Volume 242 — Pennsylvania State Reports

<p>Judgments — Court records — Decree, Q. S.- — Defects—Collateral review — Evidence.</p> <p>1. Where the Quarter Sessions has jurisdiction of the subject matter and of the parties, its decree is not subject to review in a collateral proceeding in the Common Pleas.</p> <p>2. In an action against a township to recover damages for injuries caused by the negligence of township supervisors in not keeping a road in repair, a record of the Quarter Sessions showing the opening as a public highway of the road upon which the accident occurred is properly admissible in behalf of plaintiff, regardless of alleged defects in the proceedings.</p>

<p>Bes adjudicaba — Orphans’ Court — Decedents’ estates — Construction of will on partial distribution.</p> <p>1. A particular construction of a will on a partial distribution by an auditing- judge of the Orphans’ Court to which no exceptions were filed, and from which no appeal was taken, is not res adjudicata so as to bind the Orphans’ Court on the subsequent adjudication of an account covering another portion of the same estate.</p> <p>Trusts and trustees — Purpose of trust — Separate use trust— Preservation of remainders — Buie in Shelley’s Case.</p> <p>2. Testator gave a portion of his estate to trustees to keep the same invested and to pay over the income thereof to his granddaughter, a married woman, “for and during all the term of her natural life for her sole and separate use, and from and immediately after her decease then in trust to and for the only proper use and behoof of all and every the child and children which she may leave surviving her, and the lawful issue of any of them who may be then deceased having left such issue, their several and respective heirs, executors and assigns in equal shares forever per stirpes, and not per capita.” The will was subsequenxly republished by a codicil. It appeared that the granddaughter’s husband died subsequent to the making of the will, but the date of his death in reference to the date of the republication of the will was not established. Held, (1) the date of the husband’s death being left unascertained by testimony, it will not be assumed on appeal that his death occurred subsequent to the republication; and (2) that the words “child and children which she may leave surviving her, and the lawful issue of them who may be then deceased” are words of purchase and not limitation, and that the trust continued until the death of the granddaughter.</p>

<p>Appeals — Moot questions — Preliminary injunction — Dismissal of appeal.</p> <p>1. It is not the province of courts to give opinions on moot questions or abstract propositions and to enter judgments or decrees to -which effect cannot he given.</p> <p>2. An appeal from an order refusing a preliminary injunction to restrain the continuance of a quarantine established by a board of health was dismissed, where it appeared that the quarantine was removed on the day the appeal was taken, and more than three months before the argument of the appeal.</p>

<p>Injunctions — Preliminary injunctions — Appeals — Reasonable grounds.</p> <p>1. On an appeal from the granting of a preliminary injunction, the Supreme Court will not consider the merits further than to determine where there' is reasonable grounds for the action of the court.</p> <p>Equity — Jurisdiction—Title to land — Res adjudicata.</p> <p>2. Equity will not refuse to take jurisdiction of a bill to restrain a defendant from entering upon plaintiff’s land or interfering with the use and enjoyment thereof, on thfe ground that title to land is involved, where it is alleged and proved that the title and right of possession had been determined to be in the plaintiff by adjudications' that were final' and conclusive.. :</p> <p>jPractice, Supreme Court — Appeals—Assignments of error — Admission of testimony — Defective assignment.</p> <p>3. An assignment of error complaining of the admission of testimony will not be considered, where the testimony is not set out therein.</p>

<p>Real property — Ejectment—Title Toy adverse possession — Glaim of ownership — Evidence—Boundaries of land — Case for jury.</p> <p>1. Where in an action of ejectment it appears that the original possession was under a claim of ownership, the statutory period of limitation commences to run from the date of entry, but where the original entry was not under such claim, the statute runs only from the time when by some unequivocal act there was a severance of privity of title between owner and occupier.</p> <p>2. Where in an action of ejectment to recover lands to which defendant claimed title by the admitted possession of his predecessor in occupancy, from whom he had a deed, and of himself, for fifty years, which possession was alleged to have been adverse, the case is for the jury and a verdict for the defendant for part of the tract will be sustained where the issue turned upon the question under what claim the first occupant entered, and there wast evidence in behalf of defendant that about the time his predecessor in title entered into possession, the owner of the larger tract of which the land in dispute was part declared that he had given the latter to such predecessor and that the land was hers; and that ishe had continued to occupy and use the land in the same way until shortly before her death, when she deeded it to the defendant.</p> <p>3. In such a case it is for the jury under the evidence to fix the boundaries within which the defendant and his predecessors had occupied, used, enjoyed and improved the land for the statutory period..</p>

<p>Appeal, No. 354, Jan. T., 1912, by plaintiff, from judgment of O. P. Fayette Co., March T., 1910, No. 157, on verdict for defendants by direction on mandamus in case of George Roth v. East Connellsville Coke Company, a corporation, Braddock Trust Company, administrator of A. S. Braznell, deceased, C. W. Braznell, secretary of said East Connellsville Coke Company, J. K. Aikins, J. D. Boyd and Francis Rocks.</p> <p>Mandamus to compel defendant coke company to issue stock certificates to plaintiff, and to allow him access to its books and accounts. Before Umbel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The defendants denied that plaintiff was a stockholder in the coke company, and the case went to trial on this issue. During the trial, the court withdrew a juror and continued the case; and several months later it directed a verdict in favor of the defendants nunc pro tunc as of the date of the trial, and ordered judgment to be entered thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

Appeal, No. 65, Jan. T., 1913, by plaintiff, from judgment of C. P. Fayette Co., Sept, T., 1910, No. 497, on verdict for defendant in case of Tony Adinolfi v. W. A. Hazlett. Assumpsit to recover a balance alleged to be due on a subcontract for tbe construction of certain stone work.

<p>Appeal, No. 92, Jan. T., 1913, by plaintiff, from order of C. P. Fayette Co., June T., 1912, No. 77, discharging plaintiff’s rule for judgment for want of a sufficient affidavit of defense.</p> <p>Assumpsit to recover money paid under a contract for the purchase of certain machines. Rule for judgment for want of a sufficient affidavit of defense. Before Van Swearingen, J.</p> <p>The opinion of the Supréme Court states the facts.</p> <p>The court discharged the rule. Plaintiff appealed.</p> <p>Error assigned■ was in discharging the rule.</p>

<p>Decedents’ estates — Executors—Mismanagement—Discharge — Evidence — Depositions—Party within jurisdiction — Depositions of a respondent — Court records.</p> <p>1. A resident and a nonresident were appointed ancillary executors of a decedent’s estate, and in accordance with the directions of the will were to operate the business left by the testator. The resident executor did not participate in the management thereof, and the nonresident executor appointed as his agent therefor a third person whose conduct was detrimental to the interests of the estate, and who was restrained at the instance of the resident executor, by injunction, from wasting its assets. Thereafter the resident executor petitioned for the removal of the nonresident executor, alleging that he was mismanaging the estate. Held, that the court was correct in removing such executor, where a finding that he had neglected to perform his duties, had grossly mismanaged the estate to its great injury, and had refused to appear before the court to explain his conduct, when directed so to do, was justified by the evidence.</p> <p>2. In such a case, the record of injunction proceedings brought by the resident executor against the manager for the purposes of preventing the wasting of the assets is admissible in evidence, where it appears that the nonresident executor had in a letter to his attorney referred to said manager as his agent.</p> <p>3. A motion by such nonresident executor for the appointment of a commission to take his depositions was properly denied, as he was a party to the record, and for the purposes of the estate, within the jurisdiction of the court.</p>

<p>Appeal, No. 121, Jan. T., 1913, by defendants, from judgment of C. P. McKean Co., Dec. T., 1911, No. 60, on verdict for plaintiff in case of W. A. James v. D. M. James, E. B. «Tames, and H. J. James.</p> <p>Assumpsit to recover money alleged to be due under a written contract. Before A. O. Smith, P. J., specially presiding.</p> <p>Prom tbe record it appeared that six brothers controlled, through stock ownership, various corporations, and that they were tenants in common of certain coal and gas properties. Disagreements had taken place between them as to the management of these corporations, and for the purpose of settling all disputes, they entered into a written contract with W. A. James and J. C. James, as parties of the first part, and D. M. James, E. B. James, H. J. James and D. W. James, as parties of the second part. It was provided in the contract, inter alia, that the parties of the second part should purchase of W. A. James various shares of stock, and his interest in a gas lease, at a valuation to be fixed by appraisers whose appointment was provided for in the contract; the appraisers were appointed, and reported that the value of W. A. James’s properties was <¶96,452.90. The stock, deeds, etc., were delivered to a trust company appointed to receive them for the parties of the second part. The parties of the second part refused to complete the purchase, however, alleging that the written contract had been modified by a subsequent parol agreement, and that the appraisement had been fraudulently made. The court submitted the question of the modification of the contract, and of the good faith of the appraisement to the jury, and refused to charge that the action could not be maintained because the contract was a joint contract, and all the parties thereto were not parties to the action. It appeared that J. C. James, of the first part, was not named in the writ, and that D. W. James, of the second part, though named in the writ, was not served.</p> <p>The material parts of the contract in question were as follows:</p> <p>This agreement made this 30th day of January A. D. 1911 between W. A. James and J. C. James of the first part, and D. M. James, E. B. James, H. J. James and D. W. James of the second part,</p> <p>Whereas, W. A. James is the owner of 111 194/300 shares of the capital stock of James Brothers Lumber Company, 111 197/300 shares of the capital stock of James Manufacturing Company, 35 shares of the capital stock of the Consolidated Chemical Company, 40 shares of the capital stock of James City Realty Company, 10 shares of the capital stock of James City Gas Company, 10 shares of the capital stock of Crystal Springs Park Water Company, 111 197/300 shares of the capital stock of Kane and Elk Railroad Company, 46 2/3 shares of the capital stock of the La Mont Chemical Company, the foregoing all being corporations of the State of Pennsylvania; and a one-sixth interest in what is known as the Hovencamp gas property.</p> <p>. And whereas, J. C. James is the owner of 150 221/300 shares of the capital stock of Kane and Elk Railroad Company, 150 218/300 shares of the capital stock , of James Brothers Lumber Company, 150 221/300 shares of James Manufacturing Company, 46 2/3 shares of the capital stock of La Mont Chemical Company, 35 shares of the capital stock of Consolidated Chemical Company, 40 shares of the capital stock of James City Eealty Company, 10 shares of the capital stock of James City Gas Company, 10 shares of the capital stock of Crystal Springs Park Water Company, and a one-sixth interest in the Hovencamp gas property.</p> <p>And whereas, the parties of the second part are the owners or are in control of 970 268/600 shares of the capital stock of the William James Sons Company, a corporation of Hinton, West Virginia, being all of the capital stock of said corporation, except that owned by the parties of the first part;</p> <p>And whereas, the parties of the second part are the owners of a large undivided interest in certain coal lands, known as the “Cabin Creek Coal Lands,” situated in West'Virginia;</p> <p>And whereas, the parties to this contract are the equitable owners in equal one-sixth parts of a certain tract of land situate in Elk County, Pennsylvania, containing 33 acres more or less, and known as “Hovencamp Gas Land” legal title to which stands in the name of W. A. James, who holds it in trust for the parties hereto.</p> <p>Now, therefore, this agreement witnesseth, that the said J. C. James upon the terms and conditions hereinafter mentioned, agrees to sell, and the parties of the second part agree to buy, all stock of J. O. James in the Pennsylvania corporations above enumerated, and his interests in the Hovencamp Gas lands, and the parties of the second part agree to sell and the said J. C. James agrees to buy the capital stock of the parties of the second part in the William James Sons Company of West Virginia.</p> <p>W. A. James agrees to sell and the parties of the second part agree to buy the capital stock of said W. A. James in the Pennsylvania corporations hereinabove named, and the interest of W. A. James in the Hovencamp gas property.</p> <p>And the parties of the second part agree to sell and convey to W. A. James and he agrees to buy, such an individual interest in the “Cabin Creek Coal Lands,” as will equal (at the valuations to be determined by appraisers, as hereinafter provided) one-half of the value of the capital stock of' said W. A. James in James Brothers Lumber Company, James Manufacturing Company, James City Bealty Company, James City Gas Company, Crystal Springs Park Water Company and Consolidated Chemical Company.</p> <p>By mutual agreement of all parties hereto, A. H. Gaffney and Frank McNeill of Kane, Pa., John Troy of Olean, New York, Charles Heydrick of Clarion, Pa., and N. N. Metcalf of Austin, Pa., are selected as appraisers to fix the values of the stocks, lands and properties herein agreed to be sold and conveyed as of February 1, 1911; the appraisers to commence their duties forthwith, and to complete the same, and make report thereof in writing to the Honorable Joseph W. Bouton, of Smethport, Pa., on or before the first day of April, 1911, unavoidable accidents or delays excepted, the decision of a majority of said board of appraisers to be final and binding upon the parties hereto.</p> <p>Verdict for plaintiff for $106,210.72, and judgment thereon. Defendants appealed.</p> <p>Error assigned, among others, was in refusing to charge the jury that the action could not be maintained because the contract was a joint contract.</p>

<p>Appeals, Nos. 169 and 173, Jan. T., 1913, by plaintiff and defendant, from decree of C. P. No. 2, Philadelphia Co., Dec. T., 1912, No. 1097, In Equity, awarding an injunction in case of the Pennsylvania Mutual Life Insurance Company v. City of Philadelphia; Kudolph Blankenburg, Mayor, and Morris L. Cooke, Director of the Department of Public Works.</p> <p>Bill in equity for an injunction to restrain the City of Philadelphia from appropriating certain land under the provisions of the Act of June 8, 1907, P. L. 466.</p> <p>From the record it appeared that by ordinance of July 3, 1912, the councils of the City of Philadelphia undertook to appropriate certain land within two hundred feet of a proposed parkway.</p> <p>By ordinance of January 16, 1913, the mayor was authorized to enter into an agreement on behalf of the city, with the Bell Telephone Company, whereby the land so appropriated should be conveyed to the telephone company in fee, subject to certain building restrictions. The . purpose of the transaction was admittedly to protect the parkway from the construction of an unsightly building in the vicinity. There were no allegations of fraud.</p> <p>The court held the act constitutional, but awarded the injunction on the ground that the ordinance of January 16, 1907, was defective in that it was not preceded by an ordinance prescribing general restrictions for the protection of the parkway. Plaintiff and defendant appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Insurance — Fire insurance — Prohibited articles — Suspension of policy — Revival—Written and printed clauses — Articles incident to business — Increase of hazard — Case for jury.</p> <p>1. When an article prohibited in a policy of fire insurance has been kept or used on the insured premises but the insurer has not declared cancellation or forfeiture of the policy on that account, and the keeping or use of the article has been discontinued prior to the happening of a fire, the policy is not rendered absolutely void, but only suspended during the time the prohibited articles are kept on the premises and is revived by the discontinuance of the prohibited use and the payment of premiums and the issuance of renewal receipts after that time.</p> <p>2. The general rule that written portions of an insurance policy must be taken as being more immediately expressive of the intention of the policy and must prevail over the printed portions if there is any repugnancy or conflict between them, is applicable as well to prohibited articles as to other conditions of the policy, and the use of an article prohibited by the printed clause of a policy of fire insurance will not avoid it if the prohibited article is a customary component part of the goods insured or is in customary use in carrying on the trade or business conducted in the insured building.</p> <p>3. In such a case the policy is not avoided by the fact that the insured had during the life of the policy kept gasoline, illuminating oil and gunpowder on the premises, in violation of the policy, where it also appeared that such articles had not been so kept for at least two years prior to the fire, and that the policy had been renewed in the meantime, and the premiums paid.</p> <p>4. In such a case where the policy contains a printed clause prohibiting the keeping of gasoline on the insured premises, but it appears in the written provisions of the policy that the building is to be used as a general country store, in the conduct of which business such an article ordinarily forms a part of the general stock, the violation of the printed provision will not avoid the policy; and, in such a ease, where the nature of the business conducted on the insured premises is changed from that of a country store to a broom factory, the fact that after such change a small quantity of gasoline was kept in a tank on the premises to be used in conducting the business is not sufficient to avoid the policy, where it appears that the factory had been shut down two weeks before the fire occurred and there was no proof that at such time there was any gasoline in the tank, or that it had any connection with the fire, and where premiums had been paid and revival receipts issued after the gasoline was stored for the use of the hroom factory.</p> <p>5. Where in an action on an insurance policy which forbade .the increase of hazard by changing the character of the business conducted on the premises, it appeared that the original use of the building was changed from that of a general country store to a broom factory, the verdict of the jury in favor of the plaintiff is conclusive on the question as to whether such change was an increase of hazard.</p>

<p>Appeal, No. 238, Jan. T., 1912, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1911, No. 67, refusing to take off nonsuit in case of John T. Dyer Quarry Company v. S. R. Moss Cigar Company, Inc.</p> <p>Assumpsit for stone sold and delivered. Before Landis, P. J.</p> <p>Error assigned was the action of the court in refusing to take off; the nonsuit.</p>

<p>Appeal, No. 254, Jan. T., 1912, by Clara L. Rogers, a devisee under the will of Charles W. Metzger, deceased, from the decree of the Superior Court, of Oct. T., 1911, No. 104, reversing decree of O. C. Lancaster Co., Sept. T., 1904, No. 64, making distribution in the Estate of Charles W. Metzger, deceased.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Superior Court by Porter, J., was as follows:</p> <p>The Orphans’ Court of Lancaster County on July 20, 1905, entered a decree adjudicating the balance in the hands of John E. Snyder, surviving executor of Charles W. Metzger, deceased, for distribution to those entitled to take under the will, to be $32,368.01. There was included in the account which made up that balance the sum of $238.27 which had been collected by the executor as rent for a certain bakery property; a dispute having arisen as to who took the property under the provisions of the will and the rents having been collected by the executor and included in his account by an arrangement among all the parties in interest, in order to avoid litigation. The court in its decree distributing the balance in the hands of the executor awarded that sum of $238.27 to Mary E. Metzger and Clara Rogers. The executor did not file exceptions to that decree. The only parties who did in any manner question that decree were Levi B. Smith and others who took under the residuary clause of the will of the testator and the only exception which they filed in the court below alleged that the court erred in awarding the $238.27 in question to Mary E. Metzger and Clara Rogers, which sum the exceptions averred should have been awarded to them, under the residuary clause of the will. The learned judge of the court below on October 26th, 1905, in disposing of those exceptions, filed an opinion in which he stated very clearly and at length his reasons for decreeing the part of the fund in question to Mary E. Metzger and Clara Rogers, and dismissed the exceptions and confirmed the adjudication absolutely. From that decree neither the executor nor the present appellees appealed, they permitted it to stand unchallenged, and it is now idle to assert that that money has not been judicially determined to be in the hands of the accountant. The present appellant and others, the residuary legatees under the will, did appeal from that decree, but the only part of the decree of the court below which they attacked was the distribution of the rent received for the bakehouse property to the appellees. The result of that appeal to this court is reported in Smith v. Metzger, 32 Pa. Superior Ct. 596, 'where the facts disclosed by the evidence which came up with the record are fully stated. There had been heard at the audit in the court below testimony which accurately described the property of the testator at the time his will was executed and the time it went into effect, having been offered for the purpose of identifying the properties devised. This testimony the court below had disregarded and in his opinion filed dismissing the exceptions had said: “At the request of all parties, testimony was taken for the purpose of identifying the properties devised. This we think was an error.” This court held that the testimony showing the actual condition of the testator’s property at the time his will was executed and at the time it went into effect was admissible for the purpose of identifying the properties to which the several devises applied. There was no dispute under the testimony as to how the property of the testator had been sub-divided, the uses to which it had been applied and the exact limits which the testator had fixed for each of the sub-divisions. There had been no change in the condition of the testator’s property from the time his will was written to the time of his death.</p> <p>The evidence extrinsic the will being before the court and there being no controversy as to the condition of the property, we said: “The application of the will of the testator to his property as it existed at the time of the execution of his will and the time when that will went into effect disclosed no latent ambiguity, which warranted the introduction of parol testimony to give effect to the will. The description of each property, as contained in the will, was clear and accurate; as to each devise there existed a subject which satisfied the terms of the will, and to which they were perfectly applicable; and in such a case there is no latent ambiguity: Wusthoff v. Dracourt, 3 Watts 240; Best v. Hammond, 55 Pa. 409; Rott’s Est., 187 Pa. 118.” The appellees had at the audit introduced testimony to the effect that the testator had intended to make a disposition of his property different from that which the words of his will implied. This court held, that as the actual condition of the testator’s property and the sub-divisions which he had made of it fully satisfied the terms of the will, the instrument as written must stand. The extrinsic evidence was admissible for the purpose of identifying the property and showing the manner in which the testator had .divided it and given to each part a distinct designation. The facts thus established by the undisputed testimony, led this court to hold that the bakehouse property did not pass to Mary Metzger and Clara L. Rogers under the devises to them of specific parts of the real estate, but that it did pass under the devise of the residue of the estate. We reversed the decree of the court below, on February 25th, 1907, and remitted the record with direction to make distribution in accordance with the opinion which we filed. The appellees applied to the Supreme Court for leave to appeal from our decisión, and tbeir petition was by the Supreme Court refused. They subsequently applied to this court for permission to reargue the case and their petition was by this court refused. The question of the ownership to this fund of $238.27 had thus been finally determined, so far as the State of Pennsylvania has authorized any system of judicial procedure for accomplishing that result.</p> <p>“The judgment of the law, like the hand of death, puts an end to all strifeSwan v. Scott, 11 S. & R. 155. This case seems, however, to be an exception to the salutary principle thus announced by our Supreme Court. About four years after this court had reversed the decree of the court below and the Supreme Court had refused an appeal from our decisions, the appellant presented to the court below his petition praying that the fund be distributed in accordance with our decree, upon which petition the learned judge of the court below granted a rule to show cause why the prayer of the petitioner should not be granted. The executor, the accountant, in whose hands the money has been adjudged to be, filed no answer to this rule, he seems to have been willing to obey the mandate of the law. An answer was filed by Mary E. Metzger and Clara L. Rogers, the appellees, in which they in substance averred that the decision of this court was erroneous. The court below discharged the rule which it had granted upon the petition of the appellant and dismissed the petition, thus refusing to carry into effect the final decree of this court, from which the Supreme Court had refused to allow an appeal. The learned judge of the court below seems to have been of the opinion that the decision of the Supreme Court in another case, Metzger’s Estate, 222 Pa. 276, warranted his action.</p> <p>This belief was founded upon a misconception of the effect of the decision upon which he relied as well as of the grounds upon which that decision was based. The opinion of Mr. Justice Stewart, of the Supreme Court, distinctly states that the decision in Smith v. Metzger, 32 Pa. Superior Ct. 596 was conclusive as to the ownership of the particular fund with which we are now dealing. After our former decision had been made the present appellant and others filed in the Orphans’ Court of Lancaster County a bill for partition of the real estate from which the rents with which we are now dealing had been derived. The appellees filed an answer to that bill, denying the right to partition, and alleging their ownership of the land, and without taking any testimony the parties went to hearing on bill and answer, and the learned judge of the court below dismissed the bill or petition. This appellant appealed from that decree to the Supreme Court and the decree of the court below was affirmed, but the reason for that action clearly appears in the opinion of Mr. Justice Stewart who spoke for the Supreme Court. “Since it was a question of identifying the things specifically devised, the case was one which properly called for parol evidence to enlighten the court with respect to matters of which, when made known to it, it would take judicial cognizance so far as not to require special proof that the testator did, in point of fact, dictate his will with reference thereto. But it was submitted on bill and answer without a particle of evidence extrinsic to the will. This was because of a mistaken view entertained that, since there was no apparent ambiguity in the testamentary description of the ground specifically devised, parol evidence was inadmissible.</p> <p>The learned judge in the opinion filed gives us clearly to understand that this was the view taken by the court; and the fact that there was no evidence offered can be explained only on the ground that counsel were of the same mind.” Although the Supreme Court thus expressly declared to be erroneous the view of the court' below that extrinsic evidence was not admissible to identify the property devised, it was beyond their power to reverse the judgment upon that ground for the reason stated in the opinion. “While the view taken by the court with respect to this matter was a mistaken one, it is not made a subject of exception, and is not brought to us for review by any assignment. The effect of it was to limit the inquiry to the terms of the will itself, the court having nothing else before it. The learned judge of the Orphans’ Court somehow, certainly not from the pleadings in the case nor yet from the will, but with the submission of the parties, as the argument shows, derived the fact that the ground in dispute is composed of the rear ends of two adjoining lots fronting on South Queen street in the City of Lancaster, both of which — however the fact may now be — originally extended back about two hunderd and forty-five feet to a public alley in the rear. But for this fact, judicially imported into the case, disclosing as it does the location of the disputed ground with reference to that admittedly within the specific devise, no correct understanding of the real dispute would have been possible.” And again, “With respect to the first, it is only necessary to remark that the will itself furnishes not merely an intelligible and sufficient description whereby the thing devised may be identified with reasonable certainty, but the description is so definite that without some extrinsic evidence to show that lot No. 133, when the will became operative, was not of the dimensions it had been when the testator acquired it —as that another lot had been carved from it and given another and distinct designation by number or otherwise — it is impossible to fit the description of the will upon anything else than the entire lot as it was then when testator acquired it” — “we are permitted to know exactly what lot No. 135 contained when the testator acquired it, and are without anything, either in the will or extrinsic to it, to show that it was ever reduced in size.” This opinion clearly and distinctly affirms the propriety of introducing extrinsic evidence showing the manner in which a testator had treated his land, the subdivisions which lie had made of it, and the condition in •which the property was, at the time his will was executed and went into effect, for the purpose of identifying the various parcels designated in his will. The difficulty with the- position of the appellant in that case was that he had not produced the extrinsic evidence necessary to show the condition of the property át the time the will took effect. The questions involved in the case upon which the Supreme Court passed were wholly different from those considered by this court in determining the ownership of the fund with which we are now dealing. The Supreme Court did not have before it the extrinsic evidence which was presented to and considered by this court.</p> <p>The order of the court below is reversed, and it is ordered that- the costs which accrued upon the former appeal, in which we entered a decree on February 25th, 1907, be paid out of the amount collected as rents from the bakehouse property, and included in the account, and the record is remitted to the court below with direction to make distribution of the balance of said $238.27 under the residuary clause of the will, to wit: “The residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath to my brother Gottlieb F. Metzger, my sister, Mary E. Metzger, my sister Caroline Rogers, my sister, Louisa Smith, and my niece, Clara Rogers, in equal shares and parts, if they are living at the time of the death of my said wife, and if any of them are deceased at the time of the death of my said wife, then to the issue or descendants of such as are deceased leaving issue, etc.;” and it is ordered that the appellees pay the costs of this appeal.</p> <p>Error assigned was the decree of the Superior Court.</p>

<p>Appeal, No. 359, Jan. T., 1912, by William C. Whiteside, Administrator d. b. n. of Mary C. Hill and Winfield S. Hill, deceased, from decree of O. C. Lancaster Co., Feb. T., 1902, No. 72, dismissing exceptions to adjudication in the Estates of Mary C. Hill and John T. Hill, deceased. Before</p> <p>Exceptions to adjudication. Before Smith, P. J.</p> <p>At the audit the accountant was surcharged with $50.00, which he had paid to himself “for expenses in attending court and services as witness,” there being no proof of any unusual attendance or services; with $75.00, of $100.00 paid by him to an attorney for stating the account, it appearing that the stating of the account consisted merely in copying three pages of items from a book; with $100.00 paid for professional services to an attorney, where it appeared that he had already been paid for the same services; with $11.00 costs in a suit in which the accountant was successful, and which he should have recovered from his opponent; with interest amounting to $966.00, representing interest on balances in his hands which he had failed to invest, and with $100.00 pa id out by the accountant as administrator, on account of an alleged agreement made by the payee with one of the beneficiaries of the estate for whom the accountant was guardian. Exceptions to the adjudication were dismissed. Accountant appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 379, Jan. T., 1912, by William P. King, Executor of the last will and testament, of Annie K. Yocum, deceased, from decree of O. C. Lancaster Co., May T., 1912, No. 64, dismissing exceptions to adjudication in Estate of Jesse Yocum, deceased.</p> <p>Exceptions to adjudication. Before Smith, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court denied a claim presented against the estate Of Jesse Yocum, deceased, by William P. King, as executor of Annie Yocum, widow of decedent. Exceptions were filed and dismissed. The executor appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Insurance — Fire insurance — Policy—Construction — Exemption —Fires from locomotive engines — Proximate cause.</p> <p>1. Words of exemption contained in a policy of fire insurance are to be most strongly construed against tbe insurer and in favor of tbe insured, and in so construing them, reasonable effect is to be given to them so as not to defeat — unless there be an imperative necessity to do so — the indemnity which the insured sought and thought he had secured through the policy of insurance.</p> <p>2. In an action of assumpsit upon a policy of fire insurance, it appeared that the policy contained a clause providing, “this policy , . .will not cover loss or damage by fire happening by means of......fire from, or occasioned by locomotive engine or engines.” A portion of plaintiff’s farm had been condemned for the purpose of the construction of a railroad, and a construction company was engaged in work thereon. A tobacco shed which had been left standing, partly on the company’s right of way and partly on the plaintiff’s land, took fire from a spark which was thrown from an engine operated on the work, and this fire in turn was communicated to plaintiff’s buildings covered by the policy of insurance. Held, plaintiff was entitled to recover.</p> <p>3. In such a case, the words of the exempting clause of the policy will be construed to contemplate a fire directly from or directly occasioned or caused by a locomotive engine or engines, and not a fire caused by sparks from another building which had first been set on fire by a spark from an engine.</p>

<p>Appeal, No. 52, Jan. T., 1913, by Franklin G. Shirk, Trustee, &c., from decree of O. O. Lancaster Co., Jan. T., 1907, No. 30, dismissing rule to declare trust at an end in Estate of Jacob S. Shirk, deceased.</p> <p>Buie to declare trust at an end. Before Smith, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. Petitioner appealed.</p> <p>Error assigned was in discharging the rule.</p>

<p>Negligence — Electric companies — Electric wires — Duty to insulate properly — Contributory negligence — Evidence—Nonsuit.</p> <p>1. The duty of those in control of a deadly electric current to exercise the highest degree of care in protecting electric wires at points where they enter buildings or where it may reasonably be expected that persons in discharge of duty may accidently come in contact 'with, them, is not met by using only such insulation as would be. safe on wireg hanging in the air and out of ordinary reach.</p> <p>2. One who is brought by his employment in close proximity to electric wires which are apparently insulated, is not guilty of contributory negligence in coming in contact with the wires, unless the contact was the result of heedlessness, or of his own lack of proper precautions for his safety.</p> <p>3. In an action against an electric company to recover damages for injuries due to defectively insulated wires, the questions of defendant’s negligence and plaintiff’s contributory negligence are for the jury where it appears that the plaintiff, while painting the outside of a house, accidently came in contact with plaintiff’s apparently insulated electric wires near a point where they entered the house about twenty feet above the ground, and that the insulation material, while such as in ordinary use on wires hanging in the air and out of ordinary reach, did not make the wires safe.</p> <p>4. In such a case it is error to exclude evidence tending to show that the wires were faulty in construction and not properly insulated at the spot where the accident occurred, although the wires were admitted to be insulated with a material in general use.</p>

<p>Equity — Equity practice — Bills in equity — Dismissal—Certification to law side — Act of June 7,1907, P. L. IffO — Appeals.</p> <p>1. An order revoking the certification of proceedings in equity to the law side of the court will be sustained where it appears that the court had already heard the case on its merits and had dismissed the bill, on the ground that the evidence was insufficient to establish plaintiff’s title.</p> <p>2. Such a case is not within any of the sections of the Act of June 7, 1907, P. L. 440, under which a cause cannot be certified to the law side of the court after a final decree dismissing the bill.</p>

<p>Appeal, No. 163, Jan. T., 1913, by plaintiff, from judgment of C. P. Lancaster Co., Sept. T., 1911, No. 27, refusing to take off nonsuit in case of Elizabeth A. Bachler v. Charles F. Widmyer and John W. Kinard.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Landis, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a nonsuit which on motion it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was the refusal of the court to take off the nonsuit.</p>

<p>Appeal, No. 177, Jan. T,, 1913, by plaintiffs, from decree of C. P. McKean Co., June T., 1913, No. 1, in Equity, dissolving a preliminary injunction in case of E. J. Hoffman and C. M. Brooks v. Orville D. Howell.</p> <p>Bill in equity for an injunction to restrain defendant from drilling oil and gas wells on certain land. Before Bouton, P. J.</p> <p>From the record it appeared that Junius E. . Clark, and Edward K. Clark, being the owners of a tract of land situate in the Borough of Kendall, conveyed a part thereof to Wilson Green. The deed to Green contained the following reservation: ,:</p> <p>“The party of the first part reserves all the oil and gas on the premises hereby conveyed, but agrees not to locate any well on any parcel hereby conveyed.”</p> <p>Green’s title subsequently became vested in the defendant, and the title of the Clarks descended to Ellen C. Hanna and Mary E. Clark, who leased the whole tract above mentioned, together with certain other lands, to the plaintiff's, reserving however, “all lots of land which have heretofore been conveyed from any of the above described tracts of land.” Later Mary E. Clark and Genevieve Clark Hanna, the devisee of Ellen C. Hanna, undertook to convey to the defendant “all the oil and gas in, under and upon the land above described, (the land of the defendant), reserved by them or their predecessors.”</p> <p>The defendant was about to drill a well upon his land for the purpose of removing oil therefrom, when plaintiffs filed a bill in equity to restrain defendant from drilling such well or wells, alleging that Mary E. Clark and Ellen C. Hanna had declared at the time of leasing the property to plaintiffs that no wells should be drilled on defendant’s land by defendant, and that relying on such declarations and on covenants contained in various recorded deeds, plaintiffs had paid their lessors $16,000 for the privilege of taking oil and gas from the whole of the leasehold estate, which they averred gave them the right to take oil and gas from defendant’s land. There was no evidence of the declarations alleged in the bill. A preliminary injunction was granted, which, upon motion for a continuance thereof until final hearing, was dissolved. From the decree dissolving the injunction, plaintiffs appealed.</p> <p>Error assigned, among others, was in dissolving the injunction.</p>

<p>Waters — Water companies — Biversion of water — Mills—Measure of damages — Evidence—Question for jury.</p> <p>1. In an action to recover damages for the alleged unlawful diversion by the defendant of the waters of a stream on which plaintiff’s mill was located, by pumping water therefrom at various times within six years before the bringing of the action, it appeared that' after defendant’s pumping station had been installed, a sensible diminution in the flow of water had occurred, though the amount of water withdrawn did not appear. PlaintifE contended that he was thereby compelled to use power and to incur additional expense in the operation of his mill, and sought to measure his damages by these outlays. There was evidence that the diminution in the flow of water was not due entirely to defendant’s pumping. The jury was instructed that plaintiff could recover only for such expenditures as were compelled by defendant’s acts, and fdund á verdict for plaintiff which the court held excessive and reduced to a sum reasonable under the evidence for which judgment was entered. Held, no error.</p> <p>2. ,In such a case the introduction of evidence of the average amount of water in the stream for a period prior to the installation of defendant’s pumping station was not prejudicial to defendant, .where it appeared therefrom that the water was at times so low that auxiliary power was required to run plaintiff’s mill.</p>

<p>Appeals, Nos. 137 and 138, Oct. T., 1913, by plaintiffs, from decree of C. P. Allegheny Co., July T.,. 1913, Nos. 528-529, dissolving preliminary injunction in case of George W. Ingram, John C. Ingram, et al., Heirs at law of William Ingram, deceased, v. E. A. Bream and the Valvoline Oil Company, á corporation of New Jersey, doing business as the Valvoline Pipe Lines, and the Valvoline Oil Works, Limited, and the Valvoline Pipe Lines; and in case of George W. Ingram, John C. Ingram, et al., Heirs at law of William Ingram, deceased, v. E. A. Bream, and the Valvoline Oil Company, a corporation of New Jersey, doing business as the Valvoline Pipe Lines, and the Valvoline Pipe Works, and the Valvoline Pipe Lines and Thomas R. Ingram.</p> <p>Motion for preliminary injunction. Before Maofarlane, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted a preliminary injunction, which it subsequently dissolved. Plaintiffs appealed.</p> <p>Error assigned was the decree of the court dissolving the preliminary injunction.</p>

<p>Appeal, No. 126, Jan. T., 1913, by plaintiff, from judgment of C. P. York Co., Aug. T., 1911, No. 2, refusing to take off nonsuit in case of George W. Brenner, now by Mary A. Brenner, Executrix of the last will and testament of George W. Brenner, deceased, v. The Heany Lamp Company, a corporation under the laws of the State of Maine.</p> <p>Trespass to recover damages for personal injuries. Before Boss, A. L. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The action was begun by George W. Brenner for injuries alleged to have been sustained by him through the negligence of the defendant company. Subsequently he died and the action was continued by his widow and executrix, damages being claimed for his death. At the trial the court entered a compulsory nonsuit which on motion it refused to take off.</p> <p>Error assigned was, inter alia, the action of the court in refusing to take off the nonsuit.</p>

<p>Malicious prosecution — Question for the court — Larceny—Evidence — Record in evidence — Probable cause — Motives—Binding instructions.</p> <p>1. In an action for malicious prosecution, if the facts connected with the prosecution are admitted, or so clearly established as not to be open to dispute, the question of probable cause is for the court.</p> <p>2. In an action for malicious prosecution based upon an arrest for the alleged larceny of a team of mules, the record of a replevin suit for the mules which resulted in a judgment in favor of the defendant in the action for malicioiis prosecution, is admissible in evidence.</p> <p>3. While it is well settled that the institution of a criminal prosecution for tbe purpose of compelling a debtor to pay his debt is prima facie evidence of want of probable cause and of malice, shifting the burden of proof, it is equally true that, where a defendant in an action for malicious prosecution shows probable cause, his motives in instituting the prosecution are of no consequence, become immaterial and cannot be taken into consideration by court or jury.</p> <p>4. In an action for malicious prosecution it appeared that defendant, after buying a team of mules from plaintiff, had employed plaintiff in Maryland as his teamster. A short time later defendant was informed that plaintiff had started off with the mules toward Pennsylvania under suspicious circumstances. Defendant caused plaintiff’s arrest upon his arrival in that State, but abandoned the prosecution upon being advised by counsel that the larceny, if any, had been committed in Maryland, and was, therefore, not cognizable in Pennsylvania. Held, probable cause for the prosecution was sufficiently shown, and the court was correct in directing a verdict for the defendant.</p>

<p>Appeal, No. 157, Jan. T., 1913, by defendant, from judgment of C. P. York Co., Oct. T., 1912, No. 35, on verdict for plaintiff in case of First National Bank of York v. Guy Webster.</p> <p>Assumpsit on promissory note. Before Ross, J.</p> <p>It appeared by tbe record that on April 25, 1912, the plaintiff discounted a note of J. S. Black for $5,000, payable one hundred and twenty days after date, to the order of O. O. Ettline and endorsed by Ettline and by Guy Webster the defendant. The note was not paid at maturity and protest was waived by the endorser. On September 19, 1912, the bank brought suit against Webster, the second endorser. Further facts appear by the opinion of the Supreme Court.</p> <p>The defendant made certain offers of evidence, which, with the court’s rulings thereon, were as follows:</p> <p>“Mr. Black. I propose to show by the witness on the stand and the books he has produced, on November 8th, .1912, O. O. Ettline, the first endorser on this note, paid the sum of $50.00 to the First National Bank which was applied by the bank to the payment of interest at that time accrued on the note, and in addition interest in advance on the note to December 20th following. For the purpose of showing a definite extension of time to O. O. Ettline, the first endorser, which, as a matter of law if a fact, is release of Guy Webster the second endorser.</p> <p>“Mr. Niles. Objected to as not proper legal evidence for any purpose for the defendant in this issue. That the receipt of $50.00 on account is no defense to the payment of the balance, and is not evidence for the defendant in this issue. It is irrelevant and immaterial.</p> <p>“By the Court. As the offer stands we are inclined to overrule it. We will hear you, Mr. Black.</p> <p>(Discussion.)</p> <p>“Mr. Niles. It is further objected to that the offer itself shows that the $50.00 did not anywhere near pay the interest on the note.</p> <p>(Discussion.)</p> <p>“By the Court. We will overrule the offer, and seal an exception for the defendant. (1)</p> <p>“Mr. Black. It already being in evidence that O. O. Ettline, the first endorser, paid on account of this note to the First National Bank on October 3d, 1912, $25.00; October 8th, 1912, $50.00, and on December 3d, 1912, $25.00, I now propose to prove that on November 8th he páid to the bank the sum of $50.00, and on that day the bank applied so much of the payment of $50.00 as was necessary to pay in advance the interest on the remainder of the note in question then due to . December 20th following. For the purpose of showing the facts from which the jury may find a definite extension of time to O. O. Ettline, the first endorser.</p> <p>“Mr. Niles. This offer is objected to as irrelevant and immaterial; not proper legal evidence for any purpose for the defendant in this issue. That it does not offer any fact showing, or tending to show, an agreement between the bank and O. O. Ettline whereby the bank was precluded from demanding or suing for the amount owing by Ettline upon this note. There is no offer to show that there was any such agreement, or any agreement with Mr. Ettline. There is no offer to show there was any authority or ratification or authorization by the board of directors for any such contract. The offer is relevant to matters occurring after the suit was brought against this defendant, and it is irrelevant, immaterial and inadmissible.</p> <p>“By the Court. The objection is sustained, the offer overruled and an exception sealed for the defendant.” .(2)</p> <p>The court directed a verdict for the plaintiff which was found in the sum of $5,000, and judgment entered thereon. Defendant appealed.</p> <p>Errors assigned were (1-2) rulings on evidence.</p> <p>The payment of interest in advance is a sufficient consideration for an agreement to extend the time of payment: Grayson’s App., 108 Pa. 581; Siebeneck v. Anchor Savings Bank, 111 Pa. 187; Bishop’s Est., 195 Pa. 85.</p> <p>The burden of showing that the person secondarily liable assented to the extension is on the party seeking to charge him: Siebeneck v. Anchor Savings Bank, 111 Pa. 187.</p> <p>• The receipt of interest in advance to a period beyond the maturity of a note is prima facie proof of an agreement to extend the time of payment: Walters v. Swallow, 6 Wharton 446; Siebeneck v. Anchor Savings Bank, 111 Pa. 187; Okie v. Spencer, 2 Wharton 253; Grayson’s App., 108 Pa. 581.</p> <p>After a creditor has nxade an application of a payment, it cannot be altered except by mutual consent, and cannot be altered at all to the prejudice of the rights of third parties: Chancellor v. Schott, 23 Pa. 68; Allegheny Valley E. E. Co. v. Houston, 27 Pitts. Leg. J. 82; Berghaus v. Alter, 9 Watts 386.</p> <p>A surety on a promissory note is not released from liability by the mere payment of interest by the principal, where it does not appear that the interest was paid in advance, or that the note was extended, or in any way varied in its terms: Butler’s Est., 30 Pa. Sxxperior Ct. 84.</p> <p>It is a well settled rub; that part payment of a debt, either principal or interest, after maturity, is not a sufficient consideration to support an agreement to give time upon the residue: Grayson’s App., 108 Pa. 581.</p> <p>An agreement to extend the time for the payment of a note must have the essential elements of a contract, including a sufficient consideration and a definite extension of time: Campbell v. Floyd, 153 Pa. 84.</p> <p>A payment of interest after the maturity of a debt is not sufficient consideration to extend the time for payment; and a promise of extension given under such circumstances will not release a surety: Boring’s App., 7 Sadler 362.</p>

<p>Contracts — Contracts under seal — Waiver of covenants — Rescission — Breach of covenant — Assumpsit—Case for jury — Measure of damages.</p> <p>, In an action to recover damages for tbe alleged breach of a contract, under seal, constituting the plaintiff the agent for one year for the sale of defendant’s automobiles in a designated territory, it appeared by the terms of the contract that the plaintiff had the privilege of renewal for another year. Plaintiff complained that defendant had violated the contract by refusing to deliver all the cars, and by refusing to renew the contract though requested so to do. Defendant alleged that the contract had been rescinded by parol, and offered evidence that the cars delivered to plaintiff had not been paid for in the manner provided in the contract. Plaintiff conceded that he had not paid for the cars in the manner provided in the contract but contended that certain covenants of the contract as to the payment for cars had been mutually waived by parol, but that in other respects the contract remained in force until the time of the alleged breach. Held, the question as to whether the contract had been entirely abandoned or whether there had been a waiver by parol of certain covenants thereof, was properly left to the jury.</p>

<p>Waters — Diversion of waters — Riparian owners — Equity—In* junction — Decree.</p> <p>1. A bill in equity for an injunction alleged that plaintiff was a riparian owner on the eastern shore of a river, and that defendant, a riparian owner on the western shore, had placed dams in the river above plaintiff’s land and had deepened the western channel, whereby the water which would otherwise flow through the eastern channel past plaintiff’s land, was largely diverted to the western channel. The bill prayed that defendant be enjoined from diverting the waters of the river from the eastern channel by obstructions or by dredging in the western channel, and that it be required to replace in the western channel the sand and stones which it had removed therefrom. The findings of the chancellor that plaintiff was a riparian owner, and that defendant’s acts had caused plaintiff an “injury and special damage differing in kind and degree from the injury and damage to the general public,” were supported by the evidence. The court properly enjoined the defendant from maintaining obstructions in the eastern channel which could in any way diminish the actual flow of water which would otherwise flow through the eastern channel in front of plaintiff’s farms.</p> <p>2. In such a case plaintiff’s prayer for a mandatory order to compel the defendant to replace the sand and stone to be removed from the eastern channel back into the western channel from which it was originally taken, “to the end and to the full effect that the said waters of the eastern channel be restored to the natural flow as before any interference therewith was had by the defendant,” and that the defendants shall, be restrained from at any time in the future dredging or deepening the western channel so as to draw the water from the eastern channel was properly refused, as such an order would be difficult if not impossible to enforce, and is not necessary to effective relief in the case.</p> <p>3. In such a case neither the decree nor the findings of the chancellor have or justifiably can be given the effect of depriving the defendant of any rights, powers, or privileges to which it may be entitled under Mill Dam Act of March 3, 1803, 4 Sm. Laws 20; or under the Water Commission Acts of May 4, 1905, P. L. 385, and May 28, 1907, P. L. 299, or which it may enjoy as a public service corporation vested with the right of eminent domain.</p> <p>Equity practice — Decrees—Equity Bule 8k.</p> <p>4. No error was committed by the court in such case in entering a decree drawn by the judge who tried the case, where the decree afforded plaintiff all the relief to which he was entitled. The direction of Equity Rule 84, that “the decree shall be drawn by the solicitor of the parties in whose favor it is,” was intended 'merely for the relief and assistance of the court; it was not intended to limit the power of the court to formulate its own decrees.</p>

<p>Appeal, No. 4, May T., 1913, by defendant, from judgment of C. P. Dauphin Co., March T., 1906, No. 161, on verdict for plaintiffs in case of James Duffy, Donald C. Duffy and Mary Agnes Duffy v. York Haven Water and Power Company.</p> <p>Trespass to recover damages for injuries caused by floods, due to the placing of obstructions in a river. Before Little, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $11,910.00, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings of the trial judge and various instructions to the jury.</p>

<p>Sheriffs’ sales — Proceeding to obtain possession of premises— Act of June 16, 1886, P. L. 766 — Adverse claimant — Justice’s warrant — Eviction of tenant — Sheriff—Exceeding authority — Trespass for damages.</p> <p>1. A sheriff or other ministerial officer is protected in executing a valid writ according to its commands, but when he departs from its commands he is a trespasser and liable for damages resulting to the injured party. He acts at his peril, and his writ is not a justification for an act which it does not demand him to do</p> <p>2. Proceedings by a purchaser at sheriff’s sale under the Act of June 16, 1836, P. L. 755, to obtain possession of land sold by virtue of an execution, are directed against the defendant in the execution or those holding under his title, and if the sheriff in executing the warrant finds an adverse claimant in possession and ousts him therefrom, he becomes a trespasser.</p> <p>3. The plaintiff in an execution against the alleged owner of a farm, purchased the same at sheriff’s sale, and upon possession being refused instituted proceedings under the (Act of June 16, 1836, to obtain possession. A jury of six men was summoned by the justice, and the case was duly tried, resulting in favor of the plaintiff in the execution. A warrant of the justice was then issued to the sheriff, commanding him to dispossess the defendant in the execution or anyone claiming under her, and to place the plaintiff in the execution, and purchaser at sheriff’s sale, in possession. When the sheriff attempted to execute the writ he found a party in possession, who claimed title adversely to the defendant in the first execution. The sheriff evicted this party, who subsequently recovered possession in an action of ejectment. This action was then brought by the party so evicted to recover damages against the purchaser at the sheriff’s sale, and the sheriff and his deputies who had executed the writ. Held, plaintiff was entitled to recover against the sheriff and his deputies, particularly as it appeared that he was not in possession of the premises when the action was begun by the purchaser at sheriff’s sale, and had not been served with any notice of the proceedings before the justice, and, therefore, had had no opportunity to establish his title in the way provided by the statute.</p>

Appeal, No. 18, May T., 1913, by James P. Waltz, from decree of O. C. Fulton Co., refusing to direct the surrender of letters of administration and the issuance of letters testamentary in the Estate of William H. Nelson, deceased. Appeal from decree of Orphans’ Court reversing in part the decision of the register of wills. Before Swope, P. J. The facts are stated in the opinion of the Supreme Court.

Appeal, No. 30, May T., 1918, by' defendant, from decree of Q. S. Fulton Co., Jan. Sess., 1913, No. 1, dismissing exceptions and ordering filing of declaration of state highway commissioner in case of State Highway Commissioner v. The President and Managers of the Chambersburg and Bedford Turnpike Hoad Company. Proceedings to condemn a turnpike road under the Act of May 31,1911, P. L. 468. Before Swope, P. J. The opinion of the Supreme Court states the case.

<p>Appeal, No. 28, May T., 1913, by defendant, from decree of ouster of C. P. Dauphin Co., Com. Docket, 1912, No. 5, in case of Commonwealth of Pennsylvania, ex rel. John C. Bell, Attorney General, v. The Reliance Safe Deposit & Trust Company, Pittsburgh.</p> <p>Quo warranto to forfeit charter of a corporation.</p> <p>McCarrell, J., filed the following opinion:</p> <p>The suggestion for the writ in this case is based upon information of the banking commissioner to the attorney general, communicating to him the fact that “The Reliance Safe Deposit and Trust Company, Pittsburgh, which had the right to receive deposits of money has not paid in the capital required by law and has not exercised the powers conferred upon said company by its letters patent.” This suggestion was amended by adding thereto the allegation that the defendant company “has failed to exercise its corporate privileges for two years after having been liquidated.”</p> <p>The facts are not in dispute and are covered by the following statement:</p> <p>1. The corporate existence of the defendant company was originally derived from an Act of the General Assembly, approved April 5, 1872, P. L. 972, which incorporated it as “The Safe Deposit and Trust Company of Wheatland.”</p> <p>2. By proceedings in the Court of Common Pleas, No. 1, of Allegheny County, Pa., to No. 947 March Term, 1873, the corporate name was changed to “Penn Bank” and notice of the change of name was given to and accepted by the Auditor General under his hand and official, seal February 7th, 1873.</p> <p>- 3. The Penn Bank made a voluntary assignment for benefit of its creditors, and proceedings thereunder were docketed in the Court of Common Pleas, No. 1, of Allegheny County, Pa., to No. 23, September Term, 1884, and William K. McGinness, assignee, sold the corporate franchises, rights and property of said bank to Samuel B. Hartwell, and conveyed the same by bill of sale, dated and delivered May 14th, 1904.</p> <p>4. Samuel B. Hartwell, the purchaser of said corporate rights and franchises, together with the persons for and on whose account the aforesaid property, franchises and rights were purchased, after having given due public notice as required by law, met in the City of Pittsburgh, June 6th, 1904, and proceeded to organize a new corporation upon the basis of the aforesaid purchase in accordance with the Act of April 8, 1861, and the supplementary Act approved May 25, 1878, as also under the several acts supplementary to and amendatory of the said Act of May 25, 1878.</p> <p>5. On June 18, 1904, the certificate of the organization of said new corporation was filed with the secretary of the commonwealth, setting forth,</p> <p>(a) That the name adopted by the said corporation is the Reliance Safe Deposit and Trust Company;</p> <p>(b) That the amount of the capital stock is fixed at $200,000.00, divided into 4,000 shares of the value of $50.00 each.</p> <p>(c) That 4,000 shares of the par value of $50.00 each, making $200,000.00 of the capital stock, to be deemed and taken as full paid stock are to be issued to the persons for and on whose behalf said property, franchises and rights were purchased in payment for their respective interests in the same.</p> <p>The certificate of organization also gives the name of the president and directors of the corporation chosen to serve until the first Monday of May, A. D. 1905.</p> <p>The testimony taken at the hearing shows that an election for president and directors was duly held at the proper time in May, 1905, and that annual elections have been regularly held since that time, a president and directors being chosen by the stockholders. Nothing, however, has been done except to hold these annual meetings of stockholders.</p> <p>It further appears that the price paid by Samuel B. Hartwell for the property, rights and franchises purchased by him at the assignee’s sale, above mentioned, was $10.00. It was upon the property so purchased by Samuel B. Hartwell that the organization of the defendant company was effected. The stock was issued in accordance with the terms of the certificate of organization hereinbefore mentioned. The defendant company has received no additional subscription to its capital stock and no money has been paid in by the persons on whose account the property and franchises were purchased, as above stated.</p> <p>The defendant company contends that the Act of April 23, 1909, P. L. 143, under which this proceeding is instituted, is unconstitutional for the reason that its subject is not clearly expressed in the title as required by Article III, Section 3. It suggests that the words “which have not commenced business within two years from the date of their letters patent” are not contained in the enacting clause, and that the words “which have not paid in the capital required by law and have not in any manner exercised the powers conferred upon them by their letters patent” are not clearly expressed in the title. The title is as follows: “An Act to provide that corporations of this Commonwealth having the right to receive deposits of money and to do a banking business which have not commenced business within two years from the date of their letters patent, or which have failed to exercise their corporate privileges, for two years after having been liquidated, shall be proceeded against by quo warranto by the attorney general at the instance of the banking commissioner to have their charter rights declared null and void.”</p> <p>The statute enacts, as follows:</p> <p>“That all corporations in this Commonwealth having the right to receive deposits of money and to do a banking business which have not paid in the capital required by law and have not in any manner exercised the powers conferred upon them by their letters patent, or which have failed to exercise their corporate privileges, for two years, after having been liquidated, shall be returned by the banking commissioner to the attorney general, who shall proceed by quo warranto in the proper jurisdiction against such companies to the end that they shall be ousted from their charter rights and their corporate privileges and be declared null and void.”</p> <p>The defendant by its answer practically admits that it has no tangible corporate property, that it has not paid in any money, has not commenced business, and that it has exercised no corporate privilege unless the annual elections of president and directors be such exercise. The franchise conferred upon it by its charter was so conferred presumably for some public advantage. It has not secured any office or in any way qualified itself to receive deposits of money or do a banking business.</p> <p>The defendant contends that the Act of April 23,1909, is unconstitutional because the title thereto is defective. The Constitution only requires that an act of the general assembly shall relate to a single subject which shall be clearly expressed in the title. The subject of the act in question here is the dissolution of corporations having the right to receive deposits of money and to> do a banking business. The title expressly states that such corporations shall be proceeded against by quo warranto if they (a) “have not commenced business within two years from the date of their letters patent,” or (b) “have failed to exercise their corporate privileges for two years after having been liquidated.” The act declares that such corporations may be proceeded against in the manner stated in the title when (a) “they have not paid in the capital required by law,” and (b) “have not in any manner exercised the powers conferred upon them by their letters patent,” or (c) “have failed to exercise their corporate privileges for two years after having been liquidated.” The title does not mention specifically “failure to pay in the capital required by law” as a ground for the commencement of proceedings to dissolve. The subject of the act being the dissolution of corporations of the character described, the title is sufficient to lead to inquiry as to the causes for which proceedings may be commenced, and this is all that is necessary. A title is not required to be a complete index to everything contained in the statute: State Line & Juniata R. R. Co.’s App., 77 Pa. 429; Esling’s App., 89 Pa. 205; Carother’s App., 118 Pa. 468.</p> <p>Even if a provision is contained in a statute of which no notice is given in the title, that provision alone would be unconstitutional and the remainder of the act would stand: Commonwealth v. Kebort, 212 Pa. 289.</p> <p>There is no dispute but that the corporation defendant is one of the class of corporations referred to in the Act of April 28, 1909. It is conceded that it has the right to receive deposits and do a banking business. The title gives distinct notice that the act is intended to provide for the dissolution of such corporations by proceedings in quo warranto. The title declares that such corporations “which have not commenced business within two years from the date of their letters patent, or which have failed to exercise their corporate privileges for two years after having been liquidated shall be proceeded against by quo warranto.” The statute provides, that when such corporations “have not paid in the capital required by law and have not in any manner exercised the powers conferred upon them by their letters. patent, or which have failed to exercise their corporate-privileges for two years, after having been liquidated” shall be proceeded against. There is no real conflict between the title and the statute. The act might have been more carefully drawn. The meaning of the words “after having been liquidated” which appear both in the title and in the body of the statute is not entirely clear. But it is not necessary to interpret them in the present case for no question of liquidation here arises, and the amendment of the original suggestion was not really required. The title expressly declares that a corporation which has not commenced business within two years from the date of its letters patent may be proceeded against. The statute declares that a corporation “which has not paid in the capital stock required by law and has not in any manner exercised the power conferred upon it by its letters patent” may be proceeded against. There is no specific statement in the title in regard to failure to pay in the capital required, but failure to commence business within two years from the date of the letters patent is expressly stated to be sufficient cause for the institution of the proceeding. A corporation such as is referred to in the statute could not commence business or exercise its corporate privileges without having first paid in its capital stock. The payment of the capital or the providing of capital with which to do business is a necessary pre-requisite to the commencing of business or the exercise of corporate privileges, and we regard the title in this particular as sufficient. The defendant company admittedly has not paid in or secured any money for the purpose of enabling it to do the business of receiving deposits or carrying on banking. Much more than two years have elapsed since the corporation was created. It was organized solely upon the basis of the invisible intangible franchise purchased at the assignee’s sale for the sum of $10.00. It valued that franchise at $200,000.00 and issued certificates of stock to that amount to the persons interested in the purchase. This gave the corporation no.capital or money with which to carry on the corporate business. At the time of its organization it had no money for the purpose of carrying on the corporate business or exercising corporate privileges. In the eight succeeding years it has failed to provide, any money for the conduct of the corporate business or to procure a place for the exercise of its corporate privileges. It has done nothing more than annually elect a president and directors. This, as we view it, is not carrying on corporate business or in any manner exercising the powers conferred by the letters patent. The defendant made no reports to the auditor general and has paid no tax of any kind to the Commonwealth. It has held and still holds a naked franchise without any attempt to use it for the purpose for which it was granted and has brought itself within the provisions of the statute under which this proceeding has been commenced. The privileges conferred by the Act of April 5,1872, P. L. 972j could not now be acquired by any corporation organized under our general laws, because the granting of charters for the varied purposes covered by this Act of 1872 is no longer regarded as proper. If the defendant company had made use of its franchise by providing the money or capital with which to do business and by conducting business in good faith and had exercised its corporate privileges in any way whatever, it might claim the right to retain the privileges granted by this act of assembly.</p> <p>After careful consideration of all the testimony in the case, we are satisfied that the defendant company has failed to exercise in any manner whatsoever the powers conferred upon it by its letters patent, and that the Commonwealth is entitled to have a judgment of ouster and a decree that the charter rights and corporate privileges of the defendant company are henceforth null and void. A decree to that effect and directing that the defendant shall pay the costs of this proceedings may be prepared and presented for signature.</p> <p>The court made a decree of ouster. Defendant appealed.</p> <p>Error assigned, was, inter alia, the decree of the court.</p> <p>The Act of April 23, 1909, P. L. 143, is unconstitutional because its title is defective.</p> <p>Even if the act is constitutional, the decree was not warranted.</p> <p>The dissolution of a corporation is not necessarily implied from its cessation of actual business: Com. v. Overholt, 23 Pa. Superior Ct. 199; Brinckerhoff v. Brown, 7 Johns. Ch. 217; American Transfer Co.’s Petition, 29 Lane. L. R. 249.</p> <p>—The Act of 1909 is constitutional; its title sufficiently expresses its subject matter: Kelley v. Mayberry Twp., 154 Pa. 440; Myers v. Commonwealth, 110 Pa. 217; In re Airy Street, 113 Pa. 281; Philadelphia v. Ridge Ave. Ry. Co., 142 Pa. 484; Dorrance v. Dorranceton Boro., 181 Pa. 164; Sugar Notch Boro., 192 Pa. 349; Commonwealth v. Gilligan, .195 Pa. 504; Rose v. Beaver Co., 204 Pa. 372; Commonwealth v. Jones, 4 Pa. Superior Ct. 362.</p> <p>Even if unconstitutional in part, the statute would still apply to this appellant: Connolly v. Sewer Pipe Co., 184 TJ. S. 540; Commonwealth v. Kebort, 212 Pa. 289; Smith v. McCarthy, 56 Pa. 359; Lea v. Bumm, 83 Pa. 237; Philadelphia, Etc., Railway Co.’s Petition, 203 Pa. 354.</p> <p>The evidence was sufficient to sustain the proceeding: Com. v. Commercial Bank, 28 Pa. 383.</p>

Appeal, No. 33, May T., 1913, by defendants, from decree of C. P. Dauphin Co., Equity Docket, No, 165, granting specific performance of a contract for the sale of realty in case of Henry A. Gable v. George A. Whiteside, John E. Whiteside and Harry I. Whiteside, and Harry I. Whiteside as Executor of George A. Whiteside, deceased, and Margaretta P. Whiteside, deceased. Bill for specific performance of a contract for the sale of realty.

Appeals, Nos. 24, 25, 26 and 27, May T., 1913, by defendant, from judgment of C. P. Dauphin Co., Com. Docket, 1909, Nos. 39, 40, 41 and 42, for plaintiff! in cases of Commonwealth of Pennsylvania v. Dilworth, Porter & Company, Ltd. Assumpsit for taxes. Before McCarrell, J. The case was tried by the court without a jury by agreement.

Appeal, No. 20, May T., 1913, by plaintiff, from judgment of C. P. Dauphin Co., Com. Docket, 1912, No. 74, for defendant in case of Commonwealth of Pennsylvania v. Highspire Distillery Company, Ltd. Appeal from the settlement of an account by the auditor general and state treasurer. Before McCar-RELL, J. The case was by agreement tried by the court without a jury. The opinion of the Supreme Court states the facts. Judgment was entered in favor of the defendant.

<p>Appeal, No. 22, May T., 1913, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1909, No. 330, for defendant n. o. v., in case of E. G. Shope v. Central Pennsylvania Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before McCarrell, J,</p> <p>Plaintiff testified that as he approached a crossing of defendant street car company, he looked and listened for. an approaching car. Other facts appear in the opinion of the Supreme Court. .</p> <p>Verdict for plaintiff for $2,000. Subsequently the court entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was the entry of judgment for defendant n. o. v.</p> <p>cited: Groner v. D. & H. Canal Co., 153 Pa. 390; Arnold v. P. .& R. R. Co., 161 Pa. 1; Haas v. Chester St, Ry. Co., 202 Pa. 145; Conyngham v. Erie Electric Motor Car Co., 15 Pa. Superior Ct. 573; Holden v. R. R. Co., 169 Pa. 1; Hobel v. Railroad & Light Co., 233 Pa. 450; Haas v. N. C. R. Co., 49 Pa. Superior Ct. 106; Sheetz v. United Traction Co-., 49 Pa. Superior Ct. 177; Howard v. B. & o: R. R. Co., 219 Pa. 358; Kuntz v. Railroad Co., 206 Pa. 162; Kelly v. Traction Co., 204 Pa. 623; Meyers v. Central R. R. Co,, of N, J., 218 Pa. 305; Bickel v. Penna. R. R. Co., 217 Pa. 456; Bane v. Pittsburgh Rys. Co., 238 Pa. 216.</p>

<p>Appeal, No. 31, May T., 1913, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1910, No. 489, for respondent in quo warranto in case of Commonwealth ex reí. M. Hampton Todd, Attorney General, v. The Philadelphia Contributionship for the Insurance of Houses from Loss by Fire.</p> <p>Quo warranto to test the right of respondent to exercise certain powers claimed. Before Kunkel, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The respondent filed an answer to which the plaintiff demurred, and judgment was entered for the respondent on the demurrer. Plaintiff appealed.</p> <p>Error assigned, among others, was the judgment of the court.</p>

<p>Negligence — Mines and mining — Trucks — Defective cables — Evidence — Contributory negligence — Case for jury.</p> <p>1. In an action against a mining company to recover damages for the death of plaintiff’s husband, an employee in defendant’s mine, the case is for the jury and a verdict for the plaintiff will be- sustained where it appears that deceased was in a truck which was being drawn from defendant’s mine to the surface by a wire cable and that as the truck neared the top of the slope the cable parted, causing the accident and death; and the evidence was conflicting as to whether a certified mine foreman had entire charge of the mining operations or whether the servants of the defendant also had charge, and warranted the finding that the inspection was insufficient.</p> <p>2. In such a case the deceased could not be held guilty of contributory negligence as a matter of law where it appears that the truck in which he was riding was carrying thirteen men when the cable broke, though the statute prohibited the carrying of more than ten men in such trucks and the company’s rules limited the number to eight; that deceased was the first man in the truck; and that it was uncertain from the evidence whether deceased knew there were too many in the truck, or whether, if he did, that he had an opportunity to alight in safety, or whether the accident was caused by the overloading of the car.</p>

<p>School law — School code — Act of May 18, 1911, P. L. 809 — Collector of school taxes — Cities of the third class — City treasurer— A ct of June 20,1901, Section 8, P. L. 578 — Construction.</p> <p>1. The School Code of May 18, 1911, P. L. 309, does not provide for the election of collectors of school taxes; it was the plain intention of the legislature to leave undisturbed former acts which provided for the election of tax collectors by the people.</p> <p>2. The Act of June 20, 1901, P. L. 578, providing that the city treasurer in cities of the third class, by virtue of his office shall be collector of the school taxes therefor, is of general application and was intended to provide a uniform system for the collection of such taxes in cities of the third class.</p> <p>3. Section 8, of such act, declaring that the school taxes to be collected under the act are the school taxes only which are levied by the boards of school controllers, organized under the Act of May 23, 1874, P. L. 230, was intended to place limitations upon the operation of the act merely for the purpose of meeting certain local conditions growing out of then existing legislation not general in character.</p> <p>4. By the Act of May 18, 1911, P. L. 309, the legislation which resulted in Such conditions was repealed, and a new and complete system for the regulation and maintenance of the public schools was provided, so that section 8 of the Act of 1901, is no longer of any binding effect.</p> <p>5. Where prior to the passage of the Act of May 18, 1911, P. L. 309, it had been adjudged that section 8 of the Act of June 20, 1901, excluded from the operation of the other sections of the act a school district comprising a city of the third class, organized prior to the Act of May 23, 1874, P. L. 230, so that the city treasurer of such city was -not entitled to collect the school taxes for such school district, the court erred, subsequent to the enactment of the school code, in failing to recognize that the conditions intended to be met by section 8 of the-Act of June 20, 1901, no longer existed, and in mandamus proceedings instituted by the city treasurer of a city of the third class to compel the board of directors of the school district to turn over to him the duplicates of tax bills for school purposes, and warrants authorizing him to collect such taxes, judgment should have been' given for the plaintiff.</p> <p>Copelin v. School Directors, 215 Pa. 359, distinguished and explained.</p>

Appeal, No. 99, Jan. T., 1913, by defendant, from judgment of C. P. Lancaster Co., Sept, T., 1905, No. 34, on verdict for plaintiffs in case of Andrew H. Hershey, Ezra M. Good, to the use of J. W. Fehl, Christian H. Nolt, and Cecilia Good, now to the use of J. W. Fehl, v. H. S. Kerbaugh, Incorporated, and the Pennsylvania Railroad Company. Trespass to recover damages for obstructing a river channel and a public road. Before Evans, P. J., specially presiding.

Appeal, No. 181, Jan. T., 1913, by defendant, from judgment of C. P. York Co., April T., 1913, No. 132, for plaintiff, on case stated in case of Henry Small, John H. Small, David E. Small and Julia Small Gotwald, v. Jacob F. Small. Case stated to determine title to real estate. Before Ross, J. The opinion of the Supreme Court states the case. The court entered judgment for plaintiffs. Defendant appealed. Error assigned was the judgment of the court.

<p>Appeal, No. 180, Jan. T., 1913, by defendant, from judgment of C. P. York Co., April T., 1913, No. 131, for plaintiff, on case stated in case of Julia Small Gotwald v. Henry Small, surviving executor of the last will and testament of David E. Small.</p> <p>Case stated to determine the character of plaintiff’s interest in the residuary estate of a decedent. Before Ross, J.</p> <p>The facts appear in Small, et al., v. Small, 212 Pa. 235, and in the opinion of the Supreme Court.</p> <p>The court entered judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Miscellaneous Docket (No. 2), No. 619. Quo warranto by Commonwealth of Pennsylvania, ex rel. John C. Bell, Attorney General, v. Samuel M. Hyneman.</p> <p>Quo warranto proceedings. Original jurisdiction.</p> <p>The opinion of the Supreme Court states the case.</p> <p>cited: Stegmaier v. Jones; 203 Pa. 47; Dailey v. Potter County, 203 Pa. 593; Union Passenger Railway Co.’s App., 81* Pa. 91; Otto Township Road, 2 Pa. Superior Ct. 20, 181 Pa. 390; Com. v. Hopkins, 53 Pa. Superior Ct. 16; Gottschall v. Campbell, 234 Pa. 347.</p> <p>cited: Com. v. Harding, 87 Pa. 343; Com. v. Handley, 106 Pa. 245; Sharpless v. Philadelphia, 21 Pa. 147; Patterson v. Barlow, 60 Pa. 54; Com. v. Smith, 4 Binn. 117; Com. v. Zephon, 8 W, & S. 382; Com. v. Martin, 2 Pa. 244; Kilpatrick v. Com., 31 Pa. 198; Foust v. Com., 33 Pa. 338; Application of the President Judges, 64 Pa. 33; Com. v. Green, 58 Pa. 226; Com. v. Hippie, 69 Pa. 9; Morgan v. Reel, 213 Pa. 81; Com. v. Johnson, 236 Pa. 412.</p>

<p>Miscellaneous Docket (No. 2), No. 620. Quo warranto by Commonwealth of Pennsylvania, ex rel. John C. Bell, Attorney General, v. Thomas D. Finletter.</p> <p>Quo warranto proceedings. Original jurisdiction.</p>

<p>Miscellaneous Docket (No. 2), No. 622. Quo warranto by Commonwealth of Pennsylvania, ex rel. John C. Bell, Attorney General, v. Joseph P. McCullen.</p> <p>Quo warranto proceedings. Original jurisdiction.</p>

<p>Miscellaneous Docket (No. 2), No. 621. Quo warranto by Commonwealth of Pennsylvania, ex rel. John C. Bell, Attorney General, v. William M. Stewart, Jr.</p> <p>Quo warranto proceedings. Original jurisdiction.</p>

<p>Miscellaneous Docket (No. 2), No. 623. Quo warranto by Commonwealth of Pennsylvania, ex rel. John C. Bell, Attorney General, v. D. Webster Dougherty.</p> <p>Quo warranto proceedings. Original jurisdiction.</p>

<p>Appeals, Nos. 324 and 70, Jan. T., 1913, by William E. Eichards individually and as Eeceiver of tbe Smith Construction Company, and by the United States Fidelity & Guaranty Company, from decree of C. P. No. 5, Philadelphia Co., December T., 1904, No. 3159, in Equity, sustaining exceptions to auditor’s report in the case of The Tenth National Bank of Philadelphia v. Smith Construction Company.</p> <p>Exceptions to report of Thomas D. Finletter, Esq., auditor appointed to pass upon the account of William R. Richards, Receiver of the Smith Construction Company. Before Staake, J.</p> <p>The Tenth National Bank of Philadelphia, a creditor of the Smith Construction Company, a corporation engaged largely in the construction of railroads, filed a bill in equity for the appointment of a receiver for said company, on January 27, 1905, and on the same day, William R. Richards, president of the company, was appointed receiver. The United States Fidelity & Guaranty Company executed the receiver’s bond in the sum of $100,000. The receiver’s account was referred to the above named auditor, who surcharged the receiver in certain amounts, as appears by the opinion of the Supreme Court. On exceptions to the auditor’s report, the court below sustained certain of the exceptions and increased the amount of the surcharges. The Guaranty Company and Richards appealed.</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 92, Jan. T., 1912, by John Christian Bullitt, Jr., from the order of C. P. Delaware Co., March T., 1910, No. 353, sustaining exceptions to inquisition in lunacy in the matter of John Christian Bullitt, Jr., an alleged lunatic.</p> <p>Exceptions to inquisition. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was, among others, the quashing and dismissing of all the proceedings.</p> <p>At common law and under the Statute of 2 & 3 Edward VI, in proceedings de lunático inquirendo, the method of attacking the finding of the inquisition where it was against the sanity of the respondent was by traverse or petition, but the remedy by petition, as the concurrent remedy by traverse, could be utilized only by the lunatic for the purpose of upsetting a finding adverse to his mental soundness: In re Heli, 3 Atkyns 634; Ex parte Roberts, 3 Atkyns 5; In re Cummieng, 1 DeG. Mac. & G. 537.</p> <p>Prior to the Act of June 10, 1897, P. L. 138, the Court of Common Pleas did not even have the power to set aside an inquisition finding the fact of lunacy upon the ground that the evidence was insufficient to sustain the finding: In re Weaver, 116 Pa. 225.</p> <p>The Act of 1897 was passed for the purpose of annulling the effect of In re Weaver, but was not designed to give to the Courts of Common Pleas more power than they possessed under the English cases: In re Heff, 22 Pa. C. C. R. 289; Miller’s Alleged Lunacy, 27 Pa. C. C. R. 49; Huidekoper’s Case, 28 Pa. C. C. R. 394.</p> <p>In an application to have a person adjudged of unsound mind, where the finding is that the person is not of unsound mind, the proceeding is at an end and no appeal from such determination is contemplated or can be allowed: Studebaker v. Markley, 7 Ind. App. 368, 34 N. E. Repr. 606.</p> <p>The intent of the Act of June 10, 1897, P. L. 138, was to give to the persons who would have the right to traverse the finding of an inquisition, the right to have the proceedings before the inquisition reviewed by the court, so that neither party to the proceeding should be prejudiced by an improper finding: In re Heff, 22 Pa. C. C. R. 289; Miller’s Alleged Lunacy, 27 Pa. C. C. R. 49; Commonwealth v. Pitcairn, 204 Pa. 514.</p>

<p> Lunacy Commission de lunático inquirendo <—Parties—Exceptions to inquisition—Jurisdiction. </p> <p>1. Where in proceedings de lunático inquirendo the court has ordered the commissioner after his refusal to do so, to recognize certain persons as proper parties to the proceedings for the purpose of submitting testimony relating to the sanity or residence of the alleged lunatic or other matters relative to the proceedings, and the commissioner files his return eleven days after such order of the court, it is error for the court to sustain exceptions to and set aside the proceedings by reason of the refusal of the commissioner to hear such parties, where it does not appear from the record that the commissioner had any knowledge of the court’s order, or that, after it was made, Such parties had ever asked the commissioner to recognize and hear them in pursuance of it.</p> <p>2. In such a case the inquisition cannot be set aside on the ground that it did not appear irom tne turning or tne inquest or from the testimony taken that the respondent was a resident of this State, where the petition for the commission alleged that, at the time it was presented, the respondent was an inhabitant of this Commonwealth, that he was then absent therefrom, that his last place of residence was in the county where such petition was presented, and that he had real estate in such county, and the inquest found that respondent “in said commission named” was a lunatic.</p>

<p>Appeal, No. 44, Jan. T., 1913,: by defendant, from judgment of C. P. No. 4, Philadelphia. Co., June T., 1909, No. 3157, on verdict for plaintiff in case of Bessie G. Coleman v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Carr, J.</p> <p>Plaintiff’s decedent was a porter on a Pullman car,forming part of section 1 of train 21 on defendant’s railroad on the 23d of January, 1909. While on the said car, discharging Ms duties as a porter in the employ of the Pullman Company, he was killed at Summerhill, Pa., by a rear end collision with the second section of. train .21. The collision was due to a mistake in reading signals by the engineer of the second section.</p> <p>The defendant offered in evidence a contract dated September 14,1899, between the defendant and the Pullman Company, which provided, inter alia, as follows: “Sixth. The Pullman Company shall and will fully indemnify the Railroad Company against any and all-claims that may be at any time made, as follows:</p> <p>“(a) Claims of employees of the Pullman Company, or of their representatives, on account of death, personal, injury, or otherwise, howsoever occurring or sustained.”;</p> <p>The defendant also offered in evidence; a contract be-: tween the decedent and the Pullman Company, dated March 14th, 1905, and providing, inter alia, as follows:</p> <p>“Fourth. I assume all risks of accidents or casualties by railway travel or otherwise, incident to such employment and service, and hereby, for myself, my heirs, executors, administrators or legal representatives, forever release, acquit and discharge the Pullman Company, and its officers and employees, from any and all claims for liability of any nature or character whatsoever, on account of any personal injury or death to me in such employment or service.</p> <p>“Fifth. I am aware that said The Pullman Company secures the operation of its cars upon lines of railroad, and hence my opportunity for employment, by means of contracts wherein said The Pullman Company agrees to indemnify the corporations or persons owning or controlling such lines of railroad against liability on their part to the employees of said The Pullman Company in cases provided for in such contracts, and I do hereby ratify all such contracts made or to be made by said The Pullman Company and do agree to protect, indemnify and hold harmless said The Pullman Company with respect to any and all sums of money it may be compelled to pay, or liability it may be subject to, under any such contract, in consequence of any injury or death happening to me, and this agreement may be assigned to any such corporation or person and used in its defense.”</p> <p>The charter of the Pullman Company was offered in evidence, from which it appeared that the Pullman Company had no powers as a common carrier, its powers being defined by its charter as follows:</p> <p>“Section 4. The said corporation shall have power to manufacture, construct and purchase railway cars, with all convenient appendages and supplies for persons traveling therein, and the same may sell or use or permit to be used in such manner and upon such terms as the said company may think fit and proper.”</p> <p>Verdict for plaintiff for $5,000. The court overruled defendant’s motion for judgment n.. o. v., and entered judgment on the verdict. Defendant appealed.</p> <p>Error assigned was, inter alia, the refusal of judgment for defendant n. o. v.</p> <p>Coleman was not a passenger: Léwís v. Penna,, R. R. Co., 220 Pa. 317; Rose v. Penna. R. R„ Co., 17 Pa. D. R. 57; Smallwood v. R. R. Co., 215 Pa. 540; Penna. R. R. Co. v. Price, 96 Pa. 256; Price v. Penna. R. R. Co., 113 U. S. 218 (5 Sup. Ct. Repr. 127); Foreman y„ Penna. R. R. Co., 195 Pa. 199; Scott v. R. R. Co., 151 Fed. Repr. 931.</p> <p>The defendant quoad this action is not a common carrier: Pullman’s Palace Car Co. v. Missouri Pac. Ry. Co., 115 U. S. 587 (6 Sup. Ct. Repr. 191); Rose v. Penna. R. R. Co., 17 Pa. D, K. 57; Express Cases, 117 U. S. 1 (6 Sup. Ct. Repr. 512, 628) ; Russell v. Ry. Co., 157 Ind. 305 (61 N. E. Repr. 678); C., R. I. & P. Ry. Co. v. Hamler, 215 111. 525 (71N. E. Repr. 705).</p> <p>. As this is n.ot a case of passenger and common carrier there is no public policy which forbids the contracts here in evidence: Forepaugli v. R. R. Co., 128 Pa. 217; Denver & R. G. R. Co. v. Whan, 89 Pac. Repr. 39; Griswold v. R. R., 53 Conn. 371 (4 Atl. Repr. 261); Blank v< Illinois Cent. R. R., 80 111. App. 175; Blank v. Illinois Cent. R. R., 182 111. 332 (55 N. E. Repr. 332); Illinois Cent. R. R. v. Fulton, 108 111. App. 231; C., R. I. & P. Ry. Co. v. Hamler, 215 111. 525 (71 N. E. Repr. 705) ; Louisville, N., A. & O. Ry. v. Keefer, 116 Ind. 21 (11 N. E. Repr. 796); Pittsburgh, C., C. & St. L. Ry. Co. v. Mahoney, 118 Ind. 196 (16 N. E. Repr. 917; 17 N. E. Repr. 161); Russell v. Ry. Co., 157 Ind. 305 (61 N. E. Repr. 678); Cleveland, C., C. & St. L. Ry. Co. v. Henry, 83 N. E- Repr. 710,; Bates v. Old Colony R. R. Co., 117 Mass. 255 (17 N. E. Repr. 633)Hosmer v. Old Colony R. R..Co., 156 Mass. 506 (31 N. E. Repr. 652).; Robertson v. Old Colony R. R. Co., 156 Mass. 525 (31 N. E. Repr. 650); Coup v. Ry. Co., 56 Mich. Ill (22 N. W. Repr. 215); Peterson v. Chicago, Etc., R. Co., 96 N. W. Repr. 532; Chicago, M. & St. P. Ry. Co. v. Wallace, 66 Fed. Repr. 506; Hartford Fire Ins. Co. v. R. R., 70 Fed. Repr. 201; Balto. & O. S. W. Ry. Co. v. Voigt, 176 U. S. 498 (20 Sup. Ct. Repr. 385); McDermon v. Southern Pacific Co., 122 Fed. Repr. 669; New York Central R. R. Co. v. Difendaffer, 125 Fed. Repr. 893; Wilson v. Atlantic Coast Line, 129 Fed. Repr. 774; Long y. R. R., 130 Fed. Repr. 870; Kelly v. Malott, 135 Fed. Repr. 74; Clough v. Grand Trunk Ry., 155 Fed. Repr. 81; Graft v. B. & O. R. R. Co., 8 Atl. Repr. 206; Johnson v. R. R. Co., 163 Pa. 127; Ringle v. Penna. R. R. Co., 164 Pa. 529; Reese v. R. R. Co., 229 Pa. 340; Jack v. R. R. Co., 43 Pa. Superior Ct. 337; Hoffeditz v. Ry. & Mining Co., 129 Pa. 264.</p> <p>The defendant may avail itself of Coleman’s contract, even although Coleman’s contract was not directly with the defendant: Hoffeditz v. Ry. & Mining Co., 129 Pa. 264; Fairchild v. R. R. Co., 148 Pa. 527; Ringle v. Penna. R. R. Co., 164 Pa. 529; Robinson v. B. & O. R. R, Co. (Court of Appeals, Dist. of Columbia, decided March 10, 1913), 222 U. S. 506.</p> <p>The contract signed by Coleman, being expressed in general terms, will not be presumed to release the railroad company from liability for injuries caused by its own negligence: Mynard v. Syracuse, Etc., R. R. Co., 71 N. Y. 180; Holsapple v. Rome, Etc., R. R. Co., 86 N. Y. 275; Nicholas v. N. Y. C. & H. R. R. Co., 89 N. Y. 370; Kenney v. N. Y. C. & H. R. R. Co., 125 N. Y. 422 (26 N. E. Repr. 626); Perry v. Payne, 217 Pa. 252.</p> <p>A railroad or other common carrier cannot by contract stipulate against liability caused by its own negligence: Penna. R. R. Co. v. Henderson, 51 Pa. 315; Willock v. Penna. R E. Co., 166 Pa. 184; McMinn v. .Pittsburgh, Etc., R. R. Co., 147 Pa. 5.</p> <p>While not a “passenger,” Coleman was entitled to protection against the negligence of the railroad: Lockhart y. Lichtenthaler, 46 Pa. 151; Lackawanna & Bloomsburg R. R. Co. y. Chenewith, 52 Pa. 382.</p> <p>Under the Constitution and statutes of Pennsylvania, the owner of cars, whether for passengers or freight, may have them transported by railroads within the borders of this State, not as a matter of grace, but of right: Logan Coal Co. v. Penna. R. R. Co., 154 Fed. Repr. 497; Trunick v. Smith, 63 Pa. 18; Cumberland Valley R. R. Co.’s Appeal, 62 Pa. 218; Boyle v. Philadelphia & Reading Ry. Co., 54 Pa. 310.</p> <p>The contract is void since public policy allows no such stipulations between employer and employee: Johnston v. Fargo, 184 N. Y. 379 (77 N. E. Repr. 388; Tarbell v. Rutland Ry. Co., 73 Vt. 347 (31 Atl. Repr. 6); Blanton v. Dold, 109 Mo. 64 (18 S. W. Repr. 1149); Hissing v. Richmond & D. R. Co., 91 Ala. 514 (8 So. Repr. 776).</p>

<p>Appeal, No. 97, Jan. T., 1913, by plaintiffs, from judgment of C. P. No. 2, Philadelphia. Co., June T., 1911, No. 2844, refusing to take off nonsuit in case of William H. Piepke, by his father and next friend Henry Piepke, and Henry Piepke in his own right, v. Philadelphia & Beading Railway Company, a corporation.</p> <p>Trespass to recover damages for personal injuries to a child. Before Barratt, J.</p> <p>The opinion of the Supreme Court states the facts. The court granted a nonsuit which it subsequently refused to take off.</p> <p>Errors assigned were in refusing to take off the nonsuit and in excluding the evidence of plaintiff, William H. Piepke, who was seven years and three months old at the time of the accident and in excluding the evidence of Henry Epstein, who was a little younger than the plaintiff.</p> <p>The case was for the jury: North Penna. B. B. Co. v. Mahoney, 57 Pa. 187; Philadelphia & Beading B. B. Co. v. Long, 75 Pa. 257; Golden v. Penna. B. B. Co., 187 Pa. 635; Jones v. Harris, 186 Pa. 469; Holt v. Penna. B. B. Co., 206 Pa. 356; Keller v. Philadelphia & Beading By. Co., 214 Pa. 82; Kelly & Wife v. Philadelphia & Beading B. B. Co., 30 Legal Int. 140; Epley v. Lehigh Valley B. B., 3 Pa. Superior Ct. 509; Lederman v. Penna. B. B. Co., 165 Pa. 118; Daubert v. Bailroad Co., 199 Pa. 345; Taylor v. D. & H. C. Co., 113 Pa. 162; Philadelphia & Beading By. Co. v. Long, 75 Pa. 257; Bymowich v. Schuylkill By. Co., 231 Pa. 582; Parker v. Washington Electric St. By. Co., 207 Pa. 438; Philadelphia, Baltimore & Wash. B. B. Co. v. Layer, 112 Pa. 414; Philadelphia Passenger B. B. Co. v. Hazzard, 75 Pa. 367.</p> <p>The evidence of William Piepke and Harry Epstein should have been received: Com. v. Furman, 211 Pa. 549; Com. v. Wilson, 186 Pa. 1; Com. v. Ellenberger, 1 Brewster 352; Com. v. Carey, 2 Brewster 404.</p> <p>There are numerous decisions of this court showing that one who deviates from the permissible use of a highway and attempts its use in another way assumes all the risks incident thereto, whether he be adult or infant: Gaughan. v. Philadelphia, 119 Pa. 503; Oil City & Petroleum Bridge Co. v. Jackson, 114 Pa. 321; Widger v. Philadelphia, 217 Pa. 161; Pittsburgh, Ft. Wayne & Chicago Railroad Co. v. Evans, 53 Pa. 250; Holt v. Railroad Co., 206 Pa. 356; Railroad Co. v. Hummell, 44 Pa. 375; Moore v. Railroad Co., 99 Pa. 301; Philadelphia & Reading Railroad’Co. v. Heil, 5 W. N. C. 91; McMullen v. Railroad Co., 132 Pa. 107; Mitchell v. Railroad Co., 132 Pa. 226; Brague v. Railway Co., 192 Pa. 242; Leithold v. Railway Co., 47 Pa. Superior Ct. 137.</p> <p>The law fixes no precise age when a witness shall be excluded and inquiry is made by the court to ascertain the capacity of the witness, and the admission or rejection must depend upon the sound discretion of the judge making the examination. It must be a very flagrant case of error to authorize the appellate court to reverse the judgment: Com. v. Capero, 35 Pa. Superior Ct. 392 ; Com. v. Furman, 211 Pa. 549.</p>

<p>Appeals, Nos. 93 and 94, Jan. T., 1913, of Richard Hayden and George R. Hayden, from decree of O. 0., Philadelphia Go., Oct. T., 1912, No. 172, dismissing exceptions to adjudication in Estate of Georgiana Harrah Peterson, deceased.</p> <p>Exceptions to adjudication of Gest, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Error assigned was in dismissing the exceptions to the adjudication.</p> <p>The actual intention of the testatrix at the date of her will is not material: Roney v. Stiltz, 5 Wharton 381; Fidelity Ins., Trust & Safe Deposit Company’s App., 108 Pa. 492; Williams v. Brice, 201 Pa. 595.</p> <p>Where the language is clear it is inadmissible to speculate as to the intention: Wood v. Schoen, 216 Pa. 425; Baker’s Appeal, 115 Pa. 590; VanLeer v. YanLeer, 221 Pa. 195.</p> <p>Every part of a will must be given effect, and, of course, the residuary clause as well: Wood v. Schoen, 216 Pa. 425; Fuller’s Est, 225 Pa. 626; Board of Missions’ App., 91 Pa. 507; Hunter’s Estate, 6 Pa. 97.</p> <p>The will is to he construed as if made immediately before the death of the testatrix: McKinley 7, Martin, 226 Pa. 550.</p> <p>The actual intention at the daite of the will is not the material question: Boney v. Stiltz, 5 Whart. 381; Fidelity Ins., Trust & Safe Deposit Company’s App., 108 Pa. 492; Garrison v. Garrison, 29 N. J. Law 153; Matter of Hendrickson, 140 N, Y. App. Div. 388.</p> <p>All or no part of item third must be construed as of the date of testatrix’s death: Garrison v. Garrison, 29 N. J. Law 153.</p> <p>Where the language is plain, no canons of construction are applicable: Todd v. Armstrong, 213 Pa. 570; Line’s Est., 221 Pa. 374; Wood v. Schoen, 216 Pa. 425; Freeman’s Est., 220 Pa. 343; Norris’s Est., 217 Pa. 548.</p> <p>When language is plain, the court has no right to look into the state of testafc ix’e property, etc., as of the date of the will: Baker’s App., 115 Pa. 590; Sponsler’s App., 107 Pa. 95; VanLeer w VanLeer, 221 Pa. 195.</p> <p>The stock must pass under the residuary clause: Wood v. Schoen, 216 Pa. 425; Com. v. Hackett, 102 Pa. 505; Hardenbergh v. Bay, 151 XL S. 112.</p> <p>cited: Line’s Est., 221 Pa. 374; Baker’s App., 115 Pa. 590; Hunter’s Est., 6 Pa. 97; France’s Est., 75 Pa. 220; Ivins’s App., 106 Pa. 176; Porter’s App., 94 Pa. 332; Postlethwaite's App., 68 Pa. 477.</p>

<p>Appeal, No. 142, Jan. T., 1912, by plaintiffs, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1911, No. 4481, for defendants on demurrer to return to a writ of alternative mandamus in case of Thomas F. Cunningham, George F. Murray, James A. Cunningham and Joseph L. Cunningham, trading as Cunningham & Murray, v. Fred C. Dunlap, Chief of Bureau of Water, Harry A. Mackey, Director of the Department of Public Works, and John M. Walton, City Controller of the City of Philadelphia.</p> <p>Petition for writ of alternative mandamus.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>Error assigned was, inter alia, in entering judgment for the defendants.</p> <p>A municipality can by ordinance passed by a two-thirds vote and approved by the mayor, settle, adjust and compromise a claim against it, part of which is admittedly for extra work and ought to be paid: Bailey v. Philadelphia, 167 Pa. 569; Justice v. Philadelphia, 37 Pa. Superior Ct. 267; Com. v. Walton, 236 Pa. 220; Yare v. Walton, 236 Pa. 467.</p> <p>Mandamus is not the proper remedy in this case: Com. v. Rosseter, 2 Binney 360; James v. Commissioners, 13 Pa. 72; Overseers of Porter Township v. Overseers of Jersey Shore, 82 Pa. 275; Phoenix Iron Co. v. Com., 113 Pa. 563; Mercur v. Media Light, Etc., Co., 19 Pa. Superior Ct. 519; Douglas v. McLean, 25 Pa. Superior Ct. 9; Com. v. James, 214 Pa. 319; Com. v. Kessler, 222 Pa. 32; Com. v. Philadelphia, 176 Pa. 588; Kensington Electric Co. v. Philadelphia, 187 Pa. 446.</p> <p>The ordinance is an unlawful interference with the executive discretion of the director of the department of public works. Mandamus will not lie to control such discretion: Com. v. Warwick, 185 Pa. 623; Kensington Electric Co. v. Philadelphia, 187 Pa. 446; Com. v. Jenks, 154 Pa. 368; Com. v. Philadelphia, 176 Pa. 588; Dechert v. Com., 113 Pa. 229; Runkle v. Com., 97 Pa. 328; Miller v. Henderson, 212 Pa. 263; Cheetham v. McCormick, 178 Pa. 186; Com. v. Huttel, 4 Pa. Superior Ct. 95; Miller v. Canal Commr’s, 21 Pa. 23; Schlaudecker v. Marshall, 72 Pa. 200; Com. v. Cochran, 6 Binney 456.</p> <p>There was no moral obligation as a basis for the ordinance : O’Rourke v. Philadelphia, 211 Pa. 79; Dechert v. Com., 113 Pa. 229; Runkle v. Com., 97 Pa. 328.</p>

<p>Mechanics’ liens — Statutes—Obscure terms — Interpretation— Repealed statutes.</p> <p>1. Where the meaning o£ a term used in a statute is obscure and cannot be gathered from the text of the statute, and no definition thereof exists in general legal terminology, the one possible way of ascertaining the meaning of such term is to resort to the earlier and repealed statutes in pari materia, wherein it is used.</p> <p>Mechanics’ liens — Act of June 4, 1901, Sec. 12, P. L. 431— Words and phrases — Meaning of "apportioned claim” — Act of March 80,1881, Sec. 4, P. L. 24% — Adjoining buildings.</p> <p>2. By the term “apportioned claim” as used in the Mechanics’ Lien Act of June 4,1901, Section 12, P. L. 431, providing that “no apportioned claim shall hereafter be allowed, but separate claims, with the amount due, determined by apportionment, may be filed ......,” is meant a claim which under the Act of March 30, 1831, Section 4, P. L. 242, should be filed against several adjoining buildings, wherein the claimant apportioned the whole sum claimed between the several buildings, so that they could be severally made answerable for the apportioned charge, each in its own fixed proportion.</p> <p>3. The omission from Section 12, of the Act of June 4, P. L. 1901, of a requirement that houses against which such separate apportioned claims shall be filed, shall be adjoining, does not indicate the intention of the legislature to allow separate apportioned claims to be filed against buildings not adjoining; the act attempts no definition of apportioned claims, and adopting the meaning of what for many years had been understood as “apportioned claims,”' it is apparent that the legislature meant to allow separate claims, with the'amount determined by apportionment only against adjoining buildings.</p>

<p>Real property — Deeds—Unopened street — Description of land as bordering on street — Vacation of street by municipal ordinance— Obstruction of street by grantor — Estoppel by deed — Equity—Injunction.</p> <p>1. A grantor of land who describes a lot conveyed as bounded by a street plotted upon, the city plan but unopened, will be estopped as against his grantee to deny the existence of the street, though the street has subsequently been vacated by a municipal ordinance, and it is immaterial whether by the conveyance, the fee to the land comprised in the street vested in the grantee, or whether it remained in the grantor.</p> <p>2. A grantor of land who describes a lot conveyed as bounded by a street plotted upon a plan made by him and duly'"recorded, impliedly covenants that he will open the street at least for the use of his grantee, where at the time of the conveyance the street has not been opened; it is immaterial in such case that the street is not then plotted upon the city plan.</p> <p>3. On a bill in equity for an injunction to restrain defendants from maintaining buildings on land which plaintiffs alleged should be kept open as a street, where it appeared that the original owner under whom plaintiffs and defendants claimed had conveyed the lot owned by plaintiffs to plaintiffs’ predecessor in title by a deed which described the lot as bounded by a street; that defendants had erected the buildings complained of on the land comprised in the street, and that the street was plotted on a plan which the owner had made and recorded previous to the conveyance, and defendant contended that the street had been plotted on a city plan and had been vacated before the conveyance, and plaintiffs contended it had been vacated after the conveyance, the court made no error in awarding the injunction, as in either case the grantor and his successors in title were estopped to deny the existence of the street as against the grantee and his successors in title.</p>

<p>School law — School code — Act of May 18, 1911, Sec. 55k, P- D-809 — Tax collector — Compensation—Discretion of school hoard— Equity — Injunction.</p> <p>1. Section 554 of the School Code of May 18, 1911, P. L. 309, providing that “in school districts of the second, third and fourth class, all school tax collectors shall be paid such commissions or compensation as may be determined by the boards of school directors,” is not to be construed as vesting in the school board arbitrary discretion to be used, m defiance of the public interest and without restraint; the exewise of reasonable discretion by the school board in the interest of the public is contemplated by the act, and where the school board abuses its discretion, a court of equity may interfere to protect the interests of the public.</p> <p>2. Upon a bill in equity filed by a taxpayer to restrain the board of school directors of a school district of the third class from paying excessive compensation to a tax collector, it appeared that the compensation of such tax collector was fixed by the defendant directors at five per cent, of the taxes collected; that of the total levy of $121,263.21 in the district the sum of $114,721.18 was paid prior to October 1,1912, up to which time the taxes were paid without the imposition of any penalty; that all these payments were received by the collector without any further work than was involved in giving public notice that on certain days he would attend at certain school houses, in attending at the times and places designated and in receiving taxes on such occasions and giving receipts for the sáme. The court found that the compensation was grossly excessive and involved an abuse of discretion on the part of the defendant directors; and restrained them, from paying a compensation of more than two per cent, upon school taxes paid to the tax collector before October 1, 1912, and ten per cent, upon such taxes as might be collected by him subsequently thereto. Held, no error.</p>

<p>Appeal, No. 389, Jan. T., 1913, by plantiffs, from order of C. P. Fayette Co., Sept. T., 1911, No. 377, sustaining demurrer to plaintiffs’ statement of claim and refusing to permit plaintiffs to amend statement of claim in case of James A. McCready, Vincent Stevens and Joseph E. Barnes, acting as Syndicate Managers, now for the use of Charles Fahr and George D. Trawin, Trustees for themselves and for Frank R. Shryock, John J. Shryock, Cyrus See, and Roland B. Thompson and Maria Thompson, executors of the last will and testament of Henry H. Thompson, deceased, v. William L. Gans and Henry B. Gang.</p> <p>Assumpsit on a contract to subscribe to an issue of bonds. Before Umbel, P. J.</p> <p>From the record it appeared that the action was brought on a contract of underwriting between three men called syndicate managers and the defendants, who by executing the contract became members of a syndicate to underwrite an issue of bonds of the Meadville and Conneaut Lake Traction Company. The statement of claim averred that the syndicate managers had notified the defendants of the acceptance of their contract, and, after the expiration of the time fixed by the contract had assessed the expenses upon all of the members of the syndicate, which expenses equalled the full amount underwritten, by reason of the failure to sell any of the bonds. To this statement a demurrer was filed on the ground that no complete copy of the underwriting agreement was attached to or contained in plaintiffs’ statement; that the underwriting agreement provided it should not be binding on any signer until total subscriptions aggregated in obligation the sum of $565,-000; that while it was alleged in the statement that the amount had been signed, the copy attached showed no signatures except those of defendants who did not subscribe the entire sum; and that the statement failed to show performance or such action by the syndicate managers under the authority contained in the contract as would sustain a right, of action.</p> <p>The court sustained the demurrer in an opinion in part as follows:</p> <p>The first and second exceptions are based on the fact that the copy of the underwriting agreement attached to the declaration does not show that it was signed by the syndicate managers, or by any subscribers other than the defendants, insisting that under the terms of the said agreement it wa® not binding nor was it such contract as would support an action nor, in fact, was it a contract at all until it was signed on the one side by the syndicate managers and on the other by sufficient subscribers to make the total of their subscriptions at least $565,000.</p> <p>Section 3 of the Act of May 25, 1887, P. L. 271, provides “The plaintiff’s declaration......shall consist of a concise statement of the plaintiff’s demand...... which......shall be accompanied by copies of all notes, contracts, book entries......if any, upon which the plaintiff’s claim is founded.”</p> <p>In interpreting this provision, our Supreme Court has held that the plaintiff’s statement must exhibit a complete cause of action in clear, express and unequivocal language: Byrne v. Hayden, 124 Pa. 170; Mink v. Shaffer, 124 Pa. 280; Gere v. Unger, 125 Pa. 644; Fritz v. Hathaway, 135 Pa. 274; Laubach v. Meyers, 147 Pa. 447; Ferguson v. Telegraph Co., 151 Pa. 211; Acme Mfg. Co. v. Reed, 181 Pa. 382.</p> <p>The copy attached must set forth the whole of the instrument: Campbell v. P. & W. Ry. Co., 137 Pa. 574; Finch v. White, 190 Pa. 86; Schofield v. Lafferty, 17 Pa. Superior Ct. 8.</p> <p>It is not competent for plaintiff to select parts of a written contract, and to claim that his action is founded on these alone, when the contract plainly contains other terms not produced by the plaintiff. If the whole contract, including the parts not copied, would support the action, plaintiffs’ case is entitled to stand, but if it would show a defense, the defendant has a right to have that appear before he is called upon to plead: Acme Mfg. Co. v. Reed, 181 Pa. 382.</p> <p>Unquestionably in this case, all of the signatures of all of the syndicate managers and all of the subscribers, with the amouiit subscribed by each, are and form a material part of the contract and, in our opinion in legal effect, the failure to file a copy with all the said signatures or names of the subscribers is the same as if the plaintiff had left out the following provision of the contract, viz: “This Underwriting Agreement shall not be obligatory upon any of the subscribers until the subscribers hereto and the allotments made hereunder by the Syndicate Managers shall amount in the aggregate to Five Hundred and Sixty-five thousand ($565,000) Dollars.” Nor, in so far as the copy of the contract required to be filed with the declaration is concerned, do we think the amendment to the declaration filed May 28, 1912, cures the defect. The part of the contract referred to last above if not complied with would show a defense and would clearly bring the case within the Acme Manufacturing Co. v. Reed, supra; we are, therefore, of opinion and hold that the copy of the underwriting agreement filed with the declaration should contain a list of all the signers to the agreement, not necessarily copies of all the agreements or counterparts signed, but one copy of all similar agreements with the names of the signers to all.</p> <p>As to the sixth exception, the averment of the declaration to the effect that the syndicate managers as well as the use plaintiffs had endeavored in good faith to sell and dispose of the stock and bonds for which the defendants and other subscribers had subscribed and had failed to sell any of the said stock and bonds, we think shows performance in that regard; but when they failed to make such sale they had, under the eighth paragraph of the underwriting agreement, other duties to perform of a nature and character equally as important in ascertaining and determining the sum required to discharge all the obligations of the syndicate and an apportionment of the same ratably upon the subscribers, and nowhere in the declaration do we find any claim or averment of the syndicate managers of action or performance of their duty in that particular. We do not think the statement above to the effect that when the syndicate managers and use plaintiffs failed to sell sufficient bonds to pay the syndicate obligations and the defendants were notified that they were liable for the full amount of their underwriting agreement is compliance or performance in that regard. This we consider* material to the extent of warranting the sustaining of this exception.</p> <p>In our opinion the additional exception filed June 18, 1912, averring no allotment of bonds to the defendants is most important and vital to plaintiffs’ claim. So far as this subscription is concerned we do not think it is straining the facts to hold that Wm. L. Gans and H. B. Gans are one party; in the above resolution of the syndicate managers allotting the bonds, the name of H. B. Gans does not appear. The resolution states that more than $565,000 were subscribed and some were rejected, the names of none who were rejected are given, the inference is convincing that it must have been the intention to reject H. B. Gans.</p> <p>The first paragraph of the declaration sets forth: “Heretofore, to wit, on or about the 30th day of April, A. I). 1906, the said James A. McCready, Vincent Stevens and Joseph E. Barnes, acting as syndicate managers, entered into an agreement in writing with the said defendants, William L. Gans and Henry B. Gans, a copy of which agreement is hereto attached, marked exhibit ‘A’ and made a part hereof; as appears by said agreement, said defendants agreed to purchase from the said syndicate managers first mortgage bonds of the Meadville and Conneaut Lake Traction Co., a Pennsylvania corporation, to the amount of $25,000, and pay for them at the rate of 90 per cent, of their face value; and the said syndicate managers agreed to deliver the said bonds to the said defendants upon the payment of the said sum of money,” etc., showing conclusively and beyond question that the transaction so far as the defendants are concerned was a joint one and that their liability, if any, was joint and it was so regarded by the syndicate managers, as well as by the use plaintiffs, which conclusion is strengthened and confirmed by the manner of their signing the underwriting agreement and all the exhibits attached to the declaration bearing on the matter.</p> <p>The following provision of the underwriting agreement, viz: “The syndicate managers shall have the right to reject or to scale down any or all subscriptions and each subscriber agrees to take such participation, not in excess of the amount set opposite his name as shall be allotted to him by the syndicate managers,” certainly could not by any possible construction be held to authorize the syndicate managers in such joint subscription to reject or eliminate one of the joint subscribers and allot the whole of their joint subscription to the other joint subscriber — thus releasing one and doubling the liability of- the other. A fortiori, if the syndicate managers attempt to make such an allotment and resolve accordingly and eliminate one of the joint subscribers, under their authority to reject as provided in the underwriting agreement, certainly thereafter they could not maintain an action against them jointly for the amount of their original joint subscription.</p> <p>So far as appears, the defendants have not waived any rights or advantages to which they may be entitled by reason of such action by the syndicate managers. The statement in the amendment to declaration that “In pursuance of such addon” (allotment by syndicate managers) “a written statement was sent to all of the subscribers, including the defendants in this case, on the 4th day of October, 1906,” does not help plaintiffs’ case, as the only action we .find by the defendants thereafter is signing a paper in January, 1909, directed to Charles Fahr, trustee, agreeing to the deposit of the bonds, etc., subject to the bondholders’ agreement and this was done with the distinct understanding that it should not affect defendants’ legal standing with reference to the underwriting agreement.</p> <p>Nor can we conclude that the statements in the agreement to the effect that so far as the subscribers are concerned it is entered into severally, nor that each subscriber shall be responsible to the full extent of his undertaking regardless of the performance or nonperformance of any other subscriber, in any way helps the plaintiffs for, as we view the matter and as it has been considered by the syndicate managers and the use plaintiffs, W. L. Gans and 11. B„ Gans are only one subscriber.</p> <p>Subsequently the plaintiff filed a petition for a rehearing and an amendment to the statement of claim.</p> <p>Thereafter the court dismissed the petition for a rehearing and refused to allow the amendment on the ground that said amendment stated a new cause of action. Plaintiffs appealed.</p> <p>Errors assigned were in sustaining the demurrer and in refusing to allow the amendment to plaintiffs’ statement of claim.</p>

<p>Criminal law — Homicide—Jury—Selection of jurors — Excusing jurors for cause — Physical disability — Conscientious scruples— Bight to impartial jury — Discretion of court.</p> <p>1. In the selection of a jury to try one accused of murder, it is not error for the court to excuse a juror because he is crippled, although the juror has not asked to be excused* where in the opinion of the court such juror is physically unable to stand the strain which would necessarily be imposed upon him in the trial of the case. Such matters are within the discretion of the trial judge.</p> <p>2. In such case, it is not an abuse of discretion on the part of the court to excuse jurors for cause on account of their having stated that they are opposed to capital punishment, though such jurors have qualified themselves under the law by stating that they could disregard their conscientious .scruples and render their verdict according to the law and the evidence. In exercising his discretion as to the fitness of a juror to serve, the trial judge has the juror before him and much latitude must be left him; and the weight to be given to the answers of a juror when examined on his voir dire is not to be determined exclusively by his words as they appear in the record. The court in the exercise of a wide discretion may conclude that such juror is not competent to enter the jury box for the purpose of rendering an impartial verdict notwithstanding his words to the contrary, and nothing short of. a palpable error will justify a reversal of a trial judge in passing upon a challenge for cause.</p> <p>3. The right to have a cause tried by an' impartiál jury does not give a right to the service of any particular individual, and where tbe full panel has not been exhausted the defendant is not prejudiced by the exclusion of jurors for cause.</p> <p>Trial — Temarles hy district attorney.</p> <p>4. A conviction of murder of the first degree will not be reversed because the district attorney made promises in his opening address of proofs which he subsequently failed to produce, where tlie trial judge has found that the district attorney did not intend to abuse his power and where a review of the whole record justified the conclusion reached by the court below that no harm was done to the defendant by the remarks complained of.</p> <p>Evidence — Tes gestee — Testimony of lay witnesses as to sanity.</p> <p>5. It is not error on a trial of one accused of murder, to permit a witness under objection to testify that she had destroyed a note which she found on the body of the deceased, there being no evidence that the defendant was present at the time, where the finding of the note was part of the res gestae of the discovery of the body of the deceased and it was proper for the Commonwealth to show why it was not produced in court, and this is especially true where the witness had previously stated, without any objection from the defense, that she had destroyed the note.</p> <p>6. The court made no error in such case in refusing to allow certain nonexpert witnesses for the defense to testify on the question of the sanity of the defendant and in permitting a number of such witnesses to testify for the Commonwealth where no proper foundation was laid for the opinion of the witnesses for the defendant, while those for the Commonwealth testified to an acquaintance with the prisoner and opportunities for observations which sufficiently qualified them for the purpose for which they were called.</p> <p>Criminal law — Murder—Insanity—Burden of proof.</p> <p>7. On the trial of one accused of murder, it was not error for the court to refuse a point for charge offered by the defendant which attempts to state the laws governing the eases of hallucinations and delusions, where there was no evidence which would have justified such an instruction.</p> <p>8. The court made no error in such case in refusing loosely drawn instructions to the effect that the accused should not be convicted if he was “laboring under mental derangement, although not constituting total insanity,” or was “so addicted to the use of cigarettes that the effect upon his mental and physical System was to poison his faculties and make him unconscious of a moral sense of right and wrong,” or in refusing to instruct that “if the jury had a reasonable doubt as to the mental responsibility of the defendant at the time of the commission of the crime, such a doubt must operate in favor of the defendant to prevent a conviction of murder of the first degree.”</p> <p>9. The court committed no error in such case in refusing an instruction to the effect that “the jury are not permitted to presume a motive for the act of the defendant or that the defendant had formed a deliberate or specific intent to take the life of the deceased, but must find these elements from the evidence,” where there was nothing approaching positivo evidence of insanity, and under the facts it was not essential that the testimony should show a motive for the killing, and especially where in his general instructions the trial judge made it plain that the presumption on all the essential elements of the crime with, which the defendant was charged should he drawn in his favor.</p>

<p>Criminal law — Indictments—Evidence—Variance—Name of defendant.</p> <p>1. Where an indictment charged the defendant with the killing of Guiseppe Visalli and from the evidence it appeared that the name of the deceased was Joe Wilson, there is a variance between the allegata and probata where there is nothing to show that Guiseppe Visalli and Joe Wilson were one and the same person, and a conviction in such case will be reversed.</p> <p>Criminal procedure — Trials—Circumstantial evidence — Identification — Inadequate charge to jury — Misleading statements in charge — Province of court and jury.</p> <p>2. At the trial of one accused of murder, a trial judge who states to the jury as a fact something which is misleading and not authorized by the evidence commits reversible error.</p> <p>3. In a murder trial resulting in a verdict of guilty of murder of the first degree, the evidence to connect the accused with the homicide was entirely circumstantial and consisted of the testimony of a young woman, who said that she had seen a man by the light of a passing engine about eleven o’clock on the night when the killing was supposed to have occurred, on a road in the neighborhood where the body was found, and that afterwards she went to the jail and saw the prisoner, and believed he was the man whom she had seen on the road, and the testimony of two persons who said that a knife which was found two months later in the river at a point some twenty-five feet from the place where the body lay, and \vhich was produced in court, looked like the knife which they had seen in possession of' the prisoner on the day of the crime. The court instructed the jury that the young woman had identified the prisoner as the man whom she had seen but did not instruct the jury as to how the evidence was to be considered and the degree of certainty which it must reach to warrant the conclusion of the identity of the prisoner with the man whom the witness had seen, and misrcicited the testimony as to the knife by stating that the witnesses had identified the knife as the one which they had seen in the prisoner’s possession. Held, that the conviction should be reversed.</p> <p>4. In such case the court interfered with the exclusive prerogative of the jury by stating that the man seen on the road by the young woman' had been identified as the prisoner and that the knife found in the river had been identified, as the knife .of the defendant.</p> <p>5. Identification is a matter of inference and the probative weight to be accorded to the testimony of witnesses who speak as to this point is exclusively for the jury, to be judged by them in the light of the evidence in the case and in the light of the evidence upon which the inference is based.</p>

<p>Appeal, No. 246, Jan. T., 1913, by defendant, from judgment of O. & T. Schuylkill Co., May S., 1913, No. 521, on verdict of guilty of murder of the first degree in case of Commonwealth v. Joseph Marcinko.</p> <p>Indictment for murder. Before Bechtel, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court charged the jury in part as follows: “You are not bound by our opinion but we tell you very frankly that we do not believe he is guilty of manslaughter, because there is no evidence in this case of any sudden heat or passion or provocation at all. Even the defendant himself does not contend that Holland did anything to him and no other witness does. There was, so far as the evidence in this case goes on both sides, absolutely nothing that happened there between this man and Holland, nothing at all. Now, that being so, either one of two things happened. Either the contention of the Commonwealth is correct that this man was angry or cross and stepped out then and stuck this knife into Holland or the contention of the defense is correct, that it was all the result of an accident when he was knocked down. One of these two stories is evidently the correct story in the case and these are the two theories on which the case is tried.” (14)</p> <p>The jury found a verdict of guilty of murder of the first degree and sentence of death was passed. Defendant appealed.</p> <p>Error assigned, among others, was (14) charge of court as above quoted.</p> <p>The record does not show reasonable grounds for the court’s statement in its charge: McClain v. Com., 110 Pa. 263; Com. v. Orr, 138 Pa. 276; Com. v. McGowan, 189 Pa. 641; Com. v. Cunningham, 232 Pa. 609.</p> <p>■ Whether or not the deceased struck the defendant immediately before the killing must be regarded as the most material evidence : Com. v. Colandro, 231 Pa. 343.</p> <p>There is nothing in this case from which a jury would have been justified in finding that the defendant committed the act in that state of mind which our Commonwealth characterizes as murder of the first degree: Com. v. Drum, 58 Pa. 9.</p> <p>The trial judge can legally express an opinion as to the weight and effect of the evidence: Com. v. Cunningham, 232 Pa. 609; Com. v. Bazmus, 210 Pa. 609; Com. v. McGowan, 189 Pa. 641; Medis v. Bentley, 216 Pa. 324; Com. v. Martin, 49 Pa. Superior Ct. 626. ■</p>

<p>Appeal, No. 281, Jan. T., 1913, by defendant, from judgment of O. & T. Fayette Co., March T., 1913, No. 29, on verdict of guilty of murder of the first degree in case of Commonwealth v. John Payne, alias John W. Paine.</p> <p>Indictment for murder. Before Umbel, P. J.</p> <p>As to the law of self defense the court charged the jury as follows;</p> <p>“The law of self defense is a law of necessity, and that necessity must be real or bear all the semblance of reality, and appear to admit of no other alternative before the taking of life would be justifiable, or excusable, and the burden lies on the prisoner to prove that there was an actual necessity for taking life, or a seeming necessity so reasonably apparent and convincing to him as to lead him to believe that he could only defend himself by taking the life of his assailant. Ordinarily, if a man accused of murder can flee it is his duty to do so. Justice Agnew of our Supreme Court, in speaking at one time of self defense, said: ‘Where it comes to .a question whether one man should flee or another, should live, the law decides that the former shall rather flee than that the latter shall die.’ In this case, however, you will keep in mind the defendant was in his own house, and, if he were assailed in the manner he claims, that principle of law would not apply with the same force as if the occurrence had been somewhere else. Yet the burden is on the defendant to establish his defense by a fair preponderance of the credible testimony, to the effect that the defendant was warranted in concluding that there was reasonable apprehension on his part that the deceased was about to inflict upon him great bodily harm or take his life.”</p> <p>The court affirmed the defendant’s first, second, third and fifth points, which were as follows:</p> <p>First. If the jury find from the testimony that James Thomas, the deceased, followed the defendant, John Payne, in his own house through the room designated on Commonwealth’s Exhibit 1 as No. 1, through No. 2 into No. 3 and there engaged in a scuffle with the defendant, John Payne; that, during the said scuffle, the said Thomas drew a revolver and fired a shot at the said defendant; that the drawing of the revolver and the firing of the shot as aforesaid caused the defendant, John Payne, to apprehend tha,t he was in danger of having inflicted upon Ids person serious bodily harm, or that he would be killed by the said James Thomas, and that, acting under the said apprehension of death or serious bodily harm, he struck the blow that resulted in the death of the said Thomas, then the defendant would be regarded as acting in self defense as defined by the law of Pennsylvania, and your verdict should be not guilty.</p> <p>■ . Second. If the jury find from the testimony that the deceased, James Thomas, followed the defendant through rooms 1, 2 and into 3 as aforesaid, and there engaged in a scuffle with the defendant and, in the course of such scuffle, iche said Thomas drew a revolver and', fired a shot and that such shot took effect in' the shoulder of the defendant, producing the wound as exhibited to the jury, and the defendant, from the conduct of tbe said Thomas, apprehended that he was in danger of death or serious bodily harm and struck the blow that resulted in the death of James Thomas while so apprehending danger of death or serious bodily harm, then the defendant in striking the blow as aforesaid was acting in self defense and your verdict should be not guilty.</p> <p>Third. If the jury find from the testimony that the said James Thomas, having in his possession a knife, followed the defendant through rooms 1 and 2 and into 3 as aforesaid, quarreling as they passed through the said rooms, and in the said room No. 3 entered into a scuffle with the defendant, and if the jury further find that these circumstances occurred subsequent to a request by the defendant to the said Thomas to go away from his premises, and if the jury further find that the said James Thomas, during the scuffle in room No. 3, drew a weapon with the intention of inflicting upon the defendant serious bodily harm, in such case it would not be necessary, under the law, for the defendant to retreat to the wall before striking a blow which might result in the death of the defendant, and if, without retreating as aforesaid, the defendant did strike the blow under the circumstances as aforesaid, which resulted in the death of the said Thomas, then the defendant would still be acting in self defense under the law and your verdict should be not guilty.</p> <p>Fifth. If the jury find from the testimony that the defendant, John Payne, struck the blow which resulted in the death of James Thomas, either because of anger caused by an assault, or because of terror caused by his knowledge of the threats directed toward him by the said James Thomas and the attitude of the said Thomas during the scuffle in room No. 3, just prior to the inflicting of the fatal blow, then the defendant cannot be convicted of any higher grade of crime than that of voluntary manslaughter.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The jury found a verdict of guilty of murder of the first degree, upon which sentence of death was passed. Defendant appealed.</p> <p>Errors assigned were the refusal of the trial judge to strike from the indictment an allegation that the defendant had been convicted of rape, various other rulings of the trial judge and various instructions to the jury.</p> <p>The refusal of the court to strike from the indictment the record of defendant’s conviction upon a charge of rape was erroneous: Com. v.. Hagan, 10 Pa. C. C. R. 22; Kane v. Com., 109 Pa. 541.</p> <p>The court failed to charge the jury adequately upon the law of self defense: Meyers v. Com., 83 Pa. 131; Com. v. Shults, 221 Pa. 466; Potter v. State, 1 S. W. Repr. 614.</p> <p>The record of defendant’s conviction of rape was properly included in the indictment: Kane v. Com., 109 Pa. 541; Halderman’s Case, 53 Pa. Superior Ct. 554; Rauch v. Com., 78 Pa. 490; Com. v. Racco, 225 Pa. 113.</p> <p>The charge on the law of self-defense taken in connection with the. affirmance of defendant’s points was adequate : Com. v. Caraffa, 222 Pa. 297; Com. v. Richmond, 6 W. N. C. 431; Com. v. Weathers, 7 Kulp 1; Com. v. Lenox, 3 Brewster 249; Kimbrell v. State, 75 S. E. Repr. 252; Tillman v. State, 70 S. E. Repr. 876; Spangler v. State, 61 S. W. Repr. 314; Askew v. State, 83 S. W. Repr. 706; Williams v. State, 48 S. E. Repr. 368; People v. Martell, 33 N. E. Eiepr. 838; State v. Ussery, 24 SI E. Repr. 414.</p>

Appeal, No. 247, Jan. T. 1913, by defendant, from judgment of O. & T. Schuylkill Co., March T., 1913, No. 418, of guilty of murder of the first degree, entered on a plea of guilty in case of Commonwealth v. John Simanowicz. Indictment for murder. Before Koch, J. The opinion of the Supreme Court states the facts. In a preliminary proceeding to determine the sanity of the prisoner the jury found the prisoner sane.

<p>Criminal law — Procedu: ■■ — Jurors—Challenge for cause — Judi-. cial discretion.</p> <p>1. In exercising his discretion as to tbe fitness of a juror to serve in a trial for murder, tbe trial judge has tbe juror before bim and much latitude must be left to bim; and tbe weight to be given to tbe answers of the juror when examined on bis voir dire is not to be determined exclusively by tbe words as they appear in tbe printed record. They are first to be weighed by the trial judge, who, in tbe exercise of a vide discretion, may conclude that tbe juror is not competent to enter a jury box for tbe purpose of rendering an impartial verdict, notwithstanding bis words to tbe contrary; and nothing short of palpable error will warrant a reversal.</p> <p>2. Where on tbe trial, of one accused of murder a juror in answer to a question by the court, stated that be bad formed an opinion as to tbe guilt ore innocence of tbe accused, but that be could and would render a verdict according to tbe evidence if sworn as a juror in the case; but on cross-examination by the district attorney stated that he would take bis formed opinion with bim into tbe jury box and would keep it until be bad beard evidence to contradict or offset it and was thereupon challenged for cause and excused, a conviction of murder of the first degree and sentence of death should not be reversed. . r</p> <p>3. The court did not err in such case in excusing a juror challenged by the Commonwealth because he stated that “circumstantial evidence could not be strong enough for me to convict a man of murder of the first degree.”</p> <p>Practice, Supreme Court — Assignments of error — Defective assignments.</p> <p>4. Assignments of 'error complaining of alleged improper remarks by the district attorney, of the refusal of the court to withdraw a juror after such remarks were made, and of its refusal to instruct the jury to disregard them, will not be considered where it does not appear from the record what the remarks were or that any request was made for the withdrawal of a juror.</p> <p>Murder — Insanity as a defense — Burden of proof — Degree of proof required — Charge to jury.</p> <p>5. Sanity is the normal condition of man and where insanity is set up as a defense to an act, which otherwise would be a crime, the burden rests upon the prisoner to prove his abnormal condition.</p> <p>6. In a trial for murder where the defense is insanity it is not error for the trial judge to charge that “with this burden of proof upon the defendant, evidence which creates only a mere doubt, or a reasonable doubt, as to his sanity, is insufficient to justify his acquittal. The jury must be satisfied by fairly prepondérating evidence.”</p> <p>7. In such a case it was not error for the trial judge to refer in his charge to his notes of testimony, where he distinctly told the jury that they were to be guided by their own recollection of it, and not by his references, if he erred in quoting it.</p>

<p>Appeal, No. 214, Jan. T., 1913, by defendant, from judgment of O. & T. Clearfield Co., Dec. T., 1912, No. 16, on verdict of guilty of murder of the first degree in case of Commonwealth v. John O. Keeler.</p> <p>Indictment for murder. Before Smith, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The jury found a verdict of guilty of murder of the first degree upon which sentence of death was passed.</p> <p>Errors assigned were various rulings of the trial judge, and various instructions to the jury.</p>

<p>Negligence — Railroads—-bellow servants — Act of April 4, 1868, P. L. 58 — Work unconnected with railroad business.</p> <p>1. One test of the application of the Act of April 4, 1868, P. L. 58, providing that persons sustaining personal injuries while lawfully engaged or employed on or about premises of a railroad company, shall have only such rights to recover damages as they would have if they were employe ss of such company, is the nature of the business of the person Injured at the time of the injury. If it is business connected with, the railroad in the sense that it is ordinarily the duty of railroad employees, then while the party is engaged at it the statute treats him as a quasi employee, and puts his rights on the same basis. If, however, the work has no relation to railroad work as such, and is connected with the railroad only by irrelevant and immaterial circumstances of locality, the case is not within the statute at all.</p> <p>2. Plaintiff’s husband was employed by a coal company which owned a side track leading from its repair yards to the tracks of the defendant railroad company. The defendant company had a limited permissive use of such side track. Plaintiff’s decedent was a repair man, and when hu received the injury which caused his death was engaged at his usual occupation as an employee of the coal company, in repairing its car, which was on its track in its own yard. The accident was caused by the act of the servants of the defendant company In negligently pushing another ear against the one under which the deceased was then working. Held, the work of the deceased wnc not railroad work, had no relation to the railroad company, and the Act of April 4, 1868, P. L. 58, did not apply so as to make him t, fellow servant of the employees of the defendant railroad company, and plaintiff wag entitled to recover damages for his death.</p>

<p>Negligence — Railroads—Fedestrian—Contributory negligence— Choice of ways — Case for jury.</p> <p>1. If the danger of the way he chooses is imminent, a pedestrian at a grade crossing may be said as a matter of law to be negligent in not .taking a safra1 way which is open to him, but he is under no duty to leave a public highway, if, after he exercises due care, he finds no cause to apprehend danger.</p> <p>2. Plaintiffs husband ivas killed in a grade crossing accident, where defendant maintained four tracks crossing a public highway in a borough; at one side of the crossing the defendant maintained a foot bridge across its tracks and twenty feet above them, which was used by it fo:.1 signals and by pedestrians who chose to use it as a passageway. Wfien deceased reached the crossing it was obstructed by a moving freight train, and he stood several minutes near the tracks and within a few feet of the steps that lead to the overhead bridge before starting to cross; he was struck on the third track by a train running sixty miles an hour through a dense fog and which appiro.iched without signals. Held, the question of defendant’s negligence and the deceased’s contributory negligence were for the jury, and a verdict and judgment for plaintiff was sustained.</p>

<p>Negligence — Contributory negligence — Railroads—Grade crossings — “Stop, look and lisien” — Gase for jury.</p> <p>In an action against a, railroad company to recover damages for personal injuries sustain:: c. at a grade crossing, the case is for the jury where the evidence ibr the plaintiff, although contradicted, tended to show that the plaintiff and his driver approached in an empty hay wagon a five -¡rack grade crossing of the defendant company, that they stopped, looked and listened; that the view to the left was obstructed by cars- and locomotives standing on the first two tracks; that an employee of the defendant signaled them to cross; that they then drove slowly over the crossing without hearing or seeing anythins, and were caught by an engine operated on the third track, and approaching from the left.</p>

<p>Married women — Wife surety for her husband — Judgments— Opening of judgments — Presumptions—Act of June 3, 1887, P. L. 338.</p> <p>1. A judgment note executed by a married woman .after the Act of June 3,1887, P. L. 332, is presumably a valid obligation and the burden of showing its invalidity is upon the obligor of the note.</p> <p>2. On a rule to open a confessed judgment entered against a married woman on a judgment note executed by the petitioner and her husband, where the petitioner alleged that she had signed the note as surety for her husband, an order discharging the rule will be affirmed, where it appears that the judgment has been of record twenty-two years, had been four times revived before the petition for the rule to open the judgment was presented, and that the money which the note was given to secure was used by the pe^ titioner and her husband for the improvement of their real estate, the title to which they held as tenants by the entireties.</p>

Appeal, No. 2, Oct. T., 1913, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1910, No. 210, on verdict for plaintiff in case of L. B. Croll and Alex. Montgomery v. James McCullough, Jr. Assumpsit to recover commissions on the sale of real estate. Before Williams, P. J. The facts appear ¡by the opinion of the Supreme Court. Verdict for plaintiff for $3,175.75 and judgment thereon. .Defendant appealed.

<p>Appeal, No. 213, Oct. T., 1913, by defendant, from judgment of O. P. Westmoreland Co., May T., 1911, No. 716, on verdict for plaintiff in case of John Uhlman v. E. J. Sullivan.</p> <p>Assumpsit on a contract under seal. Before Doty, P. J.</p> <p>The contract was as follows:</p> <p>Articles of Agreement, made and concluded this 15th day of March, A. D. 1911, between John Uhlman, of Pricedale, County of Westmoreland and State of Pennsylvania, party of the first part, and J. E. Sullivan, of Irwin, County and State aforesaid, party of the second part, as follows:</p> <p>That John Uhlman, said party of the first part, agrees to sell to E. J. Sullivan, said party of the second part, all the hotel furnishings, consisting of beds, bedding, chairs, dressers, carpets, kitchen utensils, dishes, tables, and stock of liquors to the amount of Five Hundred ($500.00) Dollars, and all other furnishings that are in said hotel, reserving, however, the furnishings in ......rooms and personal effects of the said John Uhlman and his family, an itemized list of said furnishings that are included in said sale are attached hereto, and made a part of this agreement, for the total consideration of Twelve Thousand Five Hundred ($12,500.00) Dollars, Five Hundred ($500.00) Dollars to be paid on the signing of this agreement, and the balance of Twelve Thousand ($12,000.00) Dollars to be paid on the transfer of said license of said hotel, which is situate in Price-dale, Bostraver Township, Westmoreland County, Pennsylvania, and known as the Pricedale Hotel.</p> <p>It is further agreed at the time the transfer is made there is to be five hundred ($500.00) dollars worth of liquors, at wholesale price, in said hotel, and if the party of the first part fails to have that amount, he is to give the party of the second part credit on the amount of the purchase price. And if the party of the first part has over and above five hundred ($500.00) dollars’ worth of liquors, the party of 11 io second part is to pay the difference-over and above iiie purchase price.</p> <p>It is further agreed that if said transfer is made, said party of the firet part is to select one man, the party of the second part one man, and the two thus chosen are to select flu; third party, and the said three men are to go over su d stock of liquors and appraise same at wholesale prices, said appraisement to be final to all parties concerned.</p> <p>It is further agreed that both parties are to use their best efforts to have ¡mid transfer made at the regular term of License-Coux 1, 1911, in said county, or as soon thereafter as the court ¡sees fit. And it is further agreed that if the party of the second part fails to use his best efforts for the said transfer, he shall forfeit the five hundred ($500.00) dollars, paid, and in case said transfer is not made aftex id'll parties have fulfilled their part of this agreement, sain party of the first part is to return the said five hurt lxed ($500.00) dollars to the said party of the second- part.</p> <p>It is also furthex agreed that if said transfe is made, the said party of the first part is to furnish an indemnified bond to the amount of three thousand dollars to the said pairtj of the second part as a guarantee that the premise,'! sold are clear from all indebtedness.</p> <p>And now for the tro and faithful performance of the several agreements aforesaid, the parties aforesaid do bind themselves, their heirs, executors and administrators each to the other, his executors and administrators.</p> <p>In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.</p> <p>John Uhlman, (Seal).</p> <p>E. J. Sullivan. (Seal).</p> <p>Witness:</p> <p>Henry Lewis.</p> <p>A. N. Shuster.</p> <p>Verdict for plaintiff for $4,500 and judgment thereon. On motion for judgment non obstante veredicto, Doty, P. J., filed the following opinion:</p> <p>The case at this stage involves one question only. It is conceded by counsel for defendant that, if the paper sued on be construed as an agreement on his part to purchase, there is no other reason for granting a new trial or for judgment non obstante veredicto.</p> <p>The paper has all the ear marks of a contract and none of the characteristics of an option. It begins and ends in about the usual way; it recites that the agreement was made and concluded 15th March, 1911; it binds the parties thereto, their heirs, executors and administrators; it provides distinctly what each party shall do in order to carry out the contract; it contains no intimation that a mere offer is made to the defendant; it provides for the payment of hand money and the balance on the transfer of the license by the court; it stipulates that the parties are to use their best efforts to have said transfer made and the instrument is signed and sealed by both parties. There is no uncertainty about the transferee of the license. That transfer, if made, is to be to E. J. Sullivan, the defendant. The balance of the purchase money is to be paid when the license is transferred. And it seems to necessarily follow that the payment of such balance was agreed to be paid by the defendant.</p> <p>It is not necessary for the promise to pay to be expressly set forth. The contract is to he construed as a whole. Thus we .find in 2 Page on Contracts, Sec. 1118: “Terms which can be inferred from a consideration of the entire instrument are as much a part of the contract as if exprcscly set forth therein...... Although the promise idled upon, as a consideration may not be expressly stated in any clause of the contract, still if it appears lion the entire contract that such promise is intended, it will be as binding and as much a valuable consideration as though it were expressly stated. Thus a promise to pay for realty agreed to he conveyed, or to permit the use of certain realty may he implied from the entire contract.” The principle will he found enforced Lawler v., Murphy, 20 Atl. Repr. 457.</p> <p>The whole contention of the defendant is based on the fact that he does not in the agreement distinctly promise to pay. Bu t inch promise is necessarily implied and having entered in .to the agreement he is in good faith bound by its terms.</p> <p>That the instrument has none of the characteristics of an option is evident if we follow McMillan v. Philadelphia Company, 15© Pa. 142, wherein it is said in the opinion that:</p> <p>“The distinction between an option and a contract of sale or lease is lacead and plain.. An option is an unaccepted offer. It states the terms and conditions on which the owner :! • willing to sell or lease his land, if the holder elects to accept them within the time limited. If the holder does so elect he must give notice to the other party, and the accepted offer thereupon becomes a valid and binding contract. If an acceptance is not made witbin tiie time fixed the owner is no longer hound by his offer and the option is at an end. A contract of sale or lease; lixee definitely the relative rights and obligations of both parties at the time of its execution. The offer and the acceptance are concurrent, since the minds of the contracting parties meet in the terms of the agreement.”</p> <p>The contention that the instrument sued on is a mere option and not a contract of sale seems to be an after thought and an excuse for non-compliance with its terms. The defendant prior to suit regarded and treated the instrument as a contract of sale; he paid five hundred dollars on account of the purchase money; he filed a petition in court for a transfer; he likewise filed an affidavit setting forth, inter alia, that he had purchased the lease, furniture, fixtures, etc., in the Pricedale House from John Uhlman subject to the transfer of the license. The license was transferred. The plaintiff, it seems, did all the contract obligated him to do. The defendant complied in every respect with the terms of the contract until after he had secured a transfer of the license. Even then he made a move to take possession, but refused when he ascertained that a third license had been granted in the village of Pricedale. He made no complaint of failure on part of the plaintiff and his only grievance was that the court granted a third license, which action did not meet with his approval.</p> <p>If the instrument is an option, when was the offer to be accepted or declined? There is no intimation in the paper itself as to the time of acceptance. Even if an option, it would appear too late to decline after the transfer of the license and after such silence had put the plaintiff to inconvenience and expense. Some incidental questions, might be worthy of consideration but without serving any good purpose as counsel for defendant frankly admit that if the instrument sued on is not an option there is nothing else to complain of in the trial of the case.</p> <p>The court denied the motion. Defendant appealed.</p> <p>Errors assigned were various instructions to the jury, the refusal of the court to direct a verdict for defendant, and to enter judgment for defendant non obstante veredicto.</p>

<p>Contracts — Sales—Condition sales — Case for jury.</p> <p>In an action to recover the price of a traction engine and two trucks sold and delivered to the defendant, where plaintiff claimed that the sale wat. for cash without conditions, and defendant contended that pla ntifi at the time of sale had guaranteed that the engine and trucks would do the work for which defendant desired them, and that defendant could test them and should pay for them only if found satisfactory, aud that they were tested and found unsatisfactory and worthless, and that plaintiff was promptly notified of that fact, the case was held to he for the jury, and a verdict and judgment for the plaintiff was sustained.</p>

<p>Real estate — Agreement of sale — Covenant to convey free from encumbrances — Land subject to mining rights — Recovery of hand money.</p> <p>When a vendor has agreed in writing to convey certain real estate in fee simple free from all encumbrances, the vendee is not required to accept the property where the coal under the land and the right to mine same had been sold by a prior owner, and can recover back hand money paid to the vendor upon the execution of the agreement.</p>

Appeal, No. 265, Oct. T., 1913, by defendant, from judgment of O. P. Lawrence Co., June T., 1910, No. 29, on verdict for plaintiffs in case of William Friday, Bose A. Beeve, A. B. Yogan and Charles D. Yogan v. David M. Liebendorfer. Ejectment for recovery of lands. Before Potter, P. J. The facts appear in the opinion of the Supreme Court. Error assigned, was, inter alia, in giving binding instructions for plaintiffs.

Appeal, No. 79, Oct. T., 1913, by defendant, from judgment of C. P. No. 4, Allegheny Co., Fourth Term, 1908, No. 938, on verdict for plaintiff in case of A. B. Mayer, M. B. Mayer, F. B. Mayer and L. B. Mayer, partners doing business as Mayer Sons & Company, v. B. C. Wilson and B. F. Shreffler, late partners doing business as B. C. Wilson & Company. Assumpsit for liquors sold and delivered.

<p>Appeal, No. 76, October</p> <p>Term, 1913, by plaintiff, from decree of O. P. Allegheny Co., June Term, 1912, Docket “A,” No. 2085, dismissing bill in equity in the case of Sarah McHendry y. Ella M. Shaffer, formerly Ella M. McCutcheon, Maurice H. Shaffer, her husband, and Susan Morrison and Mollie H, Tucker.</p> <p>Bill in equity to declare trust, restrain eviction proceedings and for an accounting.</p> <p>In the bill the complainant alleged that she conveyed certain real estate to the defendant, Ella M. Mc-Cutcheon, upon certain trusts; that said defendant, in violation of her duty as trustee, had attempted to evict the plaintiff from a portion of said premises and she prayed that these proceedings be restrained and that a decree be entered declaring the trust and for an accounting.</p> <p>In the answer the alleged trust was denied but the attempt to dispossess the plaintiff was admitted. It was alleged that the proceeding was entirely lawful.</p> <p>The following is an epitome of the facts found by SWEAHINGEN, J.:</p> <p>By conveyance dated March 29, 1910, and duly recorded, Sarah McHendry, the complainant, became the owner of two lots in the Twentieth ward of the City of Pittsburgh, subject to the payment of a mortgage held by the United Securities Life Insurance and Trust Company. This land was improved by having located thereon a three-story brick apartment house, consisting of six apartments. Complainant also gave a mortgage to Susan W. Morrison, one of the defendants, and another to Ella M. McCutcheon, also a defendant, and subsequently had certain judgments entered against her by other parties. By deed dated September 16,1910, Sarah McHendry and her husband conveyed the property to Ella M. McCutcheon, subject to the mortgage of the United Securities Life Insurance and Trust Company. Ella M. McCutcheon, now Ella M. Shaffer, entered into possession of the premises and Sarah McHendry and her family continued to occupy the apartment of the apartment house which she was then occupying. She never paid any rent for the apartment. Ella M. Shaffer, prior to the conveyance, through her sister, Mollie H. Tucker, made certain payments, including payments of installments on the United Securities Life Insurance and Trust Company mortgage, payments of certain county and city taxes against the property and interest on the other mortgage. On August 3, 1911, Ella M. Shaffer and her husband gave a mortgage to the Commonwealth Trust Company of Pittsburgh and had the mortgages of the United Securities Life Insurance and Trust Company and Susan W. Morrison and Ella M. McCutcheon satisfied of record, and subsequently the judgments that had been entered against Sarah Mc-Hendry were satisfied. On September 19,1911, Ella M. Shaffer gave her bond and mortgage to Mollie H. Tucker and Susan W. Morrison in payment of certain moneys due to them, the indebtedness of Sarah McHendry to Susan W. Morrison and Ella M. McCutcheon, secured by the mortgages hereinbefore mentioned, being included in the said mortgage, as were also the heretofore mentioned advancements made by Ella M. Shaffer. On April 29, 1912, Ella M. Shaffer notified Sarah Mc-Hendry to deliver possession of the apartment she was occupying and on May 9, 1912, Ella M. Shaffer filed a complaint before an alderman alleging a license to said Saran McHendry for the occupation of the apartment for an indeterminate period. The summons was issued by the alderman which was duly served, whereupon the present bill was filed and a preliminary injunction was issued. The contention of the complainant was that the property had been conveyed to Ella M. Shaffer only as security for certain indebtednesses with the understanding that she would hold the property for the complainant until such time as the complainant could make sale thereof, or if the property were not sooner sold, until such time as the rents should be sufficient to pay the indebtedness.</p> <p>There was no averment that this agreement was in writing and no written defeasance was offered at the trial, nothing but oral proof being submitted. There were no express averments in the bill that any artifice or deception was practiced on the complainant when she executed the conveyance and the testimony clearly showed that no deed or declaration was intended to be made to the complainant contemporaneous with the delivery of the deed. The utmost to be inferred from the testimony was a parol agreement that a deed or declaration would be subsequently made stipulating that the property should be held in trust and should be reconveyed at some uncertain time. It did not appear that the alleged agreement was made with defendant herself but with one whom plaintiff contended was the defendant’s agent; but no written employment was shown and it was not shown that such agent had any power to make a bargain for her with respect to the property; and he did not execute any written agreement with the complainant.</p> <p>The court reached the following</p> <p>CONCLUSIONS OF LAW:</p> <p>First. The deed from the complainant and her husband to Ella M. McCutcheon, dated September 16,1910, is absolute in form. It cannot be reduced to a mortgage of the premises except by proof of a written agreement signed and delivered by Ella M. McCutcheon that the conveyance was but as security for a debt. No such written defeasance was submitted in evidence.</p> <p>Second. The trusts upon which the complainant alleged Ella M. McCutcheon took the title to the premises in question and holds the same, are express trusts and they could only be proved by writing. No such evidence was offered.</p> <p>Third. It was not averred or shown that Ella M. Mc-Cutcheon obtained the conveyance from the complainant by any artifice, trick or fraud and therefore no trust arose by implication or construction of law in favor of the complainant.</p> <p>Fourth. The injunction heretofore issued restraining the defendants from proceeding with the suit instituted before Alderman James Y. McMasters, should be dissolved.</p> <p>Fifth. The bill filed by the complainant should be dismissed at her costs.</p> <p>Error assigned, among others, was the decree of the court dismissing the bill.</p>

<p>Appeals, Nos. 96 and 97, Oct. T., 1913, by plaintiff, from order of O. P. Allegheny Co., Dec. T., 1911, Nos. 805 and 806, sustaining demurrer to statement of claim in cases of George Hettrick Bonner v. Doctor Theodore Diller, and George Hettrick Bonner v. Doctor George Schmeltz.</p> <p>Trespass for alleged disclosure of professional secrets by a physician.</p> <p>The court sustained a demurrer to plaintiff’s statement of claim in each case, but no judgment was entered for defendant. Plaintiff then moved for leave to amend his statements of claim and the court denied the motion. Plaintiff appealed.</p> <p>Errors assigned, among others, were in sustaining the demurrer and in refusing to allow the amendments.</p>

<p>Constitutional law — Courts—Courts of Philadelphia County— Consolidation — Act of June 11,1918, P. L. 469.</p> <p>1. The Act of June 11, 1913, P. L. 469, consolidating the five Courts of Common Pleas of Philadelphia County into one court is unconstitutional.</p> <p>2. Under Sections 4 and 6, of Article V, of the Constitution, the legislature has power to change the jurisdiction and powers of Courts of Common Pleas of Philadelphia County, and may also change the courts themselves, as specifically set forth in Section 6 of Article V, by increasing their number or increasing the number .of their judges, but is without authority to destroy the Courts of Common Pleas so established in Philadelphia County by consolidating them into one court.</p>

<p>Appeal, No. 118, Oct. T., 1913, by defendants, from judgment of C. P. Allegheny Co., Oct. T., 19.12, Docket B, No. 3194, for plaintiff, for insufficiency of affidavit of defense in case of Brieck Brothers Company v. John Baziotes and Peter Antonoplos.</p> <p>Assumpsit to recover balance alleged to be due on building contract. Buie for judgment for want of a sufficient affidavit of defense. Ford,. J., filed the following opinion:</p> <p>This is a rule for judgment for a part of the plaintiff’s claim for want of sufficient affidavit of defense.</p> <p>By agreement dated October, 1911, plaintiff agreed to erect a theatre building on a lot owned by the defendants, in consideration whereof defendants agreed to pay the sum of f>13,700. Thereafter the plaintiff and the defendants entered into parol agreements whereby plaintiff agreed to do certain extra work and furnish certain extra materials in and about the erection of the building. The action is for the balance alleged to be due on the original and parol agreements.</p> <p>In their original and supplementary affidavits of defense, the defendants claim a number of credits.</p> <p>The plaintiff alleges that certain of the credits are not sufficiently pleaded. We will consider the items in the order specified in the rule:</p> <p>1. The plaintiff avers that plaintiff and defendants entered into a further verbal agreement whereby defendants agreed to pay plaintiff for any extra work done, the cost of the material and labor of such extra work and in addition a commission of ten per centum on said cost. In the affidavits of defense there is no denial of this contract or of its terms, nor is there any denial that the work done and materials furnished in pursuance with the agreement did not cost the plaintiff the amount charged in the statement. The defendants’ averment, that the plaintiff’s statement for actual cost was in many respects unreasonable, excessive and exceeded the market value of labor and materials in vogue at the time of the performance of the work, is not responsive to plaintiff’s claim.</p> <p>2. The defendants allege that plaintiff neglected to have the building properly closed and heated, so that the plaster would adhere and be solid and substantial, but there is no averment that the material used was of an inferior quality, nor that the work was done in an unworkmanlike manner, nor in what respects the plaintiff was negligent in not enclosing and heating the building.</p> <p>3. Defendants claim that the excavation work in the cellar lacks sixteen inches in depth. The specifications provide that the cellar under the rear of the building shall be excavated as shown, and where the cellar is not excavated the excavation for columns and walls shall be of sufficient depth to properly lay the footings.- The affidavit of defense does not set forth to what extent the excavation lacks in depth, whether under the whole or a part of the building.</p> <p>4. The defendants claim that the plumbing as per Chisholm’s statement, being Exhibit D annexed to plaintiff’s statement, contains items that are a part of and are included in the original contract, but fail to specify or point out the items claimed to have been required by the original contract. The charge for the extra plumbing work is specifically set out in plaintiff’s statement, and there is no reason assigned by the defendants why they cannot now determine what are the items included in the original contract. The averment is vague and indefinite.</p> <p>5. The defendants further allege that a number of subcontractors have made demands upon them by orders from the plaintiff for material furnished in the erection and construction of the building and claim credit for $3,352.26, the total of the orders, but there is no averment that the subcontractors filed liens or gave notice of an intention to file liens, nor is it averred that defendants accepted or agreed to pay the orders, or that they are under any legal obligation to make payment.</p> <p>We are, therefore, of opinion, that the plaintiff is entitled to judgment for the items as to which the affidavit is insufficient.</p> <p>The rule for judgment was subsequently made absolute and judgment was entered in favor of the plaintiff for $5,737.05. Defendant appealed.</p> <p>Error assigned, inter alia, was in adjudging the affidavit of defense insufficient as to that portion set forth in the opinion.</p>

<p>Contracts — Assumpsit—Set-off—Award of arbitrators — Fraud in procuring award — Immaterial evidence.</p> <p>In an action of assumpsit for goods sold and delivered, defendant sought to set-off a sum which had been awarded him in another dispute with plaintiff, by a board of arbitrators selected under the rules of a grain and flour exchange to which both parties had subscribed. It appeared that the award had been reversed by a committee having authority to hear and determine appeals from the board of arbitrators. Defendant offered evidence that plaintiff had been expelled from the exchange by the board of managers for fraud and collusion in securing the reversal of the award. It was admitted by defendant that the board of managers had no authority to interfere with the decisions of the committee which had reversed the award. The court excluded the evidence as incompetent to show that the reversal of the award had been obtained by collusion and fraud, and directed a verdict for plaintiff upon which judgment was entered. Held, no error.</p>

<p>Negligence — Street railways — Collision—Private crossing — Case for jury — Charge of court.</p> <p>1. The high degree of care as to signalling and speed required of an electric railway at a public crossing is not always required at a private crossing, where the danger of injury is less, but the duty of care does not rest wholly upon a person using the crossing and the railway company is bound to the exercise of care commensurate with the danger of the particular situation.</p> <p>2. In an action of trespass to recover damages from a street railway company for personal injuries sustained by plaintiff in consequence of a collision between a trolley car and plaintiff’s wagon, it appeared that plaintiff on approaching by a private road the double track of defendant, stopped, looked and listened for a car; that his son got down from the wagon, crossed the track to a place from which he could see 600 feet and not seeing or hearing a .car, signalled plaintiff to drive on; that plaintiff again looked before starting to cross; that the hind wheel of his wagon was struck as it passed over the second rail; that no notice of the approach of the car was given or any attempt made to stop it until it was within 150 feet of the wagon. Held, that no negligence of plaintiff was disclosed by his evidence, and that the question of defendant’s negligence was for the jury.</p>

<p>Negligence — Master and servant — Dangerous machinery — Belts —Belt shifters — Act of May 2, 1905, Sec. 11, P. L. 35% — Negligence per se.</p> <p>1. The provisions of the Act of May 2, 1905, Sec. 11, P. L. 352, providing that the owner or person in charge of an establishment where machinery is used shall provide belt shifters or other mechanical contrivances for the purpose of throwing on or off belts or pulleys, is mandatory and the failure to comply with it resulting in injury to another without the latter’s fault is actionable negligence.</p> <p>2. In an action of trespass to recover damages for personal injuries sustained by plaintiff while working at certain shears driven by a bolt, where it appeared that if the belt had been provided with a belt shifter as required by the Act of May 2, 1905, Sec. 11, F. L. 352, the accident could have been avoided, the court committed no error in charging the jury as a matter of law, the facts not being in dispute, that the failure of defendant to comply with the provisions of the act was negligence.</p>

<p>Negligence — Street railways — Conflicting evidence — Case for jury — Infants.</p> <p>1. Where the evidence is conflicting as to the material facts upon which the rights of the parties depend, the ease is for the jury-</p> <p>2. In an action of trespass to recover damages for personal injuries sustained by an infant plaintiff in consequence of being run over by a trolley car, where plaintiffs’ evidence tended to show that after sledding down a street intersecting the street on which defendant’s double tracks lay, he got off his sled and piffling it after him passed over the first track and almost over the second when he was struck by the ear, the motorman of which was not looking ahead but to the side away from the boy and defendant’s witnesses testified that the boy while riding flat on his sled passed over the tracks and in front of the moving car, the court was not in error in submitting the question of defendant’s negligence to the jury and a verdict and judgment for the plaintiff was sustained.</p>

<p>Appeal, No. 205, October Term, 1913, by defendant, from judgment by C. P. Allegheny Co., May T., 1911, No. 569, on verdict for plaintiff in case of Joseph A. Weiss v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injury. Before Ford, J.</p> <p>At tlie conclusion of the charge to the jury, counsel for defendant said in requesting an exception thereto:</p> <p>“I desire an exception to the charge as inadequate in not reciting the testimony. It seems to me where a great number of witnesses have been produced by the defendant it is the duty of the court to go into that evidence at some length, and I therefore ask for an exception to the charge as inadequate on that ground.” (2)</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $15,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned was the inadequacy of the charge.</p>

<p>Appeals, Nos. 211 and 212, January T., 1913, by defendants, from judgment of O. & T. Fayette Go., March T., 1913, No. 11, on verdict of guilty of murder of the first degree in case of Commonwealth of Pennsylvania v. Luigi De Leo and Frank Wells.</p> <p>Indictment for murder. Before Van Swearingen, J.</p> <p>From the record it appeared that one Calvacante, who was walking on the public highway with his wife and with a friend, Charles H. Butler, was attacked by the defendants for the purpose of robbery, that Butler began to “halloo” and was thereupon shot by defendant Wells. Butler subsequently died of the wound inflicted.</p> <p>The defendants’ fifth point, with the answer thereto, was as follows:</p> <p>“5. The defendants being jointly indicted and tried together, the jury has the power to return one verdict as to one and a different verdict as to the other.</p> <p>“Answer. Refused as not applicable under the evidence of this case.” (1)</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>The jury found a verdict in each case of guilty of murder of the first degree upon which sentence of death was passed. Defendants appealed.</p> <p>Errors assigned were (1) the refusal of the court to affirm above point; (2) other instructions, and (3) rulings on evidence.</p> <p>The evidence may be sufficient to warrant a verdict of murder in the first degree, but the jury may find the fact to be otherwise: Rhodes v. Com., 48 Pa. 396; Lane v. Com., 59 Pa. 371; Com. v. Fellows, 212 Pa. 297; Kane v. Com., 89 Pa. 522; Meyers v. Com.,' 83 Pa., 131; Com. v. Frucci, 216 Pa. 84.</p> <p>Evidence of the dying declarations was inadmissible: Com. v. Williams, 2 Ash. 69.</p> <p>The charge to the jury was erroneous.</p> <p>The refusal of defendants’ point was proper: Weston v. Com., Ill Pa. 251; Com. v. Major, 198 Pa. 290; Com. v. Biddle, 200 Pa. 640; Com. v. Flanagan, 7 W. & S. 415; Com. v. Cleary, 148 Pa. 26; Com. v. Aston, 227 Pa. 106; Com. v. Danz, 211 Pa. 507; Johnston v. Com., 85 Pa. 54; Com. v. Buccieri, 153 Pa. 535; Com. v. Crossmire, 156 Pa. 304; Com. v. Sutton, 205 Pa. 605.</p> <p>The dying declarations were admissible: Com. v. Winkleman, 12 Pa. Superior Ct. 497; Sullivan v. Com., 93 Pa. 284; Kilpatrick v. Com., 31 Pa. 198; Com. v. Roddy, 184 Pa. 274; Com. v. Mika, 171 Pa. 273; Com. v. Latampa, 226 Pa. 23; Meyers v. Com., 83 Pa. 131.</p> <p>No error was committed in the charge to the jury: Com. v. Winkelman, 12 Pa. Superior Ct. 497; Com. v. Clymer, 217 Pa. 302; Com. v. Kovovic, 209 Pa. 465; Com. v. Frucci, 216 Pa. 84; Com. v. Cunningham, 232 Pa. 609; Shaffner v. Com., 72 Pa. 60; Johnston v. Com., 85 Pa. 54; Kilpatrick v. Com., 31 Pa. 198; Rhodes v. Com., 48 Pa. 396; Com. v. Sheets, 197 Pa. 69; Com. v. Hollinger, 190 Pa. 155; Com. v. Romezzo, 235 Pa. 407.</p>

<p>Appeal, No. 91, Oct. T., 1913, by defendant, from judgment of C. P. Cambria Co., June T., 1910, No. 491, on directed verdict for plaintiff in case of D. J. Llewellyn v. The Sunnyside Coal Company.</p> <p>Ejectment for tbe recovery of lands in Cambria County. Before Bouton, P. J., specially presiding.</p> <p>Tbe opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff by direction of the court and judgment thereon. Defendant appealed.</p> <p>. Errors assigned were in excluding defendant’s evidence of title referred to in the opinion of the Supreme Court and in directing a verdict for plaintiff.</p>

<p>Equity — Pleadings—Allegata and probata — Bills for accounting —Decree not in conformity with prayers.</p> <p>' 1. The relief afforded by a decree in equity must conform to the case as.made out by the pleadings as well as to the proofs. Every fact essential to entitle the plaintiff to the relief which he seeks must be averred in his bill. Neither unproved allegations nor proof of matters not alleged can be made a basis for equitable relief. If there is nothing in the testimony to sustain the bill as filed, it must be dismissed.</p> <p>2. Proceedings in equity may not be stretched to give relief from a specific wrong not averred in the bill of complaint, or to make a decree not in conformity to its prayers.</p> <p>3. Where a bill in equity was filed against the treasurer of a corporation, averring only his failure to perform his duties as prescribed in the by-laws and to account for moneys had and received by him in his capacity as treasurer of the company, and containing a prayer in the usual form for an accounting, the master and the court below could not turn the proceeding into one for the investigation of the way in which a large amount of stock had been issued by the company itself, and after finding that it had been unlawfully issued by the company to the defendant, as an individual, make, a decree in a case against him as treasurer, to the effect that he was responsible to the company for the par value of the said stock.</p> <p>Corporations — Stock subscription — Liability for par -value — Suit by corporation.</p> <p>4. Where it appeared that the stockholders of a corporation had recommended at their first meeting that the directors should purchase certain real estate from defendant, one of the promoters and afterwards treasurer of the company, paying therefor a large amount of the full paid capital stock of the company far in excess of the value of the real estate, and the directors had acted upon this recommendation, and the stock thus transferred to the defendant had then been distributed among the stockholders in certain proportions, the corporation is in no position hy bill in equity to compel the defendant to pay into its treasury the par value of the said stock less the actual value of the real estate transferred by him, especially where it appears that seven years have elapsed since the transaction, and that many of the present stockholders of the corporation were the same among whom the said stock was divided.</p>

<p>Appeal, No. 254, Oct. T., 1913, by plaintiff, from order of C. P. Cambria Co., Sept. T., 1910, No. 249, entering conditional judgment, on verdict for plaintiff by direction in case of Louisa Luther v. P. O. Luther.</p> <p>Ejectment for the recovery of lands in Cambria County. Before O’Connor, P. J.</p> <p>The facts appear by the opinion of the Supreme Court and in Luther v. Luther, 216 Pa. 1, and 226 Pa. 144.</p> <p>Verdict for plaintiff for the land described in the writ by direction of the court. The court directed judgment to be entered for plaintiff upon payment by plaintiff to defendant of the purchase money expended by him in acquiring title to the property. Plaintiff appealed.</p> <p>Error assigned, among others, was the order of the court</p> <p>The defendant committed actual fraud in securing possession of the land and is not entitled to be paid the money that he used in committing the fraud: Riddle v. Murphy, 7 S. & R. 230; Gilbert v. Hoffman, 2 Watts 66; Christy v. Sill, 95 Pa. 380; Collins v. Rush, 7 S. & R. 147; Duff v. Wilson, 72 Pa. 442; Smull v. Jones, 1 W. & S. 128; Jackson v. Summerville, 13 Pa. 359.</p> <p>—The defendant is entitled to reimbursement for money actually expended in acquiring title to the property: Fellows v. Loomis, 170 Pa. 415; McGeary v. Jenkins, 187 Pa. 440.</p>

<p>Appeal, No. 217, October T., 1913, by defendant, from judgment of C. P. Armstrong Co., March T., 1913, No. 180, on verdict for plaintiff in the case of Lulu Rinehuls v. Van Horn Ely, Receiver of the Western Allegheny Railway Company.</p> <p>Trespass for death of plaintiff’s husband. Before Camebon, J., specially sitting.</p> <p>' The court in its answer to points charged the jury, inter alia, as follows :</p> <p>“First. — The Western Allegheny Railroad Company was required to furnish Cecil Rinehuls, being one of its own brakemen, with a safe place to work, and to maintáin such place in a safe condition by a reasonably careful inspection,- and to repeat such inspection as frequently as necessary, having regard to the exigencies and risks of the business.”</p> <p>“Answer. — We affirm that point.”</p> <p>“Sixth. — The duty to furnish a safe place to work encumbent upon the Western Allegheny Railroad Company, and to maintain such place in a safe condition by reasonable inspection, repeated as frequently as necessary, having regard to the exigencies and risks of the business, such duty is an absolute one, and the defendant railroad company could not be relieved from performing such duty by delegating the duty to its servants or employees.”</p> <p>“Answer. — That is affirmed.”</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiff for $12,000. Defendant appealed.</p> <p>Errors assigned were, among others, the above instructions to the jury.</p>

<p>Negligence — Railroads—"Stop, look and listen" — Grade crossing — Contributory negligence — Case for jury.</p> <p>1. There is no fixed rule requiring one who has once stopped in a place of safety before entering upon a railroad crossing, to again stop, look or listen when on the tracks or between them. Whether he should do so always depends upon the particular circumstances of the case and it is for the jury to say whether in what he did or what he failed to do he contributed by his own negligence to his injury.</p> <p>2. In an action for damages for personal injuries sustained in a grade crossing accident, the case is for the jury and a verdict for the plaintiff will be sustained where it appears by the testimony of the plaintiff’s witnesses that about eight o’clock in the evening, after it had become dark, the plaintiff, who had been walking on the pavement of a public street along which the defendant company operated two lines of track, one to accommodate its north, the other its south bound trains, reached a public crossing, which led over the tracks of the defendant company; that while approaching the crossing he saw a freight train moving south on the track farthest from him; that on reaching the crossing he stopped to await clearance by the freight train and before attempting to cross looked up and down the track nearest him, without seeing or hearing anything that indicated the approach of a train, and as he proceeded continued to listen; and that while crossing the second rail of the nearest track he was struck by an engine which had given no signal of its approach and was without headlight.</p> <p>3. In such case, where the accident occurred after dark and the engine approached without headlight, it is not error for the court to refuse to give binding instructions for the defendant on the ground that from the undisputed evidence an approaching train could have been seen from the place plaintiff stood before attempting to cross, at a distance of 125 feet, and that when plaintiff said he looked and saw no train the only possible inference was that he did not so look.</p>

<p>Appeal, No. 61, Oct. T., 1913, by Elizabeth Kuhn Kramer, Executrix of William A. Kramer, deceased, from decree of O. O. Allegheny Co., Oct. T., 1912, No. 148, dismissing exceptions to adjudication in Estate of Juliet G. English, deceased.</p> <p>Exceptions to adjudication. Before Over, J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court dismissed exceptions to the adjudication.</p> <p>Error assigned was the decree of the court.</p> <p>—There is no ambiguity or uncertainty in the language of the will or the ninth paragraph thereof, and there is no need of artificial rules of construction: Reek’s App., 78 Pa. 432; DeSilver’s Est., 142 Pa. 74; Buckman’s App., 195 Pa. 363; Thompson’s Est., 229 Pa. 542.</p> <p>The word “and” cannot be read as “or” in the ninth paragraph of the will: Cheesman v. Wilt, 1 Yeates 411; Doebler’s App., 64 Pa. 9.</p> <p>There is an intestacy as to Kramer’s share upon his death over thirty without issue: Reed’s Estate, 237 Pa. 125.</p> <p>The general intent expressed by the will was to dispose of the whole of her estate and to pass the corpus of the trust in question unimpaired to her great-grandchildren, if any: Cox’s Est., 180 Pa. 139; Middleswarth v. Blackmore, 74 Pa. 414; Earp’s Will, 1 Parsons Select Eq. Cases 453; Ferry’s App., 102 Pa. 207; Tyson’s Est., 191 Pa. 218; Miller’s App., 113 Pa. 459.</p>

<p>Appeal, No. 57, Oct. T., 1913, by defendants, from judgment of O. P. Armstrong Co., Sept. T. 1911, No. 199, on verdict for plaintiff in case of David T. Gibson v. John H. Campbell & A. E. Butler, doing business as Campbell & Butler.</p> <p>Assumpsit to recover balance alleged to be due on a contract for hauling. Before Patton, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>While the plaintiff was undergoing cross examination defendant proposed to ask him certain questions, to which objections were made and sustained as follows:</p> <p>“By Mr. McCullough: We propose to ask the witness on the stand, the plaintiff, on cross-examination where he expended the 337 items of expense for board, as set forth in Ex. A, a part of his statement of claim against the defendant, for the purpose of testing the recollection and credibility of the witness as to the amount of the claim for boarding in this case.</p> <p>“Objected to as irrelevant under the pleading in the case and the rule of court.</p> <p>“By the Court: The defendant’s affidavit setting forth that the entire contract between the parties was that they were to pay him $100 a month and no board, and not having set up that the claim for board was excessive, the objection is sustained and a bill of exceptions is sealed to the defendant.” (1)</p> <p>Verdict for plaintiff for $1,833.44 and judgment thereon. Defendants appealed.</p> <p>Errors assigned, among others, were (2) in sustaining objection to question to be propounded to plaintiff on cross-examination, and other rulings on evidence.</p> <p>cited: Breinig v. Meitzler, 23 Pa. 15 6; Rogers v. Old, 5 S. & R. 404; Blair v. Ford China Co., 26 Pa. Superior Ct. 374; Miller v. Miller, 187 Pa. 572; Grim v. Reimbold, 148 Pa. 446.</p>

<p>Beal property — Trespass to land — Telephone companies — Telephone poles and wires — Eminent domain — Recovery of damages— Act of June 2,1891, P. L. 170.</p> <p>1. Damages resulting to land owners by the cutting of trees, whether planted by the roadside or on enclosed or unenclosed land adjoining the same, if done in the exercise of the right of eminent domain, are clearly within the express provisions of the Act of June 2, 1891, P. L. 170. In such case an action of trespass will not lie to recover damages, unless there are such circumstances of negligence or wantonness as to make the case exceptional.</p> <p>2. Where a claim for damages to land is asserted under facts indicating that the original entry upon the land was lawful, the statutory proceeding which requires the appointment of viewers for the assessment of damages must be followed.</p> <p>3. In an action of trespass to recover damages for injuries to land caused by the erection and maintenance of a telephone line upon a public road adjacent to plaintiff’s land, it appeared that plaintiff had taken title -to the land alleged to be injured subsequent to the erection of the poles and wires complained of; and that so far as the facts were disclosed by the record the original entry by defendant company was lawful, and it did not appear whether an agreement had been made that no damages would be paid, or whether the damages were then actually settled. There was no assignment by the former owner to the plaintiff. The lower court entered a nonsuit which it subsequently refused to take off. Held, no error.</p>

<p>Appeal, No. 71, Oct. T., 1913, by plaintiff, from judgment of O. P. Westmoreland Co., Aug. T., 1907, No. 431, Fi. Fa. No. 65, Feb. T., 1908, on verdict for defendant, Urilla F. Lowery, in case of Manor National Bank v. Urilla F. Lowery and J. C. Lowery.</p> <p>Rule to open judgment entered upon a single bill. Before McConnell, J. •</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court opened the judgment as to defendant wife and an issue was awarded to try the question raised in the petition for the rule. The jury found a verdict for defendant, upon which judgment was entered. Plaintiff appealed.</p> <p>Errors assigned were various rulings 01 the trial judge, various instructions to the jury and answers to points.</p>

<p>Beal property — Trusts ex maleficio — Parol promises to convey— Statute of Frauds — Act of April 22,1856, P. L. 582.</p> <p>1. While it is true that trusts ex maleficio arise by implication or construction of law and are excepted out of the operation of the Statute of Frauds, no rule is better established than that a trust ex maleficio can arise only at the inception of the title from fraud practiced in obtaining the title.</p> <p>2. A trust ex maleficio may not be created by subsequent declarations in effect acknowledging the trust. Where the transaction implies nothing more than the breach of a parol agreement equity will not decree a trust.</p> <p>3. In an action of ejectment where plaintiff claimed title under the will of a devisee who had, together with her husband, who was her devisor, conveyed the land in suit to defendant by deed absolute, and where plaintiff introduced evidence to show that the land had been conveyed to defendant with the' understanding that the land was to be reconveyed upon payment by the husband grantor of a debt to be contracted by him with a third person, but that defendant had refused subsequently to reeonvey the land though the debt had been paid, the court made no error in entering judgment for defendant n. o. v., in the absence of evidence to show any fraud in the procurement of the conveyance to defendant. Such evidence showed no more than the breach of a parol agreement to reconvey the land in suit.</p>

<p>Wafers — Rights of riparian owner — Railroads—Use of water for locomotives — Equity—Injunction.</p> <p>1. A railroad company which has not instituted condemnation proceedings for the purpose of appropriating the water of a stream, may be restrained at the suit of a riparian owner from taking the water of the stream for the purpose of generating steam in locomotives which are merely temporarily on the land in transit to other points, although proceedings for the condemnation of land on the banks of the stream are then pending. The fact that the water of the stream is more than sufficient for the use of both parties is immaterial. Scranton Gas & Water Co. v. Delaware, Lackawanna & Western R. B. Co., 240 Pa. 604, followed.</p> <p>2. Defendant railroad company, a corporation having the power of eminent domain, laid out its right of way through a portion of plaintiff’s property and across a stream, over which was constructed a bridge, instituted condemnation proceedings for the taking of the land, filed its bond, and entered upon the construction of its road. Pending plaintiff’s appeal from the award of the viewers, defendant installed a pump, pipe line and water tank within the limits of the condemned land, and proposed to extract water from the stream for the purpose of producing steam for its locomotives and other operating purposes. The lower court, • on plaintiff’s bill in equity, granted an injunction restraining defendant “from taking or appropriating any portion of the water from plaintiff’s property for steam-producing or operating purposes of defendant’s railroad.” Held, no error.</p> <p>Practice, Supreme Court — Appeals—Assignments of error — Exceptions.</p> <p>3. Under the equity rules of the Supreme Court each assignment of error must be self-sustaining; it must show the exception taken in the court below to the ruling complained of, the action upon the exception in totidem verbis, and the pages must be stated where the matter referred to may be found in the paper books or appendix. Assignments of error not in accordance with these rules will be dismissed.</p>

<p>Eminent Domain — Railroads — Townships — Condemnation of public road — Failure of railroad to reconstruct public road — Damages — Act of February 19,1849, P. L. 79.</p> <p>1. Where a railroad company in the exercise of its right of eminent domain appropriates and occupies certain portions of a township road, and after notice from the township authorities to reconstruct the road as required by the Act of February 19, 1849, P. L. 79, which provides: “If any such railroad company shall find it necessary to change the site of any portion of any turnpike or public road, they shall cause the same to be reconstructed forthwith at their own proper expense, on the most favorable location and in as perfect a manner as the original road,” neglects or refuses to do so, the township may itself construct the new road and collect the cost thereof from the defendant company.</p> <p>2. In such a ease where the defendant railroad company has failed to construct the new road and the township undertakes itself to reconstruct a new road, partly within and partly without the right of way of the defendant company, it is entitled to recover only for the expense it has incurred in reconstructing the road outside of the right of way of the defendant company.</p> <p>3. In such a case, where the trial, in the court below resulted in a verdict for the plaintiff, it was error for the court to enter judgment n. o. v. for the defendant upon the ground that the township authorities had, in part at least, reconstructed the highway within the limits of the right of way of the railroad and had not distinguished between the expense of widening the road and reconstructing it in a new location, and the cost of removing some of the encroachments placed thereon by the railroad; a new trial should have been granted.</p>

<p>Appeal, No. 178, Oct. T;, 1913, by David B. McCalmont, Harriette McCalmont Stone and Constance McCalmont Humphrey, from decree of O. C. Venango Co., Aug. T., 1912, No. 18, dismissing petition for removal of executor of Estate of S. P. McCalmont, deceased.</p> <p>Petition for the removal of executor. Before Criswell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the petition. Petitioners appealed.</p> <p>Error assigned was in refusing to require the executrix of James Donald McCalmont, deceased, to become a party to the proceeding.</p>

<p>Negligence — Master and servant — Explosion of boiler — Burden of proof.</p> <p>1. In an action to recover damages for the death of plaintiff’s husband occasioned by the explosion of a boiler alleged to be the property of and at the time of the accident used by the defendant company, the case was properly taken from the jury where all that appeared by the plaintiff’s case was that the deceased was a fireman employed by the defendant company and was working around the boiler at the time of the explosion; that it was not clear whether the defendant owned or operated the particular boiler that exploded, but that there was at least one other contractor or subcontractor on the ground to whom, under the proofs, the exploded boiler might have belonged; that there was some doubt as to whether the boiler examined by an expert witness for the plaintifE ten days after the accident, and a quarter of a mile away from the place of the explosion, was in fact the boiler which caused the injury; that the evidence as to the condition of the boiler was very meagre, not showing how long it had been used, or for what purposes, or that it had not been properly inspected; that it was probable, according to the testimony of an expert witness for the plaintiff, that the explosion was occasioned by failure of deceased to keep the boiler supplied with water, or by “the sudden introduction of cold water to a hot crown sheet,” and that it was unlikely, according to the testimony of such witness, that the explosion was occasioned by reason of the boiler having been patched.</p> <p>Evidence — Negligence—Declarations—Bes gestae.</p> <p>2. In an action to recover damages for the death of plaintiff’s husband, caused by the explosion of a boiler, proof that deceased, in answer to a question as to how the explosion occurred, replied “God only knows; I had plenty of water and plenty of steam” lacked the essential elements to make it admissible as a declaration constituting part of the res gestee, and was properly refused as a mere recital of the deceased’s opinion of existing conditions prior to the accident.</p>

<p>Appeal No. 78, Oct. T., 1913, by defendant, from judgment of C. P. Greene Go., Sept. T., 1905, No. 89, on verdict for plaintiff in case of J. A. Addleman v. The Manufacturers’ Light and Heat Co., a corporation.</p> <p>Assumpsit to recover rental alleged to be due on a gas and oil lease. Before Inghram, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,812.59 and. judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were those referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 127, October T., by defendant, from judgment of O. P. Indiana Co., September T., 1911, No. 129, on verdict for plaintiff in case of Nicolena Dellasala v. Tbe Josephine Furnace and Coke Company.</p> <p>Trespass to recover damages for tbe death of plaintiff’s husband. Before Telford, P. J.</p> <p>The opinion of tbe Supreme Court states tbe facts..</p> <p>Verdict for plaintiff for $5,416.66 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were, among others, in refusing to direct a verdict for defendant n. o. v.</p>

<p>Negligence — Boroughs—Streets—Ice—N otice — N onsuit.</p> <p>In an action of trespass to recover damages for personal injuries sustained by plaintiff in consequence of a fall on ice which had formed on the sidewalk of a borough street, it appeared that the ice had been formed by the freezing of slush the night before the accident, only a few hours before plaintiff fell. There was no evidence that the borough authorities had actual notice of the condition of the sidewalk. The lower court entered a judgment of nonsuit. Held, no error.</p>

<p>Appeal, No. 242, October T., 1913, by plaintiff, from decree of C. P. Indiana Co., Dec. T., 1912, No. 1, dismissing bill in equity in case of The Central District and Printing Telegraph Company v. The Borough of . Homer City.</p> <p>Bill in equity for an injunction. Before Telford, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court made a decree dismissing the plaintiff’s bill.</p> <p>Error assigned, among others, was in dismissing the bill.</p>

<p>Appeal, No. 8, Oct. T., 1913, by defendant, from judgment of C. P. Lawrence Co., June T., 1911, No. 8, on verdict for plaintiff in case of P. E. Welker v. E. E. Hazen.</p> <p>Trespass to recover damages for the alienation of the affections of plaintiff’s wife. Before Porter, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $10,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the twenty-first referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 214, Oct. T., 1913, by defendant, from judgment of C. P. Indiana Co., March T., 19.11, No. 230, on verdict for plaintiff in case of Minnie Stephens (widow), May Stephens, Homer Stephens, Edna Stephens, Chester Stephens, Blanche Stephens, Mary Stephens and Sarah Stephens, widow and heirs of Shadrach Stephens, deceased, v. Cambria and Indiana Railroad Company.</p> <p>Appeal from report of viewers. Before Telford, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for $3,454.26 with interest computed from the time defendant took possession of plaintiffs’ lands, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various > rulings of the trial judge and various instructions to the jury.</p>

<p>Appeal, No. 132, Oct. T., 1913, by defendant, from judgment of O. P. Lawrence Co., Dec. T., 1910, No. 74, on verdict for plaintiff in case of George S. Jones v. American Can Company.</p> <p>Trespass to recover damages for personal injuries. Before Portee, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>