.</p> <p>1. School districts are creatures of the statutes and have only such powers as are thereby given to them; and a school district has no statutory power either express or implied to convey in fee property acquired by it in the exercise of the power of eminent domain or in such a case to enter into a covenant of general warranty With the vendee.</p> <p>Assumpsit — Covenants—Deed—General warranty — School district — Land acquired by eminent domain.</p> <p>2. In an action against a school district upon a general warranty contained in a deed from defendant to plaintiff, it appeared that the land in question had been acquired in the exercise of the power of eminent domain by the defendant from its original owners, who subsequently conveyed all their right, title and interest therein to another; that later the property was permanently abandoned for school purposes and sold to plaintiff by a deed of general warranty; and that the successors in title to the original owner had evicted the plaintiff by an action of ejectment. Recovery was resisted on the ground that the contract was ultra vires both as to the officers who executed the deed on behalf of the district and as to the district itself. Plaintiff was unable to produce the minutes of the board and there was no proof justifying a finding that the officers who signed the deed were formally authorized to bind the district by such a covenant. Held, that the plaintiff was not entitled to recover.</p>

<p>Appeal, No. 64, Jan. T., 1913, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1910, No. 1654, on verdict for plaintiff by direction in case of The People’s Water Company, to the use of The Spring Brook Water Supply Co., v. The City of Pittston.</p> <p>Assumpsit on implied contract. Before Strauss, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury was directed to find a verdict in favor of the plaintiff, which they did in the sum of $9,639.09, and judgment was entered thereon. Defendant appealed.</p> <p>' Error assigned was in giving binding instructions for plaintiff.</p>

Appeal, No. 113, Jan. T., 1911, by respondent, from order of C. P. Blair Co., Marcb T., 1910, No. 7, in disbarment proceedings, In re H. Price Graffius, an attorney-at-law. Rule to disbar an attorney. Before Baldridge, P. J. The opinion of the Supreme .Court states the facts. The court made the rule absolute. Respondent appealed. Error assigned, among others, was the order of the court. '

<p>Appeal, No. 308, Jan. T., 1912, by defendants, from order of C. P. Blair County, Oct. T., 1911, No. 148, awarding a writ of peremptory mandamus in case of Commonwealth of Pennsylvania, ex rel. Thomas Wehrle, Guardian of William Alexander, v. The School District of the City of Altoona, Michael Poet, President; W. F. Eberle, D. K. Howe, H. K. Earlenbaugh, M. H. Canan and Thomas Magee, Members of the Board of Directors of the Altoona School District.</p> <p>Petition for writ of peremptory mandamus. Before Shull, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded a peremptory mandamus. Exceptions to the findings and decree were dismissed by Reed, P. J., specially presiding. Defendants appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Practice, O. C. — Bill of review — Commonwealth—Laches.</p> <p>1. While the statute of limitations does not run against the Commonwealth, laches may be imputed to her as well as to an individual.</p> <p>2. The auditor general filed a petition to open, review and set aside the confirmation of an auditor’s report, awarding distribution of a fund in the hands of an administrator, on the ground that there was error in allowing the administrator credit for the amount he paid the informant of an escheat; the petition was not filed until more than nine years after the confirmation of the adjudication, and the persons who had knowledge of the facts were dead. Held, the petition was properly dismissed.</p>

<p>Appeals, Nos. 69 and 341, Jan. T., 1912, by respondents, from judgments of C. P. Blair Co., as of Oct. T., 1910, No. 327, Oct. T., 1911, No. 67, in favor of petitioner in cases of Blair B. Young v. John G. McCamant and Blair B. Young v. John G. MeCamant and Andrew H. McCamant.</p> <p>Action under the Act of April 20, 1905, P. L. 239, to recover real estate purchased at sheriff’s sale. Before Baldridge, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made a decree in favor of the petitioner. Respondents appealed.</p> <p>Error ' assigned, among others, was the decree of the court.</p>

<p>Wills — Construction—Legacy—Claim on account of contract.</p> <p>Testator by will gave certain bequests and devises to his daughter Lillie, further providing, “said bequests and devises to be in full of her interest in my estate.” There were gifts to other children, hut the provision for his daughter Lillie was separate and distinct from the others. The daughter presented a claim against the estate of her father for services rendered under an express contract, by which she was to he paid a fixed amount annually for assistance in the care of his house and farm after she became of age. The contract was proven hy competent testimony. Meld, the testamentary provision above referred to did not preclude her from claiming and receiving from her father’s estate the amount due on the contract.</p>

<p>Appeal, No. 74, Jan. T., 1913, by plaintiff, from judgment of C. P. Blair Co., March T., 1909, No. 295, for defendant, in case of John J. Glass v. Minnie Morgan, in her own right, and as executrix of James Morgan, deceased; Louisa Foster or Louisa Forster, David Belford, Elizabeth Ekey, Jemima Scott, Agnes A. Wall and Milo Wall, her husband; John Howieson, Kate Howieson, William Howieson and Mary Howieson.</p> <p>Ejectment to recover an undivided one-half interest in land. Before Baldridge, P. J.</p> <p>The case was tried without a jury under the Act of April 22,1874, P. L. 109.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Court entered judgment for defendants. Plaintiff appealed.</p> <p>Error assigned, among others, was in entering judgment for defendants.</p>

<p>Statutes — Implied repeal — Act of June 1901, P. L. 864 — Taxes —Levy and collection — Unseated land.</p> <p>1. It is a rule of statutory construction that an earlier law will be repealed by implication by an act covering tbe entire subject matter of tbe former law, and manifestly intended as a substitute for it. But tbis rule is founded on presumption of legislative intent, and will not apply where a contrary intent is clearly apparent.</p> <p>2. The. Act of June 4, 1901, P. L. 364, relating to the practice and procedure for the filing, collection and extent of tax and municipal claims was intended to cover the entire subject matter of the former law on that subject, and to repeal acts inconsistent therewith. That statute, however, does not contain any provisions for the collection of taxes on unseated land, for which there has been a statutory system in operation for more than a century, entirely distinct from that enacted for the collection of taxes on other subjects. It expressly repealed some two hundred statutes on the subject of taxation, but did not expressly repeal any relating to the collection of taxes on unseated lands and was not intended to repeal such statutes by implication.</p> <p>3. In an action of trespass to recover damages for cutting and carrying away growing timber, where the plaintiffs’ title depended upon a sale for taxes due upon the land as unseated, such sale was properly made under the statutes existing prior to the Act of June 4, 1901, P. L. 364.</p>

<p>Negligence — Electric light companies — Defective wire — Duty of inspection — Death.</p> <p>In an action to recover damages for the death of plaintiff’s husband, caused by his hand coming in contact with a heavily charged electric light wire of defendant company, while decedent was walking on the pavement of a city street, it appeared that the wire had been burned through and one part of it hung from the pole and extended downward to within three inches of the ground, where the wind caused it to swing back and forth, across the pavement; that a telephone company had extended an uninsulated guy wire from one of its poles between the defendant’s wires and had wound it around the pole of the latter, fifteen feet from the ground; that for upwards of a year the guy wire had been slack, so that the wind would blow it against the electric light wires and in wet weather a circuit would be completed and the weaker wire would be burned through; that the guy wire had not been placed between the defendant’s wires with its consent, and it had no actual notice of its existence; and there was evidence that the touching of the wires gave rise to a condition which would inevitably cause one of them to fall, which condition would have been disclosed by proper inspection. Held, that the only ground upon which defendant would be held liable was its failure to properly inspect its system of wires, that this question was properly submitted to the jury.</p>

<p>Municipalities — Cities of the third class — Appropriation of property for parle purposes — Joint resolution — Agreement with owner as to damages — Previous appropriation.</p> <p>1. Under the Act of May 23, 1889, P. L. 277, providing for the government of cities of the third class, as amended by the Acts of June 26, 1895, P. L. 349; May 11, 1901, P. L. 187; April 25, 1903, P. L. 316, and May 6,1909, P. L. 459, councils of cities of the third class may, in condemning land for park purposes, proceed either by formal ordinance or by simple joint resolution.</p> <p>2. While under the Act of June 8, 1895, P. L. 188, a bond tendered by the city to pay damages, for property taken for park purposes, should not be submitted to the Court of Common Pleas for approval until after there has been a bona fide effort to reach a satisfactory adjustment with the owner of the property, a contention that there has been no such bona fide effort will be overruled on appeal, where the court below has found that the mayor of the city offered the claimant a specified price for his lot, which offer was declined, and that the claimant admitted that he had at all times refused to accept said amount or “any other sum,” and “that the city could not agree with the owner upon his compensation or damages,” it not appearing that the sum tendered was unreasonable or out of proportion to the value of the land appropriated.</p> <p>3. It is not necessary for a city of the third class to actually appropriate money to pay for lands which it is proposed to take for park purposes, prior to instituting proceedings for the taking of the land. Under the statutes the property owner is sufficiently proteeted, and it cannot be successfully argued tbat tbe failure to previously appropriate renders tbe condemnation proceedings invalid.</p>

<p>Appeal, No. 108, Jan. T., 1913, by The American Type Founders’ Company, The New First National Bank of Meadville, Pa., and A. G. Phillips, Creditors of Messenger Printing Company, from order of C. P. Crawford Co., Nov. T., 1910, No. 2, In Equity, refusing to order sale of certain property in hands of receiver, in case of Fred G. Prenatt v. The Messenger Printing Company.</p> <p>Petition for order to sell property in hands of receiver of insolvent corporation. Before Prather, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the order. Petitioners appealed.</p> <p>Error assigned, among others, was the decree refusing the order of sale.</p>

<p>Wills — Construction—Life estate with power of consumption— Bond to protect remaindermen — Act of April 17, 1869, P. L. 70.</p> <p>1. The rule that a bequest of personalty, with power to consume, sell and dispose thereof, carries an absolute and unrestricted title to it, although there is a gift over of what is left to other parties, is not a rule of law, but a rule of construction in aid of discovery of testator’s intent, and it will be applied only where the legatee has used and appropriated the property in an honest exercise of the discretion with which the testator has clothed him. The test in all such cases is the good faith of the action of the beneficiary.</p> <p>2. A devise of an estate, with power to convert and consume, where there is a gift over of the uneonsumed part on the death of the first taker, does not authorize the devisee to apply the unconsumed part to any other purposes than his own support.</p> <p>3. Testator by will provided: “All the rest and residue of my estate and any lapsed legacies, real, personal or mixed, whatsoever and wherever situated, I give, devise and bequeath to my said wife, Mary Watson, in lieu of her dower interest, for her sole use, benefit and support during her natural life, and to be in her sole control and direction, and whatever remains of the same at her death, whether real, personal or mixed, my Will is and I hereby direct my executor to convert into money.” He then gave “all my estate so remaining after the death' of my said wife” to the heirs of his deceased brothers and sisters. The widow entered into possession of the estate. One of the remaindermen filed a petition, averring that the widow had an income more than sufficient for her needs, that “being now advanced in years, and in poor health, surrounded by relatives whom she has been induced to aid and support, she is spending, and has spent, principally for and on account of said relatives” much more than her annual income. The petition prayed that the widow should be required to file an account and give bond for the protection of the remaindermen. The widow filed an answer, averring that she was not accountable for the consumption of the property, and generally denying the facts alleged. The lower court dismissed the petition. Held, error. Testator did not intend that his wife should unconditionally take the residue of his estate; he desired that she should be properly maintained and supported in the manner in which she had lived, and that after the residue of the estate had served the purpose of supporting her during life, it should go to his collateral relatives named in the will as legatees. Held, further, that it was the duty of the lower court to ascertain the facts, and, if found to be necessary, to require a bond for the protection of the remaindermen, as directed by the Act of April 17, 1869, P. L. 70.</p>

<p>Practice, Supreme Court — Paper boohs — Pleadings—Testimony —Act of May 11, 1911, P. L. 279.</p> <p>1. Where the paper book of appellant in the Supreme Court does not contain the body of the evidence, every assumption will be made in favor of a state of facts which would sustain the action of the court below. When counsel desire to take advantage of the Act of May 11, 1911, P. L. 279, giving permission to exclude “any part of the evidence appearing in the transcript,” they must keep in mind that this legislation applies only to such portions of the record as are immaterial to the points brought up for review, and they must not omit parts essential or helpful to a proper determination of the issues of law to be considered by the Supreme Court; an appellant has no right under this act to omit to print pleadings or other writings filed of record in the court below that relate to the appeal or bear upon the questions thereby sought to be raised.</p> <p>Negligence — Street railway companies — Contracts with other companies — Liability for accidents.</p> <p>2. In an action to recover damages for personal injuries, where it appeared that defendant street railway company had entered into a contract with another street railway company, by which for a stipulated sum the latter furnished electric power, employees and some of the cars for transportation of passengers, over a route consisting of defendant’s line- and a small portion of the line of the other company, and that under this contract the latter maintained, operated and controlled defendant’s line, the lower court committed no error in directing a verdict for defendant, it further appearing that plaintiff was injured while a passenger upon a ear belonging not to the defendant, but to the other street railway company, on the latter’s tracks, in the care and custody of its employees, and while riding upon a ticket purchased from it. In such case the defendant railway company could not be held responsible for the damage suffered.</p>

<p>Appeal, No. 90, Oct. T., 1912, by plaintiffs, from judgment of O. P. Allegheny Co., June T., 1910, No. 324, on verdict for defendant in case of Henry Sproul and H. E. Anderson, Partners as Henry Sproul & Company, for tbe use of Henry Sproul, doing business as Henry Sproul & Company, in the hands of his and their receiver, the South Side Trust Company of Pittsburgh v. John Sloan and Fidelity Title & Trust Company, Committee in Lunacy for John Sloan.</p> <p>Assumpsit to recover an alleged balance on an account for stock purchased on margin. Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court below directed a verdict for the defendant and judgment was entered thereon. Plaintiff appealed.</p> <p>Errors assigned were in directing a verdict for the defendant and in refusing to direct a verdict for the plaintiff.</p>

<p>Wills — Codicils—Construction.</p> <p>1. Where a will and codicil are to be construed, they must be regarded as parts of one and the same instrument, and the codicil is not to be allowed to vary or modify the will, unless it be plain that such was the intention of the testator. But where there is a real discrepancy, the codicil, or if more than one, the last must prevail.</p> <p>2. By her last will testatrix disposed of her personal effects and devised her residuary estate in trust to pay over one-half of the income thereof to her unmarried daughter C, one-fourth to her married daughter L, and the remaining one-fouth to her daughter-in-law E for the benefit of herself and her two children, the trust to continue for the lives of the cestuis que trustent, and twenty-one years after the death of the survivor, with an ultimate remainder to a charity. In case of the marriage of C, her interest was to be reduced to one-third and the share of E was to be forfeited by her marriage. A codicil was executed' three months later, which recited the source of the family fortune, and declared the purpose of testatrix to equalize the shares of her children and grandchildren in the distribution of that fortune. It further set forth that under the terms of the will of her sister W, testatrix received a life estate in two-thirds of W’s estate with remainder to her surviving children and that when testatrix made her will she was under a wrong impression as to how distribution would be made of this portion of her sister’s estate. She therefore directed that the share of her grandchildren in her estate should be computed by adding to the net amount of her estate a sum equal to the amount of the trust estate under the will of her sister, and that one-third of this total should constitute the trust fund for the children of her deceased son; that this share or part should be deducted from her “own individual estate,” and the balance of her “said estate” should be equally divided between the trusts for her daughters C and L. A second codicil was executed more than six years later by the testatrix and was written in her own hand, evidently without the assistance of counsel, by which testatrix appointed a trust company trustee i. id then directed that the interest of her estate should be divided into three parts, one-half to her daughter 0, the other half divided between her daughter L and the two sons of her deceased son, leaving his widow as guardian. She also provided that if her daughter C married she should receive a third and in the event of her death the interest was to be returned and divided among the others. Held, that the testatrix had. abandoned the disposition of her property as set forth in the second codicil, and disposed of her estate in the third codicil without regard to the results of the distribution of her sister’s estate.</p>

<p>Appeal, No. 105, Oct. T., 1912, by defendant, from decree of C. P. Allegheny Co., March T., 1906, No. 627, on bill in equity in case of Howard Hager v. Thomas Reilly.</p> <p>Bill in equity for an accounting. Before F. C. Mc-Girr, referee.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The referee found that plaintiff was entitled to $5,-045.72.</p> <p>Exceptions to the report of the referee were dismissed and the report was confirmed and judgment entered for the plaintiff in the sum found by the referee. Defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to the report of the referee and entering judgment for the plaintiff.</p>

<p>Constitutional law — Right of eminent domain — Public or private use — Tramways—Private roads — Mining operations — Act of May 5, 1911, P. L. 167.</p> <p>1. Eminent domain is the sovereign power vested in the Commonwealth to take private property for public use. It is a reservation in the grant of land by the State to a private owner and is paramount to the right of ownership in the individual. The power is not necessarily created either by Constitution or statute, but is an inherent attribute of sovereignty itself.</p> <p>2. Tinder the right of eminent domain private property can only he taken for a public use, and it is not within the power of the legislature to invest either an individual or a corporation with the right to take the property of a private owner for the private use of some other individual or corporation, even if a method is provided for ascertaining the damages and paying what shall be deemed just compensation.</p> <p>3. The Act of May 5, 1911, P. L. 167, conferring upon an individual, firm or corporation entitled to the use of a private road the right to construct a tramway on it for certain purposes, does not declare the purpose for which the tramway is to be constructed a public use, and the question is one to be decided by the courts upon its merits under the facts and the law.</p> <p>4. The Act of May 5, 1911, P. L. 167, which provides that in Certain cases relating to mining operations, tramways and other devices for moving products may be placed upon private roads laid out under the authority of the Acts of April 4, 1901, P. L. 65, and May 17, 1901, P. L. 259, does not authorize the construction upon a private road a tramway by a private business corporation having no authority to build and operate tramways to serve the public, where it appears that the public at large could not possibly make use of the tramway for the purpose of operating cars upon it, nor could the public demand as a matter of right that the owner should become a common carrier in a sense of being able to accept such freight as might be offered for transportation.</p> <p>5. In such a Case the fact that the tramway is to be constructed upon a private road does not alter the situation of the parties. The legal status is just the same as if the parties seeking to construct the tramway were undertaking in the first instance to condemn the land of a private owner for the purpose of constructing and operating a tramway over it, because the additional servitude upon the land amounts to a taking in contemplation of law.</p> <p>Equity — Jurisdiction—Condemnation proceedings — Act of May 5,1911, P. L. 167 — Injunction.</p> <p>6. In a proceeding in equity by a property owner to enjoin the construction of a tramway along a private road upon his property under the Act of May 5, 1911, P. L. 167, the property owner has a standing to inquire by what right his property is being taken or injured, and he has the right to proceed in a court of equity to restrain the unlawful taking.</p>

Appeal, No. 414, Jan. T., 1912, by plaintiff, from judgment of C. P. Berks Co., Nov. T., 1912, No. 36, in case of Frank Lauer v. Susan Elizabeth Hoffman and Charles P. Hoffman, her husband. Case stated to determine marketability of title to real estate. Before Endlich, P. J. The opinion of the Supreme Court states the case. Error assigned was in entering judgment for defendant on case stated.

<p>Criminal law — Murder—New trial — Jury—Mistake as to juror —Knowledge of mistake.</p> <p>Judgment of death entered upon a verdict of guilty of murder in the first degree should not be reversed where the sole error alleged is the court’s action in refusing to grant a new trial, upon the discovery some time after the verdict had been rendered that when a certain juror’s name was called, another man with a different first name responded and was sworn, where it clearly appeared that the latter did not intentionally impersonate another, but allowed himself to be accepted as a juror under the honest belief that he was the juror intended to be called, that he was in fact the man whose name the jury commissioner intended to put in the wheel; that he was accurately described as to residence, occupation, middle letter and last name, the only misdescription, resulting from a clerical error, being as to his first name; that there was no resident of the town known by the name as first called; and that the answers of the witness when examined on his voir dire were sufficient to put counsel for the prisoner on notice of these facts.</p>

<p>Appeal, No. 319, Jan. T., 1912, by defendant, from judgment of the Superior Ct., March T., 1912, No. 32, affirming judgment of C. P. Snyder Co., Dec. T., 1910, No. 13, on verdict for plaintiff in case of Charles A. Wagner v. The Purity Water Company.</p> <p>Appeal from Superior Court.</p> <p>The facts appear in the opinion of the Supreme Court and in 50 Pa. Superior Ct. 500.</p> <p>• Plaintiff recovered a verdict in the lower court for $227.08, upon which judgment was entered, which judgment was affirmed by the Superior Court in an opinion by Henderson, J. Defendant appealed.</p> <p>Error assigned was in affirming the judgment.</p>

<p>Constitutional law — Constitution of Pennsylvania, Art. Ill, Sec. 7 — Local and special legislation — Mechanics’ liens — Act of April 22, 1903, P. L. 255 — Special method of collection of debts.</p> <p>The Act of April 22, 1903, P. L. 255, amending the mechanics’ lien law of June 4, 1901, P. L. 431, and providing for a method of recovering for labor or materials furnished for a structure or improvement for purely public purposes, in lieu of the lien given by the mechanics’ lien law, is unconstitutional, because it creates a new method for the collection of a debt due for labor and materials in violation of Article III, Section 7, of the Constitution.</p>

<p>Taxation — Real estate — Assessment—Reduction of assessment— Appeals from hoard of revision.</p> <p>An appeal by an owner of land from an assessment thereof by a board of revision of taxes is properly dismissed, where the party complaining does not allege that its land has been assessed too high, but only that other lands of the same character, and of the same relative or greater value, have been assessed too low.</p> <p>Mineral Railroad & Mining Co. v. Northumberland County Commissioners, 229 Pa. 436, followed.</p>

<p>Insurance — Fire Insurance — Collapse of building — Evidence— Charge of court.</p> <p>1. In an action upon a policy of fire insurance, providing “if a building or any part thereof fall, except as the result of fire, all insurance by this policy on such building or its contents shall immediately cease,” the case was necessarily for the jury, where the evidence was conflicting as to whether the fall of the floors and wall caused the fire, or the fire caused the floors and wall to fafi.</p> <p>2. In such case it was not error for the court to exclude testimony offered by the defendant to show that on a number of occasions, several months prior to the fire, the plaintiff had overloaded the third floor of the building, where the offer was accompanied by an admission by defendant’s counsel that he did not intend to prove that the overloading had any visible effect on the wall.</p> <p>3. Such a ease will not be reversed on the ground that the court below laid too much stress on the testimony of the plaintiff, and too little on the testimony of the defendant, where the court expressly told the jury that he did not pretend to state the testimony of the witnesses with any degree of fullness, and did not deem it necessary, as counsel for both parties had done so in their arguments, and especially where the court had affirmed all of the defendant’s points except the one asking for binding instructions, and concluded his charge by directing the jury to take up and consider the testimony of all the witnesses, and where a consideration of the charge did not indicate that it was inadequate or unfair.</p>

<p>Appeals, Nos. 199 and 200, Jan. T., 1912, by defendant, from judgment of C. P. York Co., Jan. T., 1912, No. 92, on verdict for plaintiff in case of Harry Booth, by Ms father and next friend Edward Booth, and Edward Booth in his own right, v. Henry W. Stokes, Receiver of the York Haven Paper Company.</p> <p>Trespass to recover damage for personal injuries. Before Ross, J.</p> <p>From the record it appeared that Harry Booth, one of the plaintiffs, was injured while at work at defendant’s mill. Booth was seventeen years old, and had been working at this mill for about two years prior to the time of the accident. Before the day he was hurt, he had not worked upon the pump, in the cleaning of which he was injured, and he had not seen anyone else cleaning it. The pump was operated by gears. There was a partial guard that covered the gears at the point where they meshed and covered the smaller of the gears and about half of the larger gear, leaving about half of the larger gear unguarded. Booth was given no instructions as to how to clean the pump and was not told of dangers that might be encountered in cleaning it. The floor where he stood was covered with oil and was slippery. He laid his hand upon the partial guard above described, to keep from falling against the machinery, and his thumb was caught between the large gear and the guard and was crushed, so that amputation was necessary.</p> <p>Verdict for Edward Booth for $845.91, and for Harry Booth for $1,560.00, and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant, and to enter judgment for defendant n. o. v.</p>

<p>Practice, O. G. — Decree—Uncertainty.</p> <p>An Orphans’ Court, in the adjudication of an estate, made the following decree: “The rule granted in this case is made absolute, and it is directed that the administrators of the estate of Jesse Forry, deceased, pay to the holders of the decedent’s promissory notes specified in the depositions filed in this case on or before the first Monday of August, 1912, their respective ratable proportions of the money awarded to said administrators for that purpose, by the auditor distributing said decedent’s estate, to wit: the sum of $1,815.92, with interest from the 2nd day of December, 1907.” Held, the decree does not sufficiently indicate to what persons the notes are to be paid, and as their identity was not fixed by the depositions the decree is void for uncertainty.</p>

<p>Appeal, No. 183, Jan. T., 1913, by the Sunbury and Susquehanna Railway Co., from decree of C. P. Northumberland Co., No. 374, In Equity, awarding an injunction, in case of the Borough of Sunbury v. the Sunbury and Susquehanna Railway Co., the Sunbury and Selinsgrove Electric Railway Co., the Northumberland County Traction Co., the Sunbury, Lewisburg and Milton Railway Co., and W. H. Greenough, President, and Boyd A. Musser, Secretary.</p> <p>Bill in equity for an injunction to restrain defendants from laying rails in certain of plaintiff’s streets. Before Moser, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded a preliminary injunction, which was continued until final hearing. The Sunbury and Susquehanna Railway Company appealed.</p> <p>Errors assigned, among others, were in awarding the injunction, and in approving plaintiff’s injunction bond.</p>

<p>Appeal, No. 51, Jan. T., 1913, by Jacob Schermer and Samuel Miller, Jr., from judgment of C. P. Lackawanna Co., Oct. T., 1911, No. 194, on findings of referee in favor of plaintiff, in case of Keystone Brewing Company or R. C. Wills v. Jacob Schermer, Defendant, Samuel Miller, Jr., Terre Tenant, and M. Nagelberg, formerly a Terre Tenant.</p> <p>Scire facias to revive and continue tbe lien of a judgment on certain real estate.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe case was referred to a referee, who found for plaintiff. Exceptions to tbe referee’s findings were dismissed by tbe court and judgment was entered for plaintiff. Defendants appealed.</p> <p>Errors assigned were in dismissing tbe exceptions and in entering judgment for plaintiff.</p>

<p>Libel — Libel per se — Libel by innuendo — Province of court and jury — Libelous matter in judicial proceedings — Privileged publication — Evidence—Mitigation of damages.</p> <p>1. Written words injurious to one in his business, calling, trade, or profession are libelous, and if the common understanding of mankind applies a libelous meaning to them, they are to be so construed as a matter of law; if, however, the words are of dubious import, or are not in themselves libelous, but their meaning is averred by innuendo, it is for the court in civil cases to instruct the jury whether they are libelous, assuming the innuendo to be true; it is for the jury to say whether they were used in the sense ascribed to them by innuendo.</p> <p>2. Proceedings in courts of justice, as taken from the public records, may be freely printed and published, even though libelous, without subjecting the publisher to liability for injuries caused thereby.</p> <p>3. Where, in trespass for libel, it appeared that defendant’s newspaper had stated the plaintiffs, who were loan and investment agents, had induced an investor to invest $3,000 in a mortgage covering property assessed at only $1,750; — that plaintiffs had persuaded such investor to pledge the mortgage with a trust company as security for a loan of $1,625 which plaintiffs had negotiated for him; — that said investor “could secure no satisfaction” when he called on the day before the mortgage matured to arrange for the payment of the balance of the loan then desired by him; — that the mortgage was sold by the pledgee for $1,700; — that no benefit was derived by the investor from this investment, but he was charged six per cent, interest on the loan; — that an action for deceit had been brought; — and the following headline was printed to the article: — “Suit for Damages; Alleges Deceit.”— and plaintiffs averred the publication to be libelous per se and by innuendo, the court rightly refused to charge that the publication was libelous as a matter of law, but as to the innuendo, was justified in leaving to the jury the question whether-the article, read as a whole, impeached plaintiff’s honesty in their business; the court also correctly charged that the matter in the headline was privileged, even though libelous, since the praecipe in the suit mentioned in the article, named the action as “trespass for deceit.”</p> <p>4. Where, in an action for libel, it appeared that the statements complained of had been taken from a copy of the plaintiff’s staterasnt of claim in an action for deceit, given to defendant’s reporter by plaintiff’s attorneys in such action before the original statement was-filed, the statement of claim was admissible in evidence, as tending to show how the publication happened to be made, and in mitigation of damages if it ought not to have been made.</p> <p>Practice, Supreme Court — Assignments of error — Exceptions to rulings.</p> <p>5. Assignments of error complaining of rulings to which no exception has been taken at the trial will be dismissed.</p>

<p>Appeal, No. 410, Jan. T., 1912, by respondents, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1910, No. 2834, of ouster on quo warranto in case of Commonwealth of Pennsylvania ex rel. B. Prank Myers, John S. Alcorn, M. P. Dickeson, Charles H. Hall and Thomas H. Walters, v. W. Elmer Heilman, Thomas P. Ashford, John R. McKelvey, George S. Pord and A. H. Leslie.</p> <p>Quo warranto to oust the respondents from office in a beneficial society.</p> <p>Audenried, J., filed the following opinion:</p> <p>• The relators were elected to the offices in dispute by a body of members of the corporation, known as the State Council of the Junior Order of United American Mechanics of the State of Pennsylvania, assembled on September 20, 1910, at the Ensign Building in the City of .Erie. The respondents were elected to those offices by another body of members of the corporation assembled on the same day at the Reed House in that city. The fundamental question in the case, therefore, is, which of the two bodies of members is properly to be regarded as the corporation above mentioned, or, rather, which of the two meetings held as above mentioned, at Erie on the date named, was the lawful annual meeting of that corporation.</p> <p>Although the terms for which the several parties claim to have been elected to the offices in dispute expired before the argument of the case, the question here presented is by no means merely academic. There are still two rival bodies made up of individuals all claiming to be members of the State Council of Pennsylvania, each of which, as the result of what happened at Erie on the date mentioned, asserts that it is the state council and maintains an organization as such. Some of the local councils adhere to one of these and some to the other. The affairs of the order in Pennsylvania are in confusion, and it is impossible to settle them until the courts of the Commonwealth have passed upon the situation.</p> <p>For over forty years prior to September 20, 1910, the corporation to which reference has been made, and whose offices are here in dispute, had been connected with an association known as the Junior Order of United American Mechanics. This is a secret, fraternal and beneficial society which now includes almost a quarter of a million members, who are scattered throughout all of the United States. They are organized in bodies known as councils. In most states the several councils of the order as associated, by representation, in an organization known as the state council, which is established for certain purposes of local government. All the members of the order are associated through representation in a higher governing body styled the National Council of the Junior Order of United American Mechanics, their representation therein being obtained through their local councils and their respective state councils. This form of association is a familiar one. The reports of the decisions of the courts of this State show many instances of its adoption by other fraternal societies, and it presents numerous points of similarity to the systems of organization adopted by certain ecclesiastical bodies.</p> <p>Whatever may have been its origin, historically, and the course of the development and growth of this order, it is not open to dispute that in the year 1869 the State Council of Pennsylvania was a mere administrative agency in the government of the order’s members in this State. It was made up in large part of representatives chosen by the local councils. These representatives were always changing. It was assigned a certain part in the business of the order, but outside of the scope of its appointed functions it had absolutely no power. It is true that for certain purposes it was treated as an entity by the by-laws of the order (in which term are included the so-called National Constitution and National Laws); but'its acquiescence in the view that its status was a subordinate one appears plainly in what are styled the Constitution and Laws of the State Council. It was a mere dependency of the order and was, of course, subject to the national council which was the order itself assembled in the persons of its representatives.</p> <p>If the relationship just outlined as that existing in the year 1869 between the state council on the one hand and the Junior Order of United American Mechanics, and its national council, on the other, still continues unmodified, it is quite clear what disposition should be made of this case.</p> <p>The question of the legality of the two meetings at Erie and of the title to the offices of the state council has been decided by a tribunal on which the power to adjudicate such disputes is conferred by the by-laws of the order.</p> <p>On December 12, 1910, in proceedings before the National Judiciary of the Junior Order of United American Mechanics instituted by the relators in this case against the persons named as respondents herein, it was adjudged by that tribunal that the meeting organized at the Ensign Building by those members of the State Council who had left the meeting convened at the Reed House, on September 20, 1910, was held in accordance with the laws of the order, and was, therefore, a lawful session of the state council, and that the meeting held at the Reed House under the presidency of Mr. McKelvey was irregular and without authority to act as the state council. It was also held by the national judiciary that the relators and not the respondents were duly elected to the several offices in dispute here.</p> <p>If by its rules, or by-laws, a society, incorporated or voluntary, has appointed a certain judicatory to hear and determine controversies between its members in relation to its offices, or with respect to the right of membership, or rights incidental to membership, the judgment of such a tribunal is to be regarded as conclusive.</p> <p>This results because due effect must be accorded to contracts which are not repugnant to law. The provisions of the by-laws of a society constitute, in part, the contract under which its members are associated. New terms may not be read into them, nor may their lawful provisions be disregarded. The law does not forbid the selection by the parties to a contract of an arbitrator to adjust or settle disputes arising under it. The courts of the Commonwealth will therefore, give effect to the by-laws of societies by which tribunals are created for the decision of the internal disputes of such organizations, and they will not sit to hear appeals from the findings of the umpires or referees so appointed. It follows, therefore, that what has passed in rem judicatam, in the regular course of proceeding before a tribunal such as the national judiciary of this order, cannot be disturbed here provided that the dispute that it assumed to decide was one within its jurisdiction; that the parties whose rights were involved were given an opportunity to appear and be heard; and that no fraud was practiced: Crow v. Capital City Council, 26 Pa. Superior Ct. 411; Badger v. Aeolian Council No. 17, 39 Pa. Superior Ct. 406; Derry Council No. 40 v. State Council, 197 Pa. St. 413.</p> <p>Under this view of the law, and upon the assumption that since 1869 nothing has occurred that has affected the status of the State Council, the questions open for investigation are: first, whether the controversy decided by the decree entered by the national judiciary on December 12, 1910, fell within its jurisdiction; second, whether the respondents in the proceedings before that tribunal had an opportunity to appear and defend themselves; third, whether the proceedings were conducted regularly; and fourth, whether they are tainted by fraud. If the adjudication of the dispute turned upon the application of any by-law of the order, the validity of that by-law is also to be considered by the court and the question of its reasonableness must, therefore, be decided: Commonwealth v. Union League, 135 Pa. St. 301.</p> <p>1. Was- the question whether the offices of the state council for the year beginning September 21, 1910, belonged to the relators or to the respondents within the jurisdiction of the national judiciary? Upon this point the constitution (so-called) of the national council leaves no room for doubt. By section 10 of Article IX the national judiciary is vested with exclusive jurisdiction of “all controversies whatsoever, the character of which is such that there is no inferior tribunal having complete jurisdiction.” The only judicatories of the order inferior to the National Judiciary are the local councils and the state councils. It is not, of course, contended that any of the former had “complete jurisdiction” over this question, nor is it claimed that the dispute over the offices of the State Council of Pennsylvania may be decided by the judiciary of the council of another state. It follows then, that if jurisdiction over this matter is not in the State Judiciary of Pennsylvania it must be in the National Judiciary. But the question who are the officers of the state council necessarily involves the question who are the lawful members of the state judiciary (see Sections 3 and 4 of Article Y of the Constitution of the state council); and before it can be decided which of the two bodies claiming to be the state judiciary is the proper tribunal to determine who is the lawful state councilor, the very question to be laid before the tribunal must itself be settled. It is clear, therefore, that this is a case over which none but the national judiciary can have complete jurisdiction and that to the national judiciary it of necessity appertains.</p> <p>2. It appears by the agreement of the parties hereto that the respondents were duly served with notice of the proceedings instituted against them by the relators before the national judiciary; that they were apprised of the time and place fixed by the latter for the hearing of the cause; and that their failure to appear before that tribunal was intentional on their part.</p> <p>3. It is not alleged by the respondents that the formal requirements of the by-laws of the order and rules of the national judiciary were not fully complied with in the proceedings in which the right to the offices of the state council was determined; and a thorough examination of the record in those proceedings establishes their regularity in all essential points.</p> <p>4. There is nothing in the facts agreed upon that would warrant a suspicion that in the proceedings under consideration there was a fraudulent practice on the part of the relators or unfairness on the part of the national judiciary. The petition by which the proceedings were initiated sets forth the facts in substantial accord with the agreed statement of facts filed in this case. The matter was heard ex parte, it is true, but it was not disposed of by a decree pro confesso or a judgment by default. Its decision was based on testimony taken in support of the relators’ allegations, which the respondents had an opportunity to controvert had they seen fit to do so.</p> <p>5. It is contended that in the determination of the issue before the national judiciary in the case of Myers, et al., v. Heilman, et al., was necessarily involved the question of the membership of Mr. McKelvey in the order; that his status depended on the legality of his expulsion therefrom; and that this in turn depended on the validity of the by-law of the order, for the violation of which the punishment of expulsion had been inflicted on him. It must be conceded, we think, that if the decree entered December 2, 1910, is to be regarded as sound, it can only be so because the by-law of the national council that Mr. McKelvey was found to have violated was a valid one.</p> <p>It is to be observed at this point that the sole objection raised to the proceedings that resulted in the expulsion of McKelvey and his fellow officers rests to the assertion that the state council entered judgment therein by default within less than ten days after the day fixed for trial. The record, however, does not show that the judgment- was entered by default. The defendants therein appeared and answered. It is true that they submitted no evidence at the trial, but the charge against them was not disposed of pro confesso. The complainants proved their case and the decree was entered on the proofs. Such a case is not within the application of Section 4, Chapter 6, Division III of the National Laws.</p> <p>The by-law that the defendants in that case were accused of violating was Section II, Chapter 1, Division VI, of the National Laws. This requires obedience by any board of officers of the association to any mandate or order issued by any other board of officers in conformity with law, under penalty of reprimand, suspension or expulsion from the order. As some such provision seems absolutely necessary to secure proper cooperation among the various officials of the order, this regulation must be held a reasonable one and therefore valid. We do not see how it can be attacked on the ground that compliance with it would have involved the defendants in disobedience to the mandate of the state council whose officers they were. It was impossible for an order of the national board of officers issued in conformity with law, to conflict with any lawful resolution of the state council. If both were lawful there could be no conflict between them. If they conflicted, either the order or the resolution was without basis in law. It is no objection to a by-law requiring obedience by all officers of the order to the lawful mandate of their superiors that this casts upon them the necessity of deciding which of two conflicting mandates emanating from different sources is lawful and therefore entitled to respect. All are presumed to know the law and are held to act on their knowledge of it at their peril.</p> <p>It must have been known to the respondents that the state council had no right to hold back the taxes collected for the national council as a sort of pledge to secure the redress of grievances, and that its order for the payment of the sum in hand, if approved and vouched by themselves, must be treated as if stripped of this improper condition and complied with at once. The demand for the taxes by the national board of officers made their duty to pay them very clear and the leniency displayed by the national judiciary in the allowance of a locus penitentise of more than seven months before enforcing the penalty that they had incurred left them no room for complaint. .</p> <p>It is clear, we think, that the judgment of the national judiciary on the question of the right of the several relators to the respective offices of the state council of Pennsylvania has not been impeached upon any of the grounds above discussed, and that, therefore, unless the relations between the state council and the national council or the order at large have been altered since the year 1869, it is conclusive as to the respective rights of the parties to this cause.</p> <p>It is urged, however, that on March 1, 1870, the state council of Pennsylvania became a corporation; that the national council was incorporated on April 10, 1893; that these corporations are absolutely separate and organically distinct, the only tie between them being a contractual one, the severance of which could result in nothing but a claim for damages; that the national council has no power to deprive the respondents of their offices in the corporation known as the state council; and that the case presents merely an attempt on the part of one corporation to control the internal affairs and management of another, authority to do which it does not possess under the laws of this Commonwealth.</p> <p>It is true, speaking generally, that before the law every corporation is a separate and distinct body, dissociated from all others. It is likewise true that an attempt by one corporation to interfere with the internal organization of another must fail. Such, however, is' not the character of the present proceeding. Neither of the corporations named is a party to it. It arises out of a controversy between the members of one of them over the question of the right to hold certain offices therein. It is a contest between individual members of the same corporation.</p> <p>It is conceived that the pivotal point on which the case turns is the question as to how far the original relations between the Junior Order of United American Mechanics and the state council of Pennsylvania have been affected by the incorporation of the latter body.</p> <p>In the 5th section of the Act of March 1, 1870, by which the state council of Pennsylvania was granted corporate powers, it was provided that the by-laws of that organization should continue to bind the corporation until altered, amended or abrogated. In the constitution and laws of the state council then in force, and, in this respect, unchanged down to the time of the events out of which this case originated, it was stipulated that they were in conformity with and subject to the laws of the national council. It was provided that they might be amended, but the agreement of the members, inter se, and not with the national council, was that they were not to be altered except on the approval by the national council’s committee on law of the changes proposed. The plain effect of these and similar provisions, in the constitution and laws of the state council was to incorporate in them the by-laws of the national council then operative and as subsequently amended in accordance with the then existing provisions therefor. In other words, the constitution and laws of the national council were as much the by-laws of the state council at the time of the incorporation of the latter as were what are termed its own constitution and laws; and, continued in binding effect by the Act of March 1, 1870, they govern that corporation to-day. This does not result from any contract between the two bodies but from the membership compact between those who united to form the state council, the obligations imposed by which have been assumed by their successors.</p> <p>It is argued that the effect of this view (in which, it may be observed, all parties concurred for forty years) is to leave the state council of Pennsylvania in a condition of subordination to the national council and to interfere with its independence as a separate and distinct legal entity. This, in a sense, we think must be granted; but that is exactly what the Act of 1870 indicates plainly as the intent of the legislature.</p> <p>The phraseology of that act is peculiar. Most acts of incorporation purport to erect into a corporation certain persons specified by name and such as may become associated with them. The Act of March 1, 1870, does not do so. It makes a corporation out of a class of persons. To ascertain who the corporators are, reference must be made to the records of an unincorporated society. Section 1 enacts that the members of the state council of the Junior Order of the United American Mechanics and such other persons, whether minors or adults, as may hereafter become members thereof, are hereby created a body politic and corporate. The object in this was not to sever the relations of the state council with the rest of the order but for certain purposes, to give it legal personality. In other words, the state council was left just as it was before incorporation except that it was endowed with corporate powers.</p> <p>That the new corporation was intended to stand not independent and alone but in a relation of some kind to the Junior Order of United American Mechanics appears from the wording of three other clauses of the act. By Section 2 members of the corporation are granted power to take, purchase, hold and receive lands, money, etc., to them and their successors — not to their own use, but — “for the use of said association.” Section 3 gives them power to make such by-laws, rules and regulations as shall be necessary for their government and the “promotion of the principles of said association.” In Section 5, as stated above, it is provided that the by-laws of the state council then in force should be good and valid until altered, amended or abrogated, and by these the relation of the state council to the order at large plainly appears.</p> <p>We have no doubt, therefore, that when full effect is accorded to the terms of the fundamental contract between the members of the corporation known as the state council of Pennsylvania,-the intention of the legislature as evinced by the Act of March 1, 1870, is not violated, and no reason has been pointed out to us why every term of the contract of membership in this corporation should not be enforced on the application of any of. its. members.</p> <p>It follows, logically, we think, that the relators have the right to ask the court in determining what are the rules affecting their status, to refer to the constitution and laws of the national council and enforce them, not as the by-laws of another corporation, but as part of the by-laws of the state council itself.</p> <p>When this is done we find that one of the terms under which the members of the state council are associated consists of a provision for the arbitration by the national judiciary of just such disputes as that here presented; and under this view of the matter, the same effect must be accorded to the decision of that tribunal as it has been above demonstrated it would have been entitled to if the state council had not been incorporated.</p> <p>Whether the questions who were legally elected officers of the state council on September 21, 1910, and which of the two meetings then held at Erie was the lawful session of the state council are to be treated as questions affecting the Junior Order of United American Mechanics at large, or more narrowly, as questions limited in their effect to the state council alone, the result is the same. They must be decided by the national judiciary either as involving a dispute in the order itself, or as presenting a controversy in an organization separate and distinct from the Junior Order of United American Mechanics, the settlement of which has been referred to the tribunal of that order as expert in such matters, by an agreement of arbitration entered into by all parties in interest. Having taken cognizance of these questions, the national judiciary, after giving both sides a fair chance to be heard, has regularly proceeded to decide them; and its judgment is conclusive on the parties before this court. The matter is now res adjudicata.</p> <p>But, say the respondents, the national council as a corporation has no power to deprive us of offices in another corporation. This may be granted. It has no such power, and it has not attempted to exercise it. The rer spondents have lost their title to the contested offices, under the by-laws of the state council itself, through the decision of referees appointed thereby to investigate and adjudicate their rights.</p> <p>Much importance is attached by counsel for the respondents to the fact that, at one of the rival meetings of the members of the state council at Erie, it was resolved to sever whatever contractual relations existed between that body and the national council, this step being taken before the question as to the right to hold the offices in the state council was laid before the national judiciary. We do not regard this fact as having the slightest bearing on the disposition of the case. If the meeting at which the resolution was adopted was not a laAvful session of the state council the resolution was, of course, a nullity. But it is without effect on this case even if adopted at a legal meeting of the corporation, because, in the first place, it purports to affect only the contract between the two corporations,, and not the contract between the members of the state council, and, therefore, did not disturb rights and obligations under its by-laws; and, in the second place, because if the resolution be construed as an attempt to abrogate the right of the members to have such questions as those here presented adjudicated by the national judiciary as arbitrator, it is necessarily implied that it is an amendment of the state council’s by-laws, and these could be altered only by a particular method of procedure to comply with which no attempt was made.</p> <p>Judgment of ouster was thereupon entered In favor of the relators Avith costs. Respondents appealed.</p> <p>Error assigned, among others, was the judgment of the court.</p>

<p>Appeal, No. 14, Jan. T., 1913, by respondents, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1912, No. 2736, awarding mandamus in case of Chelten Trust Company v. Rudolph Blankenburg, Mayor of City of Philadelphia, and Michael J. Ryan, City Solicitor of the City of Philadelphia.</p> <p>Petition for writ of mandamus. Before Martin, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The plaintiff demurred to defendants’ return, and the court sustained the demurrer. Respondents appealed.</p> <p>Error assigned was in sustaining the demurrer.</p>

<p>Appeal, No. 16, Jan. T., 1913, by defendant, from judgment, of C. P. No. 1, Philadelphia Co., Dec. T., 1907, No. 2606, on verdict for plaintiff in case of Merritt Hall, Administrator of the Estate of Jacob C. Saunders, v. The West Jersey & Seashore Railroad Company.</p> <p>Trespass for negligently causing the death of plaintiff’s decedent. Before Magill, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,500.00, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in admitting certain evidence, and in refusing to give binding instructions for defendant.</p>

<p>Appeal, No. 151, Jan. T., 1912, by defendant, from judgment of C. P. Schuylkill Co., Nov. T., 1905, No. 352, on verdict for plaintiff in case of George W. Shoemaker v. Barbara Riebe, Executor of the Estate of Herman Riebe, deceased.</p> <p>Assumpsit to recover the balance due on a contract. Before Shay, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,124.46, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various instructions to the jury.</p>

<p>Appeal, No. 231, Jan. T., 1912, by Frank Hess and Sallie S. Hess, from decree of C. P. No. 4, Philadelphia Co., March T., 1910, No. 2526, awarding certain stock to plaintiff and cross plaintiff, on bill in equity in case of Susan A. Sullivan, Administratrix of the Estate of James J. Sullivan, deceased, v. Frank Hess and Sallie S. Hess, and J. Sullivan & Sons Manufacturing Company,' and cross-bill in case of J. Russell Sullivan v. Susan A. Sullivan, Administratrix of the Estate of James J. Sullivan, deceased, Frank Hess and Sallie S. Hess and J. Sullivan & Sons Manufacturing Company.</p> <p>Bill in equity for a declaration that certain stock claimed by one of the defendants was the property of plaintiff’s decedent, and to enjoin a transfer thereof on the books of the company. A cross bill was filed by a third person by leave of court, claiming a part of the stock in question. Before Audenried, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Errors assigned were various findings of the trial judge and the decree of the court.</p>

<p>Appeal, No. 189, Jan. T., 1912, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1910, No. 4349, on verdict for plaintiff in case of Cornelius Haney v. Henry Reed Hatfield.</p> <p>Assumpsit to recover damages for breach of a contract for the sale of land. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $40,000, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings of the trial judge, and various instructions to the jury.</p>

<p>Contracts — Contracts for the sale of land — Specific performance —Purchase money — Assumpsit—Affidavit of defense — Insufficient averments.</p> <p>1. In an action of assumpsit on a contract for the sale of land to recover the purchase money, an affidavit of defense averring that plaintiff vendor had not tendered a deed within the time fixed for the performance of the contract, and that no release had been tendered for encumbrances admittedly on the land, and that a provision in the contract that defendant should forfeit a deposit of $100 as liquidated damages, if she should refuse to perform, was a bar to plaintiff’s recovery of the purchase price, was rightly held insufficient, where it was admitted on the record that within the time for performance fixed by the contract, defendant had refused to perform, and that all the encumbrances could be discharged out of the purchase money, defendant’s rights in such case being sufficiently protected by a provision of the order entering judgment-requiring the deposit of a deed to the premises in court for defendant’s use, and the release of the encumbrances before execution could issue.</p> <p>2. In such case the plaintiff was not prevented from electing to compel specific performance of the contract by reason of the clause providing for the payment of damages in case of breach.</p>

<p>Appeal, No. 66, Jan. T., 1913, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1910, No. 1162, on verdict for plaintiff in case of John P. Kurtz and Catharine Kurtz, his wife, y. Ashton S. Tonrison.</p> <p>Trespass to recover damages for personal injuries. Before Ormerod, J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $7,000, which the court reduced to $5,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to give binding instructions for defendant, and to enter judgment for defendant n. o. v.</p>

<p>Beneficial associations — Character of business — Conflict of laws • — Certificates of membership — Insurance—Insurance policies — Act of May 11,1881, P. L. $20 — By-laws.</p> <p>1. The character of the business transacted in Pennsylvania by a beneficial association incorporated under the laws of Alabama, when the subject of judicial inquiry in Pennsylvania, is to be determined according to the law of Pennsylvania, and the law of. Alabama does not apply-</p> <p>2. In an action of assumpsit upon certain certificates of membership in a so-called beneficial association to recover death benefits as provided therein, the defense was that the deceased member had committed suicide, and that payments in such case were prohibited by the by-laws of the association, which were incorporated by reference in the certificates, but were not attached thereto or printed therein. It appeared that the payment of definite sums was provided in the certificates, which were called “policies” in circulars and advertisements issued by defendant, that applications for membership contained questions and stipulations usual in applications for life insurance, and that in other ways the insurance features of the association’s activities were emphasized, and but little attention was paid to the social or benevolent features: Held, that the business of such association was a life insurance business and the certificates were in law life insurance policies, and defendant was precluded from setting up the defense of suicide, and from offering the by-laws in evidence as part of the contract, by the Act of May 11, 1881, P. L. 20, providing that by-laws referred to in insurance policies as part of the contract shall be contained therein or attached thereto, otherwise they shall not be received in evidence, or be considered a part of the policy in any controversy between the parties.</p>

<p>Appeal, No. 357, Jan. T., 1912, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1908, No. 1045, for defendant non obstante veredicto, in case of Annie Clark, who sues for herself as well as for her minor children, Thomas J. Clark and James Clark, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Carr, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The jury found a verdict for plaintiff for $9,750. The court subsequently entered judgment for defendant non obstante veredicto.</p> <p>Error assigned, among others, was in entering judgment for defendant non obstante verdicto.</p>

<p>G ontracis — G onsiruction — Breach—Damages—Evidence.</p> <p>An agreement by a trust company, holding mortgages on certain vacant lots, with a tiling company, that the equity of redemption in one of such lots, which was also controlled by the trust company, should be security for indebtedness to be incurred by a contractor who was to build houses on the lots for necessary tiling, and that should the contractor fail to pay such indebtedness, the trust company would convey or mortgage such lot to the tiling company, or would pay its bill from the proceeds of the sale thereof, contemplated that the lot would be improved and that the tiling company would derive benefit from such improvement, especially as the equity of redemption was worthless while the lot was unimproved because of heavy encumbrances thereon, and the default of the contractor while the lot was unimproved did not deprive the tiling company of possible advantages in case of the lot’s improvement, but merely fixed tbe amount of its claim against the lot. In an action of assumpsit by the tiling company to recover damages for the failure of the trust company to perform its agreement, the court erred in excluding evidence of the increase in value of the lot after the contractor’s default, due to the construction of a house thereon by defendant, which was ofEered for the purpose of showing the extent of plaintiff’s damages.</p>

<p>Appeal, No. 75, Jan. T., 1913, by Sallie W. Howes, from decree of O. C. Philadelphia Co., Jan. T., 1907, No. 224, sustaining exceptions to adjudication in Estate of John W. Paxson, deceased.</p> <p>Exceptions to adjudication.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained the exceptions in an opinion filed by Lamorelle, J.</p> <p>Error assigned was in sustaining the exceptions.</p>

<p>Evidence — Cross examination — Irrelevant matters — Contradiction of witnesses.</p> <p>Where in an action to recover damages for personal injuries sustained by an infant plaintiff in consequence of being run over by defendant’s trolley car, the testimony of plaintiff’s chief witness tended to show that defendant was negligent and on cross-examination the witness testified as to various irrelevant and immaterial matters, and the defendant then offered evidence to contradict the witness on these immaterial points, such evidence is properly excluded; if the truthfulness of the witness was to be attacked, it should have been by showing a bad reputation for truth and veracity in general.</p>

<p>Negligence — Automobiles •— Evidence — Conflicting evidence — Case for fury.</p> <p>1. Where by making due allowances for the position of a witness and the form of the questions and answers on cross-examination, it is possible to harmonize statements apparently conflicting w.ith his testimony in chief and to draw justifiable inferences from the testimony as a whole, it is for the jury te say how they will find.</p> <p>2. In an action of trespass to recover damages for personal injuries, resulting from tbe negligent driving of an automobile by defendant’s employee the defense was that on the day of the accident, which was Sunday, the driver of the car was not acting within the scope of his employment, but was taking a pleasure trip, in no way connected with defendant’s service; the driver, testifying for plaintiff, said that he was “testing” the car, which was new, that testing cars was his only duty, and that at times he worked on Sunday; on cross-examination, he said that he had asked for the car, that he was taking a pleasure trip, and had visited his home town; on re-examination he said that he was “running in” the car at the same time, by which was meant loosening it up, making necessary adjustments, etc., and that “it was understood” when defendant’s foreman allowed him to take the car, that it was to be tested. Held, that the witness had not denied, retracted, or explained away his testimony given in chief, in such a way, or to such an extent, as .would have justified the court in giving binding instructions .for 'the defendant.</p>

<p>Waste — Damages—Recovery by reversioner — Statute of limitations — Trustees—Trustees for charitable use — Measure of damages —Value of coal mined — Ascertainment of-value — Title to land— Question for jury.</p> <p>1. Damages for coal unlawfully mined and converted for many years, by the assigns of a tenant for 999 years, can be recovered by the reversioner, notwithstanding that he will not be entitled to possession for many centuries, but the recovery may be only as to coal so mined and converted within six years before the bringing of the action, unless it appear that the injury was not discovered until within six years before the bringing of the action, and that it could not, in tbe exercise of reasonable vigilance, have been discovered earlier.</p> <p>2. The fact that such reversioner is a trustee will not toll the statute as to injuries occurring more than six years before the beginning of the action, where the controversy is between cestuis que trustent and trustees on one side, and strangers on the other, nor will the fact that the trustee holds for a charitable use prevent the running of the statute as the statute makes no exception in ¡such cases.</p> <p>3. Damages for such a trespass should be measured by the acreage value of the coal in a solid body, except in those cases where the coal, by reason of its location, has a per ton value for operating purposes, when recovery on such basis may be allowed.</p> <p>4. Where the owner of coal lands leased the surface thereof to a tenant for years whose assignee mined and removed coal for a period of twenty-seven years, after which the reversioner, having stopped the commission of further waste by injunction proceedings, brought an action of trespass against the assignee of the tenant for the value of the coal mined, the finding of the court in the suit in equity that plaintiff did not have such notice of the trespass as to bar his right to the injunction on the ground of laches, was not an adjudication that plaintiff had no sufficient notice to start the running of the statute of limitations on claims for coal mined more than six years before the action was brought.</p> <p>Real estate — Title to land — Description—Court and jury.</p> <p>5. Where there is uncertainty as to what lands are included in a description or there is a doubt as to the boundaries or location or limits of land sold, evidence aliunde may be resorted to for the purpose of aiding a jury to determine what land was intended to be included in the grant.</p> <p>6. Where the question whether or not eight acres of the land in suit had been included in a grant of the rest of the land of plaintiff depended on evidence, partly of record and partly oral, the court erred in not submitting it to the jury.</p>

Cross appeal, No. 9, Jan. 9., 1913, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1910, No. 486, on verdict for plaintiff in case of The Trustees of the Proprietors of Kingston v. The Le-high Valley Coal Company. Trespass to recover damages for coal unlawfully mined and converted to defendant’s use. Before Strauss, J. The facts appear in the opinion of the Supreme Court and in Trustees of Kingston v. L. V. C. Co. (No. 1), 241 Pa. 469.

Appeal, No. 30, Jan. T., 1913, by defendant, from judgment of C. P. Clearfield Co., May T., 1909, No. 322, on verdict for plaintiff in case of Sonman Shaft Coal Company v. Pennsylvania… Held: that a party may not sit silent and take chances of a verdict and then if adverse complaint of a matter which if error would have been immediately corrected by the court: Commonwealth v. Razmus, 210 Pa. 609; Reznor Mfg. Co. v. Railroad, 233 Pa. 369; Nowlis v. Hurwitz, 232 Pa. 154.

Appeal, No. 53, Jan. T., 1913, by defendant, from judgment of C. P. Clearfield Co., May T., 1908, No. 222, on verdict for plaintiff in case of Stineman Coal Mining Company v. Pennsylvania Railroad Company. Trespass to recover damages for unlawful discrimination in the distribution of coal cars.

Appeal, No. 81, Jan. T., 1913, by defendant, from judgment of C. P. Clearfield Co., Dec. T., 1911, No. 148, on verdict for plaintiff in case of Clark Brothers Coal Mining Company v. Pennsylvania Railroad Company. Trespass to recover damages for unlawful discrimination in the distribution of coal cars.

<p>Carriers — Railroad companies — Discrimination in rates — Practice — Statement of claim — Amendments—New cause of action— Evidence — Intrastate commerce — Unlawful charges — Voluntary payments — Statute of limitations — Concealment.</p> <p>1. In an action of trespass to recover damages from a railroad company for unlawful discrimination in allowing rebates and drawbacks to plaintiff's competitors, plaintiff was not entitled to amend its statement of claim so as to claim damages for acts of discrimination not charged in the original statement, and alleged to have occurred more than six years before the application to amend was made, as such amendment would set up a new cause of action, barred by the statute of limitations; or to change by amendment an action for unlawful discrimination, at the common law to an action for the recovery of the penalties prescribed by the Act of June 4, 1883, P. L. 72, in cases of unlawful discrimination, where the application to amend was made more than six years after the discrimination complained of was practiced.</p> <p>2. Where in such action plaintiff contended that defendant’s fraudulent concealment of its discriminatory practices had tolled the running of the statute of limitations as to discriminations practiced more than six years before the action was brought, but the only evidence offered in support of the alleged concealment was that defendant’s coal freight agent had told the president of the plaintiff company that in future plaintiff would be charged the same rates as other shippers, and would be notified of any additional concessions made to other shippers, the court did not err in holding the evidence offered insufficient to toll the statute of limitations.</p> <p>3. Recovery for discrimination in rates charged plaintiff on certain shipments consigned to it at a point near the border of the State was properly allowed, as such shipments were intrastate- shipments, although plaintiff might later have sent them to points outside the State.</p> <p>4. Where in such action it appeared that plaintiff had paid the freight demanded by defendant on shipments as to which the discrimination was alleged, though plaintiff knew that defendant was allowing other shippers unlawful rebates on similar shipments, plaintiff was in no way precluded from recovering damages measured by the rebates allowed its competitors, even though its payment of the charges demanded was voluntary, as plaintiff was not seeking to recover amounts paid in excess of the lawful charge, but damages for breach of defendant’s duty as a common carrier not to discriminate unduly against plaintiff..</p>

<p>Negligence — Railroads—Collision—Case for jury.</p> <p>In an action of trespass to recover damages from a railroad company for personal injuries sustained by an employee of a coal company in a collision, it appeared from plaintiff’s evidence that coal caTS of his employer, on "which plaintifE was riding in the course of duty, after being unloaded into vessels on an overhead trestle, had been returned by gravity to a track connecting with defendant’s main track, and had collided with cars of defendant stored on £aid track, upon which by long usage and custom no cars were to be placed by defendant without warning to the employees of the coal company, which had not been given in this instance, and that plaintiff’s view was obscured by a dense fog. Held, the case wa3 for the jury and a verdict and judgment for plaintiff was sustained.</p>

<p>Practice, C. P. — Service of process — Surety companies — Act of March 22,1911, P. L. 23 — Statutes—Retroactive statutes — Assumpsit — Affidavit of defense — Insufficient averments.</p> <p>1. In an action of assumpsit to recover from a surety company the amount of a bond given by defendant to secure the faithful performance by a third party of a contract to furnish labor and materials, where the home office of defendant was located in a different county from the county in which the action was brought, and defendant was served under the provisions of the Act of March 22, 1911, P. L. 23, providing that in such cases the sheriff of defendant’s county may be deputized to serve defendant, the court did not err in refusing to set aside the service although defendant had given the bond before the act was passed.</p> <p>2. There is no vested right in any course of procedure; a party has only the right of prosecution or defense in the manner prescribed for the time being by or for the court in which he sues.</p> <p>3. Where the affidavit of defense in such action contained nothing but a general denial that the contractors had broken their contract so as to render defendant liable, and stated no facts which constituted an adequate defense, judgment was properly entered for plaintiff for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 213, Jan. T., 1912, by The Colonial Trust Company, from decree of C. P. No. 5, Philadelphia Co., Sept. T., 1910, No. 769, dismissing exceptions to auditor’s report in re First and Final Account of The Colonial Trust Company, Trustee under a Mortgage given by the Continental Hotel and Cafe Company.</p> <p>Exceptions to report of Robert W. Archbald, Jr., Esq., auditor, surcharging a trustee for bondholders under a corporation mortgage. Before Martin, P. J.</p> <p>From the record it appeared that on June 1st, 1905, the Continental Hotel and Cafe Company executed a mortgage in trust to the Colonial Trust Company to secure an issue of bonds of the aggregate amount of $75,000 by which the hotel company assigned to the trust company insurance policies on the life of Henry E. Maltby, the manager of the hotel, in the sum of $25,000, and a lease dated May 1st, 1905, by the Netherlands’ Company to the Continental Hotel and Cafe Company of the lot at the southeast corner of Ninth and Chestnut streets in Philadelphia, and the buildings erected thereon known as the Continental Hotel, and fire insurance policies in the sum of $50,000 on furniture and other equipments of the hotel company.</p> <p>By this mortgage the hotel company covenanted to pay to the trustee for the purpose of retiring the bonds the sum of $7,500 on June 1st, 1906, and $7,500 on June 1st, 1907, and annually thereafter on June 1st of each year the sum of $8,500.</p> <p>The habendum clause of the mortgage was in part as follows:</p> <p>“To have and to hold the same unto the said Trustee, its successors and assigns forever, in trust, nevertheless, for the equal pro rata benefit, security and protection of the several persons and corporations who shall be or become the holders of any of the bonds issued or to be issued hereunder, for the due and punctual payment of the same, and the interest thereon as the same shall become due, without preference of one bond over another, according to the tenor and effect of said bonds and the interest coupons thereto attached and hereby secured............”</p> <p>The mortgage further provided:</p> <p>“The said hotel company shall have at its option the right to redeem all or any part of the said securities hereby pledged by the payment to the said trustee of one hundred and two and a half (102%) and interest to-date on such of them as may be then outstanding issued hereunder. All moneys received by the said trustee for the redemption of securities deposited hereunder, shall at the option of the said hotel company, be applied to the purchase of the bonds issued hereunder at one hundred and two and a half (102%) and interest to-date, or for less sum, if possible, or the said sums at the option of the said hotel company shall be held and invested by the said trustee for the use, benefit and behoof of the holders of the bonds issued hereunder without distinction or priority between them.</p> <p>“Should the said hotel company exercise its option to redeem the said bonds at one hundred and two and a half (102%), it shall have the right to determine which of said bonds shall be so redeemed, and shall forthwith notify the said trustee of its intention to redeem certain bonds. The said trustee shall forthwith notify the holder of the said bonds of the intention to redeem the same..........”</p> <p>At various times, the cafe company borrowed of the Colonial Trust Company, trustee for bondholders, under the mortgage, sums aggregating $35,000, and pledged as security for these loans, the issue of bonds.</p> <p>As successive purchases of bonds by outsiders were made, the money was paid to the trust company and applied by it in reduction of the above loans. The trust company released certain bonds of those pledged, which bonds were then handed over to the purchaser. In this manner, the appellees here became possessors of their bonds. By these means the amount of the $35,000 loan was reduced by December 11, 1906, to $16,000, and at that time the trust company held $48,500 worth of bonds as security for the payment of this balance.</p> <p>When Maltby died, there were in the hands of outside holders for value, thirty-one bonds of $15,500 worth; there had been cancelled, fifteen bonds, or $7,500 worth; the cafe company had in its possession, seven bonds, or $3,500 worth, which were unissued; the remaining ninety-seven bonds ($48,500 worth) were in the possession of the trust company as security for its loan, which was then reduced to $16,000. Twenty-two thousand three hundred and seventy-two dollars and ninety-five cents ($22,372.95) was received from the policies on Maltby’s life, and $102.33 was received on one of the fire insurance policies, leaving a total in the hands of the Colonial Trust Company, as the proceeds of the fire and life insurance, of $22,475.28. This was disposed of as follows: Sixteen thousand dollars ($16,000) was applied to the payment of the loan of the Colonial Trust Company, the mortgage trustee, which was thus settled in full; $6,475.28 of it was paid over by the Colonial Trust Company to the Continental Hotel & Cafe Company, the mortgagor. This money was used by the cafe company to cancel six bonds in its treasury which had never been issued, and a balance remaining was employed by the cafe company for its own purposes. No ■money was paid the outstanding bondholders who were holders for value to the extent of $15,500. In this transaction forty-four bonds ($22,000) were cancelled with their interest coupons, being thirty-eight of the bonds held by the trust company as collateral for its loan, and the six bonds which had never been issued.</p> <p>The trustee filed its account, showing the receipt of $22,533.32, and the distribution of the whole thereof, leaving no balance in its hands. Exceptions were filed by four bondholders who had received nothing on their bonds, and by the substituted trustee under the mortgage, claiming surcharges upon the accountant. An auditor was appointed, who surcharged the accountant with the sum of $6,457.28 with interest. It appeared that the trustee in making the payments complained of had acted with the approval of its counsel.</p> <p>Exceptions to the auditor’s report, filed on behalf of the accountant, were dismissed by the court. Accountant appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 42, Jan. T., 1913, by plaintiffs, from decree of C. P. Schuylkill Co., July T., 1911, No. 1, dismissing bill in equity for an injunction in case of Julia Streng and George W. Streng v. The Buck Run Coal Company, a corporation.</p> <p>Bill in equity for injunction to restrain a lessee under a mining lease from mining pilla-rs of coal. Before Brumm, J.</p> <p>From the record it appeared that defendant was entitled under a mining lease to mine coal from two veins, the one lying under the other. The veins were separated by strata of hard rock. The lower vein had been worked for a considerable distance, and pillars had been left to support the upper vein. The defendant then began to mine coal from these pillars; plaintiffs claimed that the destruction of the pillars would render impracticable the mining of the upper vein, and that their royalty rights therein would be thereby impaired.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>The court dissolved a preliminary injunction which it had granted, and dismissed plaintiffs’ bill. Plaintiffs appealed.</p> <p>Errors assigned were various findings of fact and law of the trial judge and the decree of the court.</p>

<p>Negligence — Master and servant — Mining railroad — Biding on loaded cars — Collision—Burden of proof — Contributory negligence —Binding instructions.</p> <p>1. As between employer and employee, the mere happening of ah accident from which negligence could be inferred raises no presumption of negligence against the employer. The burden of proof is on the plaintiff and a specific act of negligence must be shown.</p> <p>2. In an action by a coal miner to recover damages for personal injuries sustained on a mining railroad operated .by his employer, binding instructions for the defendant are proper where it appears that the plaintiff was riding upon a loaded coal car, facing the back of the engine, with his legs hanging down between the engine and the end of the first car, and was injured in a collision with another similar train, for whose presence on the track at the time the defendant was not shown to be responsible, it appearing that the furnishing of transportation to the plaintiff was not in pursuance of any contract to transport him as a part of tbe compensation for his services; and that plaintiff’s action in riding upon the loaded car was contrary to statutory prohibition and to the rules of the company, of which he had notice by printed signs, although miners frequently rode upon such loaded cars.</p> <p>3. In such a case, the burden is upon the plaintiff to show some specific negligence on the part of the employer and this burden is not met by showing that two trains approached each other on a single track, and collided, where the evidence clearly showed that the presence of the two trains upon the track was due to an unauthorized message pent by one of the engineers, and that no one but the foreman had authority to give any such order and that he had not only not given it but was not aware that it had been given by any' one else; and that even if the message had been authorized, the engineer had not obeyed it in the proper manner.</p> <p>4. In such a case the plaintiff’s action in placing himself in a needlessly dangerous position showed that he was guilty of gross negligence and the trial judge should have so declared as a matter of law.</p>

<p>Appeal, No. 337, Jan. T., 1912, by defendant, from decree of C. P. Fayette Co., No. 413, in Equity, for plaintiff, on bill in equity for an accounting in case of William Crennell, Jr., v. Elwood D. Fulton.</p> <p>Bill in equity for an accounting. Before Van Swearingen, J.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe defendant demurred to tbe bill for want of jurisdiction in equity, and tbe demurrer was overruled. Tbe case was then referred to a referee, whose appointment on motion tbe court subsequently refused to vacate. Tbe referee found that plaintiff was entitled to tbe accounting. Exceptions to tbe referee’s report were dismissed by tbe court. Defendant appealed.</p> <p>Errors, assigned were in overyuling.jfcbe demurrer, in refusing to vacate tbe appointment of tbe referee, and in dismissing tbe exceptions.</p>

<p>Statutes — Remedial statutes — Violation—Character of penalty— Equity — Equity jurisdiction — Injunction—Police power — Railroad commission.</p> <p>1. A statute imposing certain duties upon railroad companies, and declaring that every violation thereof shall be a misdemeanor, and that the guilty party shall be liable to a penalty of $100, “to be recovered with costs as debts are now by law recoverable, by a suit in the name of the Commonwealth, for the use of the county where such violation takes place,” and requiring the state railroad commission to enforce the provisions of the act, is not a criminal statute, as no prosecution by indictment can be instituted thereunder, and no fine or imprisonment for the violation thereof is contemplated; such statute is remedial, and the designation of a violation of its provisions as a misdemeanor does not affect its character.</p> <p>2. A court of equity has jurisdiction of a proceeding by a railroad company to enjoin the state railroad commission from enforcing the provisions of such a statute.</p> <p>3. A court of equity will not enjoin the enforcing of the provisions of such a statute, where the purpose of the legislature as declared therein is admittedly within the police power of the State, and the means thereby provided for effectuating such purpose appear from the statute to bear a substantial relation to the end to be accomplished.</p> <p>Railroad companies — Act of June 19, 1911, P. L. 1058, constitutional law — Deprivation of property — Police power — Interstate commerce — Equal protection of laws — Title of act.</p> <p>4. The judiciary can arrest the execution of a statute only when it conflicts with the Constitution, and the courts are not at liberty to declare statutes void because of their apparent injustice or impolicy, or because they appear to the minds of the judges to violate fundamental principles of republican government, unless it should be found that these principles are placed beyond legislative encroachment by the Constitution.</p> <p>5. Uncompensated obedience to a regulation enacted for the public welfare or safety, under the police power of the State, is not taking property without due compensation, and any injuries sustained in obeying such regulation is but damnum absque injuria, and such requirement is not in violation of the constitutional inhibition against the impairment of the obligation of contracts.</p> <p>6. When a corporation accepts its charter from the Commonwealth, it does so in subordination to the sovereign police power of the State, to be exercised whenever the safety of the public may call for the exercise of it. The doctrine that grants of franchises are contracts cannot interfere with the exercise of that power.</p> <p>7. A state is under an obligation to establish such regulations as are necessary or reasonable for the safety of all engaged in business or domiciled within its limits. Local statutes directed to such an end have their source in the power of the State, never surrendered in caring for the public safety of all within its jurisdiction. Undoubtedly, congress in its discretion may take entire charge of the whole subject of the equipment of interstate cars and establish such regulations as are necessary and proper for the protection of those engaged in interstate commerce, but where it has not done so in respect to the number of employees to whom may be committed the actual management of interstate trains of any kind, the statutes of the state, not in their nature arbitrary, and which really relate to the rights and duties of all within the jurisdiction, must control.</p> <p>8. The purpose of the Act of June 19, 1911, P. L. 1053, ag declared in its title, “to promote the safety of travelers and employees upon railroads by compelling common carriers by railroad to properly man their trains” is clearly within the police powers of the State, and the provisions of the act having been found not to be arbitrary and unreasonable, it will not be declared invalid because there might be a conflict of opinion as to the propriety of the legislation.</p> <p>9. The Act of June 19, 1911, being a valid exercise of police power by the legislature, the fact that railroad companies affected by it must make additional expenditures to comply with its provisions is an immaterial matter so far as the courts are concerned.</p> <p>10. The title of the Act of June 19, 1911, gives sufficient notice of a provision of the act for the heating of the trains and for means of exit from rear platform and steps, as such a provision is germane to the subject matter of the bill and affects the proper manning of the trains.</p> <p>11. The Act of June 19, 1911, is not repugnant to the commerce clause of the federal Constitution, as in the absence of congressional regulation of the manning of interstate trains it is competent for the State legislature to provide for the safety of travelers and employees upon such trains while within the State, and especially where no intention is disclosed in the act of impeding or regulating interstate commerce.</p>

<p>Trespass — Trespass for talcing coal — Mines and mining — Real property — Adverse possession — Conflicting surveys — Referee — Findings of fact — Measure of damages — Royalty.</p> <p>1. Upon a dispute between the alleged owner of certain real property and a coal mining company, which it was claimed had trespassed upon tbe land in question and mined coal thereon, a finding of the referee that the defendant had not had adverse possession of the premises will be sustained, where the evidence of defendant showed merely that a portion of the ground had been used for the deposit of culm and fine coal too small for market and that a railroad siding had been laid across it, but that there had been no enclosure or cultivation of the land or exclusive occupation thereof.</p> <p>2. Where there is a dispute between two parties as to the location of a line separating two tracts of land, and there are conflicting surveys and conflicting evidence by surveyors, a finding by the referee, determining the true location of the line, confirmed by the court below will not be reversed in the absence of manifest error.</p> <p>3. In an action of trespass for damages for the taking and carrying away of coal underlying plaintiff’s land, where it appeared that the defendant had mined the coal under an honest mistake as to its rights, the proper measure of damages is the fair value of the coal in place at the time of the taking; and, under ordinary circumstances, that is to be determined by the royalty which such coal would have commanded.</p>

<p>Common carriers — Railroad companies — Interstate Commerce Act — Freight rates — Departure from published rates — Suit to recover legal rate.</p> <p>1. Where there has been a departure from established and published rates for the transportation of freight by a railroad company, whether by mutual mistake.or for other reasons, the legal rate must be paid by the shipper. An agreement for a rate other than that prescribed for the particular service by the Interstate • Commerce Act is absolutely void. The fact that the shipper will suffer actual loss, in consequence of being quoted a lower rate than the legal one, is not material in an action by the railroad company to recover the legal rate, although it might be the basis of an action to recover damages for negligent misquotation of the rate.</p> <p>. 2. In an action by a railroad company to recover freight charges it appeared that the defendant, who was a shipper of flour, had inquired of a responsible officer of plaintiff railroad company as to the rates for such shipment, and was by mistake given a rate which was less than the legally prescribed rate; plaintiff acted upon this representation for a period of two years; thereafter the railroad company discovered that less than the legal rate had been charged and brought an action to recover for the difference between the legal rate and that the shipper had paid. Held, the railroad company was entitled to recover.</p>

<p>Appeal, No. 329, Jan. T., 1912, by defendant, from decree of C. P. McKean Co., Feb. T., 1912, No. 3, in Equity, awarding injunction in case of The Kane and Elk Railroad Company v. The Pittsburgh & Western Railroad Company.</p> <p>Bill in equity for an injunction. Before Bouton, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court on the original bill awarded an injunction restraining the construction of a grade crossing, and on the supplemental bill awarded an injunction restraining the defendant from proceeding further in an action which it had instituted in another county. Defendant appealed.</p> <p>Errors assigned were the various findings of fact and law and the decree of the court.</p>

<p>Equity — Findings of fact — Practice—Amendment—Equity rules —Bule 4S.</p> <p>1. Findings of fact by a court of equity which are based upon competent evidence will not be reversed.</p> <p>2. Where upon a reversal of a decree in equity, a procedendo is awarded, with the direction that plaintiff be allowed to amend his bill by bringing another party upon the record, such amendment may be made, under Rule 49 of the Equity Rules, within twenty days after the application to the court below for leave to amend, in compliance with the decree of the Supreme Court. The fact that the application to the court below was not made until more than twenty days after the decree of the Supreme Court is not material, nor that the actual amendment was made more than twenty days after the filing of the motion, where the delay was caused by the resistance of the defendant thereto.</p>