Volume 245 — Pennsylvania State Reports

<p>Appeals, Nos. 29 and 59, Oct. T., 1914, by plaintiffs, from decree of C. P. Butler Co., Dec. T., 1913, No. 2, in equity, dissolving preliminary injunction and sustaining demurrer to bill in case of Levi Deal, Emanuel Berkley, Ezra Deal, Calvin Deal, A. J. Willison, Henry F. Brant, James M. Deal, and Gertrude Brant v. Perry C. Miller, H. L. Miller, Fred Roe, C. J. Roe, E. M. Beachley, W. N. Moser, J. C. Reed and Erie Coal and Coke Company, a Corporation.</p> <p>Bill in equity for injunction and to order a new election of directors of a corporation.</p> <p>Galbreath, P. J., filed the following opinion:</p> <p>The individual defendants are the acting directors of the Erie Coal and Coke Company, a corporation, under the laws of Pennsylvania, whose place of business is Somerset, Pennsylvania, but whose plant is located and its operations carried on at Ferris, in Butler County, said State. Its manager for several years last past has been Levi Deal, one of the plaintiffs herein, who, together with the other plaintiffs, are the owners of a majority of the stock of said corporation. The individual defendants, claiming to have been elected, as directors of said corporation at a stockholders’ meeting held on the 23d day of August, 1913, are seeking to effect a change in the management of their said plant, and on said 23d day of August, 1913, served written notice upon said Levi Deal to quit the management of said corhpany and to turn over the books, moneys, contracts and business thereof to the said directors; to themselves as directors of said corporation. This Deal refuses to do, claiming that the alleged election of said defendants, as directors, was illegal and fraudulent. Illegal, because the stockholders voting at said election did not represent the majority of the stock of said corporation, and fraudulent because said Deal was wrongfully prevented from voting certain stock owned and held by him at the time of said election. In order to an adjudication of the question so presented, the pending bill was filed by the plaintiffs therein, praying that the defendants be restrained from interfering with or molesting the manager, Levi Deal, in the management and operation of said company’s business or from taking possession of the same, and asking the court further, to direct an election of a board of directors for said company and supervise the same and for that purpose to appoint a master to hold said election and also that a receiver be appointed for the purpose of conducting the business of said corporation, pending the final decree.</p> <p>While it is true that the bill in this case was brought to prevent any interference on part of defendants with the management of said property by said Levi Deal and to order an election, as above set forth, yet, the real controversy fundamental to all other questions raised in said bill is upon the validity of the election of the defendants, as directors of said company. If they were lawfully elected, they are entitled to the control and management of the property of the corporation and cannot be interfered with in their efforts to so control and manage it. On part of the defendants it is contended that the question thus raised cannot be determined on a bill in equity, but must be adjudicated on a writ of quo warranto in a court of law and not in equity.</p> <p>Speaking generally, equity will not interfere by way of injunction except where the right of the complainant is clear or is admitted or has been adjudicated on the law side of the court. In the pending case the defendants do not admit the plaintiffs’ right, neither has it been adjudicated in any proceeding at law and unless it appear clearly from the matters alleged in the plaintiffs’ bill, it is quite evident that a court of equity cannot interfere.</p> <p>There is no averment that the defendants are seeking to get possession of the property of the corporation with a view to its mismanagement or to waste it or in any way to control it to the prejudice of the stockholders of the company. The only complaint is that at a meeting of the stockholders, held at a proper time and place, one of the plaintiffs was prevented from voting certain stock he claimed the right to vote and that thereupon he, together with others of the plaintiffs, withdrew from said meeting, leaving but a minority representation of the stock to conduct the election. That an election was actually held under these circumstances is not denied, and for the purpose of a decision of the question now before us, it must be assumed to be true, and if we assume not only that the election was by a minority of the stock of the corporation, but also that Levi Deal, aforesaid, was fraudulently prevented from voting certain stock held by him, yet, we do not still avoid the fact that an election was actually held at which the defendants were elected by the stock there represented to the directorate of the corporation. Had an application been made to a Court of Equity in advance of such election setting.forth that it was the purpose and design of those who would be in charge of said election to fraudulently prevent the voting of stock held by certain stockholders, or that there was reasonable apprehension of disorder or fraud at said election, a Court of Equity would on a proper showing of these facts have put forth its hand to stay the threatened wrong. In the case of Jenkins v. Baxter, 160 Pa. 199, the election was had by a minority representation of the stock.</p> <p>There was a controversy as to the right of certain stockholders to vote certain shares of stock held by a trust company. The plaintiffs in the bill and their associates withdrew from the meeting and elected a board of directors. The others, representing a minority of the stock, remained and elected the defendants in the bill as directors of the company. A bill was filed by those elected by the withdrawing stockholders asking that they be declared elected and asking that a new election be held under the direction of a master. A demurrer was filed setting up that the validity of the election could not be decided in a Court of Equity. The demurrer was overruled by the lower court. On appeal, however, the action of the court in overruling the demurrer was reversed. In disposing of the question the court says: “It was the right of the plaintiffs to contest the validity of this election, if they so desired, but the method was by writ of quo warranto, as provided by the Act of June 14,1836 (P. L. 621).” To the same effect is the decision of the court in the case of Bedford Springs Company v. McMeen, 161 Pa. 639. In that case the bill was brought to compel' the delivery of the property of the company to the plaintiffs therein, who were the duly elected officers of the company. The court held that the real question at issue was the validity of the election of the defendants, as officers of the corporation and that this could only be determined by quo warranto. We have examined with some degree of care the authorities cited by counsel for the plaintiffs and defendants herein, as well as such other authorities as were available, but do not find any decision which will warrant the court in passing upon the validity of the election of the defendants in a proceeding in equity. Were the determination of the validity of such election an incidental question arising in the consideration of a substantive complaint of which equity had jurisdiction, the matter would be wholly different, but as already said, the real question at issue and the fundamental one herein is the validity of the election of the defendants, as directors of the company. Nor do we think that the allegation contained in the plaintiff’s bill that Levi Deal,-one of the plaintiffs, was fraudulently prevented from voting certain stock held by him, is sufficient to give equity jurisdiction after the election has actually taken place, although such a wrong might have been prevented in advance, by the exercise of equitable powers. The reason for the difference we apprehend is this, that before the threatened wrong has been consummated, there is no remedy at law to prevent it and recourse can only be had to equitable remedies, but after the election has been held and even if fraud has entered into it, the whole question of its validity can be ascertained and declared in a proceeding on the law side of the court. That is, by quo warranto.</p> <p>It may be observed that in some of the States of the Union, by statutory enactment, Courts of Equity are given jurisdiction to determine the legality of the election of corporate officers, notably in the states of New York and New Jersey. We have not, however, been able to find a single case wherein the validity of an election of corporate officers can be adjudicated on a bill in equity, except where such statutory provision exists. Under these circumstances we deem it the duty of the court to grant the motion of defendants’ counsel and dissolve the preliminary injunction heretofore issued, which is done accordingly.</p> <p>The court dissolved the preliminary injunction, and on demurrer dismissed the bill. Plaintiffs appealed.</p> <p>Errors assigned were in dissolving the preliminary injunction and dismissing the bill.</p>

<p>Negligence — Street railways — Collision — Personal injuries— Damages — Excessive damages — Evidence—Loss of earning power —New trial — Act of May 20, 1891, P. L. 101.</p> <p>1. The power conferred by the Act of May 20, 1891, P. L. 101, upon the Supreme Court to reverse the judgment of the court below on the ground that damages awarded are excessive, will not be exercised except in extreme cases where the injustice of allowing an excessive verdict to stand is so manifest as to show a clear abuse of discretion by the trial court.</p> <p>2. In an action against a street railway company to recover damages for personal injuries sustained in a collision of one of defendant’s cars with a wagon on which the plaintiff was riding, it was not error for the court to refuse to grant a new trial on the ground that a verdict of $4,000 was excessive where it appeared that the plaintiff’s head and back were injured in the collision; that he was unconscious for nearly an hour after the accident and had since suffered from constant headaches and insomnia; that the injuries to his head had seriously impaired the sight of one eye, and the removal of the eye might be necessary; and that the injury to his back so weakened it that he was unable to do more than half the work he did before, or to do heavy work of any kind, it further appearing that plaintiff had suffered considerable pain, suffering and inconvenience, which was likely to continue in the future.</p>

<p>Real property — Contract of conveyance — Deed—Bill in equity— Fraud — Evidence.</p> <p>Upon the trial of an action in equity to require the delivery of a deed executed by defendant and placed in escrow, it appeared that the defendant, a man seventy years of age and of defective hearing, was the owner of a tract of land worth about $9,000, and was induced by the agent of the plaintiffs to execute a deed to the same to the plaintiffs, for the sum of $400; that such land had been conveyed to the defendant at a tax sale in 1876, and that another tract was conveyed to him at a similar sale in 1880; that the deed presented by plaintiffs’ agent to defendant for execution contained a description of the land acquired by defendant under the sale of 1876, but recited that the property conveyed was “the same piece of land deeded hy the treasurer of Cameron County said State in the year 1880”; that the defendant relying on the representation of plaintiffs’ agent executed the deed, under the impression that he was conveying land acquired under the sale of 1880, and that although plaintiffs, lived within seventy-five miles of defendant in Pennsylvania, they sent their agent to make the purchase from him while he was temporarily in another state, and when he did not have access to his deeds or title papers, from which he could have detected the error. The court dismissed the bill. Held, no error.</p>

<p>Negligence — Boroughs—Ice on sidewalk — Pedestrian—Contributory negligence — Case for jury.</p> <p>In an action against a borough to recover damages for personal injuries resulting from falling on a ridge of ice on the sidewalk of a main street of the defendant borough, the ease was for the jury and a verdict for the plaintiff was sustained where it appeared that the flag stones with which the walk was paved were not uniform in height and on the lower of them pools of water some two inches deep collected, and by freezing and thawing formed slush and accumulated snow that became worn into ridges and extended across the walk; that the walk had been out of repair for several years and the ridges of ice had been on it a number of weeks; that the plaintiff was familiar with the condition of the walk and knew of the ridges of ice, but not of their exact location, and was carefully trying to avoid them; that it was dark and a slight fall of snow obscured the ridges, and shadows of poles, tree branches and wires fell across the pavement; and that the sidewalk on the opposite side of the street was in the same condition, and it did not appear that there was a safer way open to the plaintiff.</p>

<p>Public officers — County commissioners — Auditor’s report — Taxpayers’ appeal — Issue—Laches—Striking of appeal from record,— Act of June 12,1878, P. L. 208.</p> <p>1. When an appeal from the report of county auditors settling the accounts of the county commissioners is entered within the required time, the filing of such appeal, with or without exceptions to the report, puts the burden upon the commissioners of showing that they had legally disbursed the funds of the county and imposes upon them the duty of having the question disposed of, and where after the filing of such appeal nothing further is done for a period of four years, and the appellant taxpayers then move to proceed upon the appeal and exceptions, it is error for the court to dismiss such motion, and, on motion of the commissioners, to strike the appeal from the record, on the ground that appellantg have been guilty of laches.</p> <p>2. In such ease there is no presumption that essential records, including the books, papers and vouchers explanatory of the acts complained of, have been destroyed or have become inaccessible to both parties, especially where there was no evidence or matter set up in answer by the commissioners relative to the destruction of or inaccessibility to such records, and it is error for the court to dismiss the appeal in reliance upon the existence of such presumption.</p> <p>3. In such case it is error for the court in deciding the motion to strike the appeal from the record, to take into consideration a resolution passed by the successors of the county commissioners that “We are of the opinion that if said appeal and said exceptions were really filed in good faith there has not been any due and timely prosecution of the same, and we do not believe that their present agitation is founded upon good faith, and we therefore object and protest against any issue being formed for the trial of said exceptions in which the said County of Bradford shall be use-plaintiff, as the same would make an unnecessary expense to said County óf Bradford in our opinion.”</p>

<p>Appeal, No. 86, Jan. T., 1914, by plaintiff, from judgment of C. P. Bradford Co., Sept. T., 1913, No. 45, entered for defendant non obstante veredicto in case of Jay King v. Lehigh Valley Railroad Company.</p> <p>Trespass for personal injuries. Before Maxwell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,250. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant non obstante veredicto.</p>

<p>Negligence — Street railways — Passengers — Standing on platform, — Physical infirmity — Contributory negligence — Nonsuit.</p> <p>1. While a passenger on a trolley car who sustains injuries in consequence of riding on the platform, may recover therefor, if the car was so crowded that he could not be accommodated within, the burden of proof is upon him to justify his occupying such a position.</p> <p>2. Physical infirmity gives a passenger on a trolley car no exemption from the rule that imputes contributory negligence to a passenger who voluntarily places himself in a place of known danger in consequence of which he i§ injured.</p> <p>3. In an action of trespass to recover damages for personal injuries sustained by plaintiff in consequence of the explosion of the controller of a trolley ear, occurring while plaintiff was riding on the front platform thereof, where plaintiff’s contention that the car was so crowded that he could not be accommodated within was not sustained by the evidence, and where plaintiff further undertook to justify his riding on the platform by showing that he suffered from a stiff knee which rendered it dangerous for him to occupy a seat within the car, and difficult to stand supported only by the usual strap, the trial judge was not in error in entering judgment of nonsuit, the defendant company not being under any obligation to provide special accommodations for persons afflicted as was plaintiff.</p>

<p>Railroad, companies — Duty to maintain private crossings — Act of February 19, 18J¡9, P. L. 79, Section 12 — Equity—Jurisdiction— Mandatory injunction.</p> <p>1. The right of a property owner to a private crossing over the tracks of a railroad company which owns a right of way acquired by condemnation through the lands of such property owner, is a vested right, as sacred as any other property right.</p> <p>2. The remedy prescribed by the Act of February 19,1849, P. L. 79, Section 12, providing for the recovery of damages, in cases where a railroad company fails to maintain such a crossing, is not appropriate or adequate; the only purpose of the legislature in providing it was to quicken the railroad company in the discharge of the duties imposed by the act.</p> <p>3. A court of equity has jurisdiction in such case to compel a railroad company to restore a crossing which it has wrongfully demolished. The remedy provided by the Act of 1849 is not exclusive.</p> <p>4. Where in a suit in equity to compel a railroad company which had acquired by condemnation a right of way through land owned by plaintiff to restore a crossing which it had demolished, the railroad company conceded plaintiffs’ right to the crossing, but contended that a court of equity had no jurisdiction to entertain the bill, and alleged that the remedy provided by the Act of February 19, 1849, P. L. 79, Section 12, was exclusive of a remedy in equity, the Superior Court was not in error in affirming a decree of the Court of Common Pleas awarding the relief prayed for.</p>

<p>Appeal, No. 311, Jan. T., 1913, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1912, No. 4956, on verdict for plaintiff in case of Mary A. Faulkner, by her next friend, Margaret J. Howard, v. Delph Spinning Company, Incorporated,</p> <p>Trespass to recover damages for personal injuries. Before Hall, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,000, and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the fourth assignment which complained of the charge to the jury as erroneous, inadequate and misleading.</p>

<p>Trials — Evidence—Witnesses—Models for demonstration — Notes of testimony.</p> <p>1. Where a witness'indicated by gesture or with the aid of a model anything that is important to the decision of the issue, counsel should see that the proper description is placed upon the record at the time, showing not merely the .bare fact that the witness'indicated something, but exactly what he pointed out, so that the notes may be properly understood by one not present at the trial.</p> <p>Practice, C. P. — Charge to jury — Damages—Inadequate instructions — Waiver of objections — Harmless error.</p> <p>2. If an instruction upon the question of damages is clearly erroneous, it is ground for reversal whether specific instructions were requested or not, but if the charge is only inadequate, it is the duty of counsel to ask for more definite instructions, and failure to do so will be deemed a waiver of any objections that might otherwise be made, especially where it is obvious that no harm was done by the matter complained of.</p> <p>Negligence — Master and servant — Dangerous machinery — Unguarded cog-wheels — Oiling machinery, in motion — Contributory negligence — Act of May 2, 1905, P. L. 852 — Evidence—Damages— Charge of court.</p> <p>3. The failure of an employer to place guards on all moving cogwheels, as required by the Act of May 2, 1905, P. L. 352, is negligence where it does not appear that the guarding of such wheels was impracticable.</p> <p>4. An employee injured while oiling machinery while in motion cannot be held guilty of contributory negligence as a matter 'of law, Unless the evidence not only demonstrates that plaintiff had performed the work in a way which was obviously dangerous,- when another reasonably safe way was known to him, but also that this way was clearly and readily available and such as an ordinarily prudent man would have adopted under similar circumstances.</p> <p>5. Where one is charged with contributory negligence in doing work in an obviously dangerous manner when a safe way was open to him, unless the manner of performance was so unusual and clearly careless that no two minds could reasonably disagree a'S to the alleged negligence; evidence that the injured person did the work in the customary way prevailing at his employer’s shop is relevant.</p> <p>6. In an action to recover damages for the loss of the plaintiff’s hand, which was torn off by an unguarded cog-wheel, the trial judge did not err in refusing binding instructions for the defendant where defendant’s negligence was apparent and where the evidence showed that the accident occurred while plaintiff was attempting to remove the cap of an oil box which was fastened near the moving cog-wheel, for the purpose of oiling the machinery,- but -did not show that plaintiff could have had the machinery stopped, or that- it could have been readily oiled when it was at a stand still, or that an ordinarily prudent man would have adopted such method under similar circumstances.</p> <p>7. Where in such case the trial judge in his opinion refusing a new trial, stated that a model which' was used by both parties for purposes of demonstration, but which was not offered in evidence, showed that ordinarily the work of placing oil in the cup could have been performed “while the machinery was in motion, with practically no danger of coming in contact with the cogs,” the plaintiff was not guilty of contributory negligence if the inference of the trial judge was correct, and where the notes of testimony showed merely that plaintiff “indicated” something in his testimony, in connection with the model, but did not disclose what he indicated, the Supreme Court will not assume that the inference of the trial judge was erroneously drawn and that the ease should have been withdrawn from the jury.</p> <p>8. In such case where the charge was inadequate on the question of damages in failing to direct the jury’s attention to the evidence relating to the “circumstances concerning the life of the plaintiff” or to inform them regarding its place in their deliberations, but defendant made no special request for instructions on the question of damages or on the evidence relating thereto and took no specific exception to the instructions given, the defendant will be deemed to have waived objections which he might have made.</p>

<p>Appeal, No. 383, Jan. T., 1913, by defendants, from decree of C. P. Schuylkill Co., May T., 1906, No. 2, in Equity, for plaintiffs on bill in equity for an injunction in case of Lloyd T. Brandon, to the use of James J. Dull, now to the use of Nellie F. Brandon, v. ’William P. George and Mary P. George.</p> <p>Bill in equity for an injunction. Before Brumm, J. '</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing awarded the relief prayed. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law of the trial judge and the decree of the court.</p>

<p>Appeal, No. 55, Jan. T., 1914, by plaintiffs, from judgment of C. P. Schuylkill Co., May T., 1913, No. 19, refusing to take off compulsory nonsuit in case of George W. Slater and Bessie Slater Allen v. Joseph W. Moyer, sole Executor under the Last Will and Testament of Henry P. Slater, Deceased; Joseph W. Moyer, Trustee under and by virtue of the Last Will and Testament of Henry P. Slater, Deceased; and Edward Phipps; S. Raubfogle; Julius H. Spicker, Morris H. Spicker, Simon Spicker and Solomon Spicker, trading as Spicker Brothers; Thomas F. Welsh, Frank E. Hasenauer, Carlotta Smidley and Frank Quinn.</p> <p>Ejectment. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit and subsequently refused to strike it off. Plaintiffs appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 206, Jan. T., 1913, by defendant, from judgment of C. P. Northampton Co., Feb. T., 1913, No. 53, on verdict for plaintiff in case of Ferro-Concrete Co. v. The County of Northampton.</p> <p>Assumpsit to recover balance due on a building contract. Before Stewart, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $14,836.74 and judgment thereon. Defendant appealed.</p> <p>Errrors assigned were various instructions of the court and rulings on evidence.</p>

<p>Common carrier — Misdelivery of goods — Court and jury.</p> <p>In an action against a common carrier for alleged failure to deliver goods to a consignee, the court properly directed the jury to find for the defendant where the plaintiffs failed to sustain their averment of misdeliveries and the defendant showed that proper deliveries had been made.</p>

<p>Appeal, No. 280, Jan. T., 1913, by W. Winfred Nuss, Receiver of tbe Hawes-LaAnna Company, from decree of C. P. No. 5, Philadelphia Co., June T., 1907, No. 5156, dismissing exceptions to auditor’s report in case of James C. Covington, W. Winfred Nuss and George W. Ford v. Hawes-LaAnna Company.</p> <p>Exceptions to auditor’s report.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The account of W. Winfred Nuss, receiver, was referred to Arthur G. Dickson, auditor, who surcharged the receiver in amounts aggregating $32,930.54, and refused to allow him compensation for his services, reduced the amount claimed as compensation for his counsel, and charged him with four-fifths of the expenses of the audit. The court dismissed exceptions to the auditor’s report. W. Winfred Nuss, receiver, appealed.</p> <p>Error assigned was in dismissing exceptions to the auditor’s report.</p>

<p>Appeal, No. 68, Jan. T., 1913, , by defendants, from judgment of C. P. Lycoming Co., Sept. T., 1912, No. 127, on verdict for plaintiff in case of Katharine Wanner, individually as widow of and as executrix and trustee of and devisee under the last will and testament of Adam Wanner, deceased, v. Manufacturers and Merchants Mutual Fire Insurance Company, United States Merchants Mutual Fire Insurance Company, Exchange Mutual Fire Insurance Company and the Provident Mutual Fire Insurance Company, corporations of the State of Pennsylvania.</p> <p>Assumpsit upon a joint policy of fire insurance. Before Whitehead, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,525.65, and judgment thereon. Defendants appealed.</p> <p>Errors assigned were instructions to the jury, answers to points and rulings on evidence.</p>

<p>Equity — Church law — Title to property — Roman Catholic bishop —Diversion of property dedicated to a religious use — Injunction.</p> <p>A Roman Catholic bishop, to whom the legal title of a church property had been conveyed, was required by bill in equity to re-convey the legal title to trustees appointed by the congregation. After the conveyance, the bishop by episcopal decree placed the church under an interdict, prohibited the holding of Catholic worship therein, and forbade Catholics to enter the church so long as the interdict remained unrevoked. Several members of the congregation, who had obeyed the interdict, after unsuccessfully attempting by bill in equity to restrain a priest appointed by members of the congregation who had disobeyed the interdict from holding services in the building, similar to those of the Catholic Church, thereafter obtained a revocation of the episcopal decrees, and prayed that the priest previously complained of be enjoined from longer conducting services in the church, and that the members of the congregation be enjoined from installing therein any pastor, or minister, other than a regularly ordained priest of the Catholic Church, and from diverting the church property to any form of public worship other than that prescribed by the Catholic Church. Defendants contended that their relation with the Catholic Church was severed by the interdict. Held, that the interdict was a disciplinary measure, and could not have the effect of diverting the property from the uses and purposes to which it had been dedicated; that while the interdict was in force, plaintiffs had no standing to complain, but with the interdict removed, the relief prayed for was properly granted.</p>

<p>Appeal, No. 334, Jan. T., 1913, by plaintiffs, from judgment of C. P. Lackawanna Co., Jan. T., 1913, No. 557, on verdict for defendant in case of William Miles, Caroline E. Miles, Caroline A. James, Ada E. Carter, Heirs and Administrators of the Estate of William Miles, Deceased, Caroline A. James, Administratrix of the Estate of W. A. James, Deceased, and William Repp v. Pennsylvania Coal Company.</p> <p>Ejectment for the recovery of land in Lackawanna County. Before Seaele, P. J.</p> <p>From the record it appeared that both parties claimed that the land in dispute was included in patents from the Commonwealth to their respective predecessors in title. Other facts appear in the opinion of the Supreme Court.</p> <p>Verdict for defendant and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and various instructions to the jury.</p>

<p>Appeal, No. 384, Jan. T., 1913, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1911, No. 712, refusing to take off nonsuit in case of Henry Connors v. Old Forge Discount and Deposit Bank.</p> <p>Assumpsit to recover the amount of a check paid by defendant upon a forged endorsement. Before O’Neill, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a compulsory nonsuit which the court in banc subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p> <p>The plaintiff was not negligent in not notifying the bank more promptly of the forgery: McNeeley v. Bank of No. America, 221 Pa. 588; United Security Life Ins. & Trust Co. v. Bank, 185 Pa. 586; Welsh v. German American Bank, 73 N. Y. 424; Califf v. First National Bank, 37 Pa. Superior Ct. 412; Cunningham v. First National Bank, 219 Pa. 310; Murray v. Real Estate Title Ins. & Trust Co, 39 Pa. Superior Ct. 438; Dallas v. Chaloner, 3 Dali. 500; Christman v. Com., 17 S. & R. 381; Leather Mfg,. National Bank v. Morgan, 117 U. S. 96; Robb v. Pennsylvania Co., 3 Pa. Superior 254; Eobb v. Pennsylvania Co., 186 Pa. 456; Delaware, L. & W. R. R. Co. v. Jones, 128 Pa. 308.</p> <p>The evidence justified the trial judge in. deciding as a matter of law that the plaintiff was guilty of negligence in failing to notify the bank prior to August 5th, that the endorsement was a forgery: McNeeley v. Bank, 221 Pa. 588; Murray y. Real Estate Title Ins. & Trust Co., 39 Pa. Superior Ct. 438; Hottenstein y. Lerch, 104 Pa. 454; Tabor St. (No. 1), 26 Pa. Superior Ct. 167; Land Title & Trust Co. y. Bank, 196 Pa. 230; Snyder v. Corn Exchange Bank, 221 Pa. 599; States v. First National Bank, 203 Pa. 69.</p>

<p>Appeal, No. 390, Jan. T., 1913, by defendants from decree of C. P. Lackawanna Co., Oct. T., 1912, No. 11, in Equity, awarding an injunction in case of P. A. McAndrew v. Borough of Dunmore, John J. Gilligan, P. W. Manley, R. C. Ruthven, P. C. Langan, John E. Milner, John MacMillan, P. C. Hennigan and Michael McGuire.</p> <p>Bill in equity to enjoin a borough from improving certain streets under an ordinance alleged to be void. Before Newcomb, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The court on final hearing awarded the relief prayed for. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law of the trial judge, and the decree of the court.</p> <p>The borough possessed inherent power without the authority conferred by the Act of June 15, 1911, P. L. 971, to make assessments payable in instalments and to provide that the contractor should be paid in bonds, which should rest alone for their security upon the assessments, and which should be redeemable at any time within the life of the assessments. The Act of May 12, 1911, P. L. 288, contemplated an extension of the payment of the assessment beyond the completion of the improvement.</p> <p>Even though the ordinance be void in part, the whole ordinance is not necessarily invalidated thereby: Lea v. Bumm, 83 Pa. 237; Philadelphia M. & S. St. Ry. Co.’s Petition, 203 Pa. 354; Tampa v. Salomonson, 35 Fla. 446.</p> <p>A taxpayer has no standing in equity to question the validity of an ultra vires ordinance unless he can show some peculiar or special injury to himself or to the municipality: Blanton v. Merry, 116 Ga. 288 ( 42 S. E. Repr. 211); Blanchard v. Reyburn, 10 Philadelphia 427; Stephens v. Minnerly, 3 Hun (N. Y.)566; Hulbert v. Mason, 29 Ohio State 562; San Antonio v. Campbell, 56 S. W. Repr. 97; Barton v. Pittsburgh, 4 Brewst 373.</p> <p>The ordinance is invalid because it does not conform to the provisions of the Act of June 15, 1911, P. L. 971; Commissioners of the Kensington District v. Keith, 2 Pa. 218; Pittsburgh v. Walter, 69 Pa. 365; Western Pennsylvania Railway Co. v. Allegheny, 92 Pa. 100; Pell v. Philadelphia, 81 Pa. 58.</p> <p>A city can create a valid municipal lien for improving a street only when the improvement , is made in pursuance of law: Hershberger v. Pittsburgh, 115 Pa. 78; Morewood Ave., 159 Pa. 39.</p> <p>The fact that plaintiff’s property is sought to be encumbered to secure the payment of an unauthorized issue of bonds entitled plaintiff to bring a suit: Sharp-less v. Philadelphia, 21 Pa. 147; Mott v. Penna. R. R. Co., 30 Pa. 9; Moers v. Reading, 21 Pa. 188; Steigerwalt v. Rife, 9 Pa. Superior Ct. 363; Johnston v. Price, 172 Pa. 427; Gray v. Citizens Gas Co., 206 Pa. 303.</p>

<p>Appeal, No. 294, Jan. T., 1913, by Cumberland Valley Railroad Company, from decree of C. P. Franklin Co., C. P. Docket, Vol. G, p. 337, granting the prayer of the Petition of the Board of Township Supervisors of Antrim Township, Franklin County, Pa., for permission to establish a Grade Crossing in Antrim Township over the Cumberland Valley Railroad.</p> <p>Petition for leave to establish a grade crossing. Before Gillan, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted the prayer of the petition. The Cumberland Valley Railroad Company appealed.</p> <p>Error assigned, among others, was the decree of the court.</p> <p>The lane followed by the viewers in laying out the new road, was never a public road, and evidence relating thereto is not material to this controversy: Pennsylvania Railroad Co. v. Bogert, 209 Pa. 589.</p> <p>The Act of June 7,1901, P. L. 531, was passed to give the Court of Common Pleas jurisdiction to prohibit and regulate new grade crossings; it is now the settled policy of the State to discourage the further increase of grade crossings: Mifflinville Bridge, 206 Pa. 420; Mifflinville Bridge, 209 Pa. 587; Pennsylvania Railroad Co. v. Bogert, 209 Pa. 589.</p> <p>—The plain intent of the Act of June 7,1901, P. L. 531, is to regulate and not to abolish grade crossings.</p> <p>The lower court acted within its discretion in granting the prayer of the petition: Vaux’s Appeal, 109 Pa. 497; Whitemarsh & Springfield Twps. Road, 5 Pa. 101; Youghiogheny River Bridge, 2 Pa. Superior Ct. 265; Toole’s App., 90 Pa. 376; Cramer’s License, 23 Pa. Superior Ct. 506; Lippincott’s License, 44 Pa. Superior* Ct. 459; Zion’s German Reformed Congregation’s App., 1 Mona. 635; Kimber v. Schuylkill County, 20 Pa. 366; Chase v. Miller, 41 Pa. 403; Rand v. King, 134 Pa. 641; Western Allegheny Railroad Co.’s Petition, 233 Pa. 438.</p>

<p>Appeal, No. 295, Jan. T., 1913, by plaintiff, from decree of C. P. Franklin Co., Equity Docket, Vol. 3, p. 197, dissolving preliminary injunction in case of The Cumberland Valley Railroad Company v. George W. Koons, David M. Greenwalt, U. G. Shook, Supervisors of Antrim Township, Franklin County, Pennsylvania.</p> <p>Bill in equity for an injunction to restrain township supervisors from constructing a grade crossing. Motion to continue a preliminary injunction. Before Gillan, P. J.</p> <p>The facts appear in the opinion of the Supreme Court and in Cumberland Valley Railroad Company’s Appeal, 245 Pa. 107.</p> <p>The court dissolved the preliminary injunction. Plaintiff appealed.</p>

<p>Appeal, No. 73, Oct. T, 1914, by plaintiffs, from decree of C. P. Allegheny Co., April T., 1914, No. 435, In Equity, refusing preliminary injunction in case of The Borough of Bellevue, a Municipal Corporation, W. C. Bradley and M. C. Ryan, Citizens and Taxpayers of said Borough v. The Ohio Valley Water Company.</p> <p>Bill in equity to enjoin defendant water company from increasing its rates. Motion for preliminary injunction. Before Evans, J.</p> <p>Prom the record it appeared that a contract had been entered into between the Borough of Bellevue and the water company which fixed the rates to be charged for the use of water. Subsequently the water company increased its rates and the borough and certain citizens filed a bill restraining the water company from enforcing its new rates.</p> <p>Further facts appear in the opinion of the Supreme Court.</p> <p>The court refused the preliminary injunction. Plaintiffs appealed.</p> <p>Error assigned was the decree of the court.</p> <p>The ordinance' under which the water company acquired its franchise constitutes a contract, binding upon both parties, and enforceable in equity: Car-lisle Gas & Water Co. v. Water Co., 188 Pa. 51; Penna. Water Co. v. Pittsburgh, 226 Pa. 624; Bellevue Boro. v. Mfrs. Light & Heat Co., 238 Pa. 388; Dorrance v. Bristol Boro., 224 Pa. 464; White Haven Boro. v. Water Co., 209 Pa. 166; Hydro-Carbon Fuel Co. v. Plumb, 182 Pa. 463; White v. Crawford, 84 Pa. 433; New Cumberland Boro. v. Water Company, 232 Pa. 531; Lehigh-Coplay Water Co. v. Coplay Boro., 11 Pa. D. R. 602; Aliegheny v. Railway Co., 159 Pa. .411; Point Bridge Co. v. Pittsburgh Railways Co., 240 Pa. 105; Muncy Elec. Light, Heat & Power Co. v. People’s Elec. Light, Heat & Power Co., 218 Pa. 636.</p> <p>—The contract relied upon by plaintiff is not enforceable because it is for an unlimited period, and therefore against public policy: Turtle Creek Boro. v. Pennsylvania Water Co., 243 Pa. 415; Pennsylvania Railroad Co. v. Philadelphia County, 220 Pa. 100; Osborne v. San Diego Land & Town Co., 178 U. S. 22; Carson Lumber Co. v. St. Louis & San Francisco R. R. Co., 198 Fed. Rep. 311.</p>

<p>Wills — -Trusts—Buie against perpetuities — Construction — intention.</p> <p>1. Where the language of a will leaves a doubt whether the rule against perpetuities has been transgressed, the doubt may well be resolved in favor of the vesting of the remainders within the required time, especially when, upon a careful examination of the whole will such may reasonably be inferred to have been the intention of the testator.</p> <p>2. A testatrix, having two daughters and three granddaughters, children of a deceased child, devised her residuary estate “in trust ......during all the period of my grandchildren’s lives and the life of the. survivor of them” the .net income to be paid “to all my grandchildren in e4ual parts,” should any grandchild die leaving issue, such issue to take the parent’s share. “After the death of the last survivor of my grandchildren......for......my great-grandchildren until each arrives at the age of twenty-one years .......” By codicil testatrix directed that the net income be divided into five equal parts, and that one-fifth be paid to each of her two daughters for life, and the remaining three-fifths to the three daughters of her deceased daughter C., and to the survivors and survivor of them for life, and declared: “Desiring to do equal justice to all my children has induced me to make this alteration in my will.” Subsequently, testatrix by codicil, directed her trustee to páy one-fifth of the income to each of her daughters, naming them, and one-fifth to each of her granddaughters, naming them, “and the survivor of them during all of their and her natural life, then to my great-grandchildren as provided in the foregoing will.” “On the death of either of my aforesaid daughters or granddaughters without leaving issue, her or their share to be equally divided among the survivors, should either of the aforesaid daughters or granddaughters leave issue, such issue to take the parent’s share, share and share alike.” By a final codicil, testatrix provided that “should neither of my daughters or granddaughters leave surviving her a child or children to survive to twenty-one years of age to inherit and possess the principal of my estate after the death of my last child and grandchild — in that event I give, devise and bequeath the whole of my residuary and revisionary estate to......(charities).” One of testatrix’s granddaughters contended that the trust was invalid, as violating the rule against perpetuities. Held, the Orphans’ Court did not err in decreeing that the language of the will and codicils disclosed testatrix’s intention to provide life interests for the grandchildren named by her and not for others who might subsequently be bom, and that the rule against perpetuities had not been infringed.</p>

<p>Appeal, No. 23, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1910, No. 1925, on verdict for plaintiff in case of Virginia Grace Sulger v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Ormerod, P. J.</p> <p>Plaintiff’s husband, while a passenger upon an excursion train operated by the defendant railway company and while passing from the rear platform of a passenger coach to a baggage car fitted up as a refreshment car was thrown through the lurching of the train while taking a curve and was killed. There was no safe passageway into the refreshment car. Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $7,000, and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were refusal to direct a verdict for the defendant and refusal to enter judgment for defendant non obstante veredicto.</p> <p>The accident did not result from negligence imputable to the defendant: Trout v. Electric Co., 236 Pa. 506; Willis v. Armstrong County, 183 Pa. 184; Riedenauer v. McMahon, 240 Pa. 179; Thubron v. Contracting Co., 238 Pa. 443.</p> <p>The deceased was guilty of contributory negligence: Lerner v. Philadelphia, 221 Pa. 294; Hopkins v. Railroad Co., 225 Pa. 193; Camden & Atl. Railroad Co. v. Hoosey, 99 Pa. 492; Thane v. Traction Co., 191 Pa. 249; Rager v. Railroad Co., 229 Pa. 335; Shive v. Railway Co., 235 Pa. 256; Stewart v. Railroad Co., 146 Mass. 605.</p> <p>The defendant was negligent in failing to equip its cars with appliances for the protection of passengers: Baing v. Colder, 8 Pa. 479;; Kammerdiener v. Rayburn Twp., 233 Pa. 328; American Steamship Co. v. Landreth, 108 Pa. 264; Warren, y. Pittsburgh & B. By. Co., 243 Pa. 15; Boston & M. E. Co. v. Stock well, 146 Fed. Bepr. 505; Grand Trunk Bailway Co. y. Ives, 144 U. S. 408; Bobinson v. Chicago & Alton B. B. Co., 135 Mich. 254; Dennis v. Bailroad Co., 165 Pa. 624.</p> <p>The deceased was not guilty of contributory negligence: Penna. B. B. Co. v. Weber, 76 Pa. 157; Weiss v. Bailroad Co., 79 Pa. 387; Graham v. Penná. Co., 139 Pa. 149.</p>

Appeal, No. 31, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1913, No. 1680, on verdict for plaintiff, in case of Samuel Epstein, trading as Progressive Neck-wear Co., and Epstein Bros. v. Insurance Company of North America. Assumpsit on an insurance policy. Before Sulzberger, P. J. The opinion of the Supreme Court states the case. Verdict for plaintiff for $1,588.50 and judgment thereon. Defendant appealed.

<p>Appeal, No. 46, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., June T., 1911, No. 3034, refusing to take off nonsuit in the case of A. J. Antelo Devereux v. Philadelphia & Reading Railway Co.</p> <p>Trespass to recover damages for death of horses. Before Heydt, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered judgment of nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off nonsuit.</p> <p>cited: Railroad Co. v. Skinner, 19 Pa. 298; North Pennsylvania Railroad Co. v. Rehman, 49 Pa. 101; Ely v. Pittsburgh, Etc., Ry. Co.,. 158 Pa. 233; Strader v. Monroe Co., 202 Pa. 626; Hunterson v. Traction Co., 205 Pa. 568; Clark v. Lancaster, 229 Pa. 161; Cronmuller v. Evening Telegraph, 232 Pa. 14; Parker v. Matheson Motor Car Co., 241 Pa. 461; C. & N: W. Ry. Co. v. Smedley, 65 111. App., 644; Mooers v. R. R. Co., 69 Minn. 90; Bostwick v. Railway Co., 2 N. D. 440; Nicholson v. Chicago, M. & St. Paul Ry. Co., 137 S. W. Repr. 69; Alabama G-. So. R. R. Co. v. Hall, 133 Ala. 362; Slocumb v. C. B. & Q. R. R. Co., 57 Iowa 675; St. L. & S. F. R. R. Co. v. Carlisle, 75 Ark. 560; Richmond v. Sacramento Valley R. R. Co., 18 Cal. 351; Mo. Pac. R. R. Co. v. Wilson, 28 Kan. 637; Kentucky Cent. R. R. Co. v. Lebus, 14 Bush. 518; Galveston, H. & S. A. Ry. Co. v. Balkam, 20 S. W. Repr. 860; Piepke v. P. & R. Ry. Co., 242 Pa. 321.</p> <p>cited: Railroad Co. v. Skinner, 19 Pa. 298; No. Penna. Railroad ;Co. v. Rehman, 49 Pa. 101; Fisher v. Railroad Co., 126 Pa. 293; Clark y. Railroad Co., 24 Pa. Superior Ct. 609; Snyder v. Railroad Co., 205 Pa. 619; Scowden y. Railroad Co., 26 Pa. Superior Ct. 15; Thubron v. Contracting Co., 238 Pa. 443.</p>

<p>Real estate — Land damages — Opening street — Change of grade— Act of May 26,1891, P. L. 117.</p> <p>1. Tbe Act of May 26, 1891, P. L. 117, contemplates tbat all damages to abutting land consequent upon tbe improvement of a gtreet shall be assessed in a single proceeding.</p> <p>2. In 1894 a public street in a city was opened by ordinance and proceedings were instituted in the Court of Quarter Sessions of the county for the assessment of damages and a road jury was appointed, which after hearing evidence filed its report on November 15, 1894. By ordinance adopted in July, 1911, the curbing and paving of the street was directed by the city. The owner of a lot abutting on the street proceeded to curb and pave. The natural surface of the owner’s sidewalk was several feet above the established grade of the street and the owner was therefore obliged to grade it off so as to make the grade conform. In 1913, the owner presented a petition asking that viewers be appointed to assess the damages sustained in consequence of having been required to lower her sidewalk. Viewers were accordingly appointed, but subsequently, on motion of the city, the order appointing them was revoked and the original petition was quashed, for the reason that if petitioner had sustained any damages her claim for compensation should have been presented in the proceedings before the road jury in 1894, of which she admittedly had notice. Held, that under the provisions of the Act of May 26, 1891, P. L. 117, providing “That in all cases of assessment of damages for the opening or widening of any street or highway, the award of damages, if any, shall include all damages due to the grade at which said street or highway is to be opened or widened, and the plan attached to the report of the viewers awarding the damages shall have therein a profile plan showing the existing grade,” the action of the lower court was proper.</p>

<p>Appeal, No. 405, Jan. T., 1913, by plaintiff, from decree of C. P. No. 5, Philadelphia Co., June Term, 1913, No. 3837, in equity, sustaining demurrer in case of William Spink v. Philadelphia HydroElectric Company, a corporation, and the President, Managers and Company of the Schuylkill Navigation Company, a corporation.</p> <p>Proceeding in equity for an injunction. Before Martin, P. J.</p> <p>The facts appear in the opinion of the Supreme Court and in Spink v. Schuylkill Navigation Co., 240 Pa. 619.</p> <p>The plaintiff, inter alia, averred in his bill that the primary purpose for which the navigation company was incorporated was the maintenance of a waterway for transportation purposes, and that the right to sell water for power purposes was given by the State as an incident thereto, for the purpose of developing transportation business by encouraging and assisting the conduct of manufacturing enterprises along the line of the canal; that the company had been so managed that it had ceased to conduct any transportation business whatever over its waterways; and that the canal upon which plaintiff’s property abuts had become impossible of use for the passage of boats and barges, inter alia, because of the rapidity of the current of water flowing through it; that the navigation company was, and for many years past had been a water company, maintaining its works for the purpose of selling water and water power, and deriving its revenues from the sale of water to owners of manufacturing plants abutting on its canal, and that as such it was and became the duty of said defendant to treat alike and without discrimination all those who used and depended upon the water sold by said defendant for power purposes; that the defendant navigation company, in violation of its duty and the rights of plaintiff had discriminated against him (a user and purchaser of water for a long period of years) in favor of the defendant, the Hydro-Electric Company (a recent user of water), to whom it was attempting to sell all the surplus water power (of which there was a large quantity) produced by the works of the navigation company, and at a lower rate than plaintiff had been paying and was willing to pay; that the contract between the defendants was illegal and void as contrary to public policy and in violation of the charter powers of the navigation company; and that the Hydro-Electric Company acquired no right under it to obstruct the flow of water through the forebay of the premises of plaintiff, or to take for its own use water he had theretofore used and desired to continue to use and pay for, and which was necessary to the operation of the machinery installed in his premises in 1889 and continuously operated thereafter.</p> <p>The bill prayed for a decree declaring the navigation company to be a water company subject to the duties and obligations of a public service corporation; and directing the navigation company to furnish plaintiff with water necessary for the operation of his turbine wheel in the quantity heretofore taken by him, at a reasonable price, and at as low a price as defendant was furnishing water to other consumers; for an injunction requiring defendants to remove the obstruction limiting the amount of water supplied to plaintiff; a decree determining that the navigation company had no power to confer on the Hydro-Electric Company the right to install any device restricting the amount of water used by plaintiff; to determine a reasonable sum to be paid for the excess water; and for general relief.</p> <p>Error assigned was in sustaining the demurrer.</p>

Appeal, No. 100, Jan. T., 1914, by plaintiff, from judgment, of C. P. Philadelphia Co., No. 5, March T., 1911, No. 1861, refusing to take off non-suit in case of William A. Matlack y. Payette R. Plumb, incorporated. Trespass for personal injuries. Before Ralston,' J. The opinion of the Supreme Court states the facts. At the trial a judgment of nonsuit was entered which the court subsequently refused to take off.

<p>Negligence — Railroads—Passengers—Pall from platform — Death —N onsuit.</p> <p>A nonsuit was properly entered in an action to recover damages for the death of plaintiff’s husband, a passenger on defendant’s train, where it appeared that he had fallen from an unenclosed platform of a car upon which he had voluntarily taken his position while the train was in rapid motion and was killed either by the fall or by other passing trains; that the conductor was not informed of his disappearance until the train had gone a considerable distance, and within a minute or two of the time when it reached the next station and immediately made an investigation which disclosed nothing as to the occurrence; that while the train was not stopped for the purpose of searching for the missing passenger, immediate notice was given at the next station; that there were a number of tracks at the point where deceased fell, and that a large number of trains were constantly passing and repassing; and it did not appear that the train could have been stopped immediately upon discovering the accident without imperiling the safety of the other passengers.</p>

<p>Contracts — Assumpsit—Affidavit of defense — Sufficient averments.</p> <p>In an action by a municipality to recover the amount of a judgment obtained against it for negligence in permitting inflammable materials to be used in filling and grading a street, whereby fire was communicated to an adjoining property, where the statement of claim set forth a contract let by plaintiff to defendant for grading the street wherein defendant agreed “to be responsible for and pay all loss or damage to either person or property which may in any manner arise by reason of the prosecution of said work during the progress of the same,” and to “be responsible for any accident that may occur during the progress of or by reason of the work,” the court did not err in holding sufficient an affidavit of defense which alleged that the fire did not occur because of work done by defendant under his contract and was not caused by defendant’s negligence; that at the time of the fire the street was not in defendant’s exclusive possession, but that plaintiff had permitted its use as a public dump, and that inflammable matter had been placed thereon by other persons, and that the ground of the action in which a recovery had been had against plaintiff was in permitting inflammable rubbish to be placed on the street in close proximity to the property burned.</p>

<p>Appeal, No. 83, Jan. T., 1914, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1911, No. 4481, on verdict for plaintiff in case of Thomas F.. Cunningham, George F. Murray, James A. Cunningham and Joseph L. Cunningham, Trading as Cunningham and Murray, v. Fred. C. Dunlap, Chief of the Bureau of Water; Harry A. Mackey, Director of the Department of Public Works, and John M. Walton, City Controller of the City of Philadelphia, and The City of Philadelphia.</p> <p>Petition for writ of alternative mandamus to compel defendant to draw and execute a warrant in favor of the plaintiffs for the payment of $56,077.96 in accordance with ordinace of Councils of Philadelphia of November 10,1911. Before Davis, J.</p> <p>The facts are stated in the opinión of the Supreme Court and in Cunningham v. Dunlap, 242 Pa. 341. .</p> <p>Verdict for the plaintiffs for $43,351.37 plus damages for delay to the amount of $7,133.96, and judgment thereon. Defendants appealed.</p> <p>Errors assigned were certain points of charge.</p>

<p>Appeal, No. 120, Jan. T., 1914, by plaintiff, from judgment of Superior Court, Oct. T., 1913, No. 148, reversing judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1908, No. 856, on verdict for plaintiff in case of Deacon R. Taylor v. Philadelphia Rapid Transit Company.</p> <p>Appeal from Superior Court. See Taylor v. Philadelphia Rapid Transit Co., 55 Pa. Superior Court 607.</p> <p>The following opinion was filed by Orlady, J.:</p> <p>The plaintiff was driving his automobile on First avenue, a public highway in the suburbs of Philadelphia. This avenue connects with Tyson avenue at right angles and there ends. On the east side of Tyson avenue there is located, and in public use an open roadway with a width of sixteen feet. In the center of Tyson avenue, the defendant owns a private right of way on which it operates a double line of trolley tracks. This construction is similar to that of steam railroads; heavy rails are fastened to wooden ties which are imbedded in stone ballast, and the whole right of way is inclosed by a heavy curb, for protecting the ballasted track, and is from four to twelve inches higher than the roadway on its eastern side.</p> <p>The plaintiff approached Tyson avenue with the intention of turning north, but when he arrived at the intersection of the avenues, as he states: “when we got within one block of where we turned, we discovered that the tracks were a little elevated, and rather than risk an upset, I turned across the track and there I stalled the engine.” When asked, “Why, if this was a bright moonlight night, as you say, you were driving west on First avenue, and desired to turn north on Tyson avenue — why did you run your car on the road, track when there was plenty of room to the right?” — he answered — “For fear in making the turn when I discovered it — for fear of turning the machine over. If running at a moderate speed — which I was — I could turn my car in twelve feet.” The speed at which he entered upon Tyson avenue is fairly shown by the fact that the loaded five-passenger car mounted the curb and stopped when the front wheels had crossed both rails of the northbound track. He was traveling on an unfamiliar road in uncertain moonlight, on a down grade, and about to make a right-angled turn. He had before him an abrupt barrier of from four to twelve inches in height, and between it and him there was the sixteen-foot roadway. His surroundings required that special care should be exercised. After the car stalled, the passengers got out and one went back along the track of the defendant company to signal an approaching car, but failed to attract the attention of the motorman, and it crashed into the automobile and wrecked it. This action was brought to recover for the damages, and the trial resulted in a verdict for the plaintiff. A motion for a nonsuit was overruled, binding instructions for the defendant were refused, and the court declined on motion to enter a judgment for the defendant non obstante veredicto.</p> <p>The trial judge aptly described the situation in his charge — “Was it the carelessness of Mr. Taylor or the carelessness of the motorman, or the carelessness of both? If it was the carelessnes of both, the verdict must be for the defendant, because a man who is partly careless cannot get a verdict. If it was the carelessness of Mr. Taylor, of course he cannot get a verdict. If it was the' carelessness of the transit company alone, by the motorman, then the plaintiff is entitled to a verdict. The common sense of this case is the law of it.”</p> <p>It must he conceded that the plaintiff had no right to cross these inclosed trolley tracks, which were for the exclusive use of the defendant company, and that he was a trespasser through his own lack of care in approaching Tyson avenue at such speed that he could not make the turn into the sixteen-foot roadway at the side of the tracks.</p> <p>He took no proper precautions as he approached Tyson avenue, until, according to his own testimony, it was too late for him to make the turn and he did not even then stop his car, but took his chances in going over a double-track trolley line to get to the roadway on the other side, at a place where there was no crossing: Houston v. Traction Co., 28 Pa. Superior Ct. 374.</p> <p>Had it been a grade crossing it would have been his duty to approach it at such speed that the car would be under control as to stop it short of the track if the occasion demanded: Griffith v. Street Ry. Co., 214 Pa. 293.</p> <p>In March v. Traction Co., 209 Pa. 46, it was held “What is having horses (or an automobile) under control is a matter that varies with the circumstances. To come to a right-angled street crossing in the dark at a trot is in itself strong evidence of negligence. The plaintiff was bound to know, that it was a point of danger, and not only to keep such a lookout as would inform him of the approaching car, but also such control of his team as would enable him to stop on short notice of a threatened collision.”</p> <p>As we said in Van Winckler v. Morris, 46 Pa. Superior Ct. 142, “An inanimate body of the weight of a heavy automobile, will not take a flying jump over a curb on to a pavement unless propelled by exceptional force,” and from the plaintiff’s own showing he could have turned into the roadway if he had approached it at a less rate of speed. He was at the wheel and in full control of the machinery that regulated the speed. Every reasonable deduction from the plaintiff’s testimony leads to but one conclusion — that the accident was due to the speed, of the car when it entered upon Tyson avenue.</p> <p>The car tracks were on the property of the defendant company, and the plaintiff had no right thereon. Electric cars on their own property have a lawful right to go fast; rapidity of transit is no longer a mere convenience to the traveler, it has become a matter of vital interest to the general business of the community: Thane v. Traction Co., 191 Pa. 249; Gallagher v. B. & O. R. R. Co., 52 Pa. Superior Ct. 568. It is the settled law of this State that a railroad company has the right to the exclusive possession of its tracks except at crossings; and that the person who enters upon the tracks at any other point than at such crossings, is guilty of negligence per se: Bailey v. Lehigh Valley R. R. Co., 220 Pa. 516.</p> <p>The motorman on this express trolley car had no reason to anticipate the plaintiff’s presence on these exclusive tracks of the company, which were constructed to expedite the travel between a large city and a popular resort.</p> <p>There was no grade crossing over Tyson avenue where First avenue joined it. The plaintiff’s negligent management of his car placed it in the hazardous place, and without his carelessness the accident would not have happened. As said by Judge Strong in Philadelphia & Reading R. R. Co. v. Hummell, 44 Pa. 375, “If the use of a railroad is exclusively for its owners; or those acting under them; if others have no right to be upon it; if they are wrongdoers whenever they intrude, the parties lawfully using it are under no obligations to take precautions against possible injuries to intruders upon it. Ordinary care they must be held to, but they have a right to presume and act on the presumption, that those in the vicinity will not violate the laws; will not trespass upon the right of a clear track. Precaution is a duty only so far as there is reason for apprehension. No one can complain of want of care in another where care is only rendered necessary by bis own wrongful act. If the law declares, as it does, that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precautions against such acts, then the jury cannot say that a failure to take such is a failure in duty and negligence. The law does not require anyone to presume that another may be negligent, much less to presume that another may be an active wrongdoer. There is as perfect a duty to guard against accidental injury to a night intruder into one’s bed-chamber as there is to look out for trespassers upon a railroad where the public has no right to be.” This declaration has been frequently restated and approved. In Bailey v. L. Y. R. R. Co., 220 Pa. 516, it is held, “Where the public have the right to cross a railroad, the company in operation of its trains must exercise ordinary care to prevent accidents. This necessarily follows from the right of the public to cross the tracks. But at all other points, upon a rail: road where the company has the exclusive right to the use of its tracks, the person who enters upon the tracks becomes a trespasser, and the only duty imposed upon the company is to refrain from wantonly injuring the trespasser. In operating trains on its road at all other places than at crossings, the company’s employees in charge of the traiu have the right to assume that no person will enter upon the tracks, or if upon the tracks will immediately leave them upon the approach of the train. The train men may act on this presumption, and if a person trespassing on the tracks is killed, the company is not liable unless his death is caused by the wanton or willful conduct of those in charge of the train.”</p> <p>The same rule is declared in Eastburn v. Express Co., 225 Pa. 33; Gillespie v. Railroad Co., 226 Pa. 31. This court followed it in Gallagher v. B. & O. R. R. Co., 52 Pa. Superior Ct. 568, which is fairly summarized in the syllabus, “A railroad company has the right to the exclusive pQSsession of its tracks, except at. crossings, and a person .who . enters upon the tracks at any pther point than such crossings, is guilty of negligence per. se,” and we reversed the judgment recovered in the court below for damage to a wagon standing on the tracks of a railroad without authority or right, because, “It was not alleged’ in the plaintiff’s statement of claim, and there is no evidence that would sustain such a finding, that the defendant’s employees, knowing that the plaintiff’s wagon was on the track, recklessly or wantonly backed the train upon it.” It was wholly insufficient to warrant an inference of the element of willfulness or wantonness, or that reckless disregard of a manifest duty and of the consequences thereof as affecting the property of the de-; fendant, which is implied in the term gross negligence; Trexler v. B. & O. B. B. Co., 28 Pa. Superior Ct. 198, especially so when it is not suggested in the plaintiff’s statement or sustained in the evidence offered.</p> <p>The character of this defendant’s tracks and equipment make the same rule applicable here, and the plaintiff being on the tracks as a trespasser by his own negligent act, it not being alleged that there was wanton or reckless operation of the car, nor any evidence of such conduct, he cannot recover when his negligence not only contributed to the result, but was the sole cause of it.</p> <p>The judgment is reversed.</p> <p>Error assigned was the judgment of the Superior. Court.</p>

<p>Negligence — Master and servant — Spinning machine — Dangerous wire — Proximate cause — Issue not raised by pleadings — Judgment for defendant n. o. v.</p> <p>In an action of trespass to recover damages for the loss of plaintiff’s eye, it appeared that plaintiff, an expert spinner, was assisting the boss spinner under the direction of a machinist in repairing a spinning machine; that the machinist gave orders to cut a wire which interfered with the work, and that plaintiff was directed by the boss spinner to grab the wire, but before he could do so, the boss spinner cut it, and that one of the ends flew up, and struck plaintiff’s eye, inflicting the injuries complained of. The plaintiff’s contention that the wire was dangerous for use in spinning was not supported by evidence. No issue involving the negligence of the boss spinner was raised in the pleadings or at the trial. The jury found a verdict for plaintiff. The court in banc subsequently entered judgment for defendant n. o. v. Held, the act of defendant in providing a wire, was not the proximate cause óf the injury, and the judgment was affirmed.</p>

<p>Appeal, No. 391, Jan. T.,1913, by Harriet M. Rogers, from decree of O. C. Montgomery Co:, Sept. T.,1913, No. 52, dismissing exceptions to adjudication in Estate of Edward L. Rogers, Deceased.</p> <p>Exceptions to adjudication. Before Solly, B..J. .</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Harriet M. Rogers appealed.</p> <p>Error assigned was in dismissing the exceptions.</p> <p>The decision of the court below can only be sustained on the hypothesis that a partial intestacy could not be avoided by any reasonable construction of testator’s will: Keene’s Est., 221 Pa. 201; Fuller’s Est., 225 Pa. 626; Caslow v. Strausbaugh, 233 Pa. 69; Snyder v. Baer, 144 Pa. 278; Witmer v. Delone, 225 Pa. 450; Hardaker’s Est., 204 Pa. 181; Huber v. Hamilton, 211 Pa. 289; Henninger v. Henninger, 202 Pa. 207; Boyle v. Boyle, 152 Pa. 108; Freeman’s Est., 227 Pa. 154; Forsythe v. Forsythe, 108 Pp. 129; Smith v. Fulkinson, 25 Pa. 109; Nevins’s Est., 7 Pa. D. R. 761.</p> <p>The decision of the court below removes the control of the use of both the income and principal from the hands of the widow, and places the control in the hands of the two daughters, in violation of the plain intention of the will: Watson’s Est., 241 Pa. 271.</p> <p>If the contention of the appellant pret vails, the testator practically disinherits his own children which can be done only by an express devise, or by necessary implication: Corr’s.Est,, 202 Pa. 391; Espy’s Est., 207 Pa. 459.</p> <p>. Artificial canons of interpretation are only to be used in doubtful cases.; they are subservient to the great rule as to intent, and are made to aid, not to override it; Woelppers’ App., 126 Pa. .562; Arnold v. Muhlenberg College, 227 Pa. 321; Tyson’s Est., 191 Pa. 218; Gourf ley’s Est., 238 Pa. 62. The presumption that a power to consume passes a fee has been held not to prevail against the manifest.intention-of the. testator to the contrary s, Fassitt y. Seip, 240 Pa. 406; Gourley’s Est., 238 Pa. 62; Keown’s Est., 238 Pa. 343; Briggs v. Caldwell, 236 Pa. 369; Dickinson’s Est., 209 Pa. 59; Allen v. Hirlinger, 219 Pa. 56; Freeman’s Est., 220 Pa. 343.</p>

<p>Trusts — Trustees—Theft of securities — Liability of trustee for loss caused by theft — Surcharge—Erroneous surcharge.</p> <p>1. A trustee is not an insurer of trust funds against the possibility of loss, and all that is required of him is good faith and reasonable diligence.</p> <p>2. Where the funds of a trust estate are invested in securities not expressly authorized by the acts of assembly, there is not a breach of trust although there may be liability for loss by reason of depreciation.</p> <p>3. A trustee is not liable for securities taken by her attorney-at-law and converted to his own use where negligence on the part of the trustee has not been established, merely because the securities in question were not such investments of trust funds as were authorized by law.</p> <p>4 In a trustee’s account, stated by her executors, credit was claimed for the market value of securities of the trust estate. It appeared that the securities had been taken from the trustee’s safe deposit box by the trustee’s attorney-at-law, and converted to his own use; that for ten years the attorney had a key to the box in which the trust securities were kept and to another box containing the trustee’s individual securities; that the trustee had inquired concerning her attorney before retaining him, and that his reputation for honesty and financial responsibility in the community during the life of the trustee was unquestioned; and that the trustee had ample reason for the confidence which she reposed in him. The securities converted had been purchased by the trustee and were not of the class known as “legal” investments. An auditor appointed to examine the account did not find that the loss resulted from the trustee’s negligence, but surcharged the accountants for the market value of the securities, because they represented unauthorized investments. Held, the Orphans’ Court erred in confirming the auditor’s report in the absence of a finding that the loss resulted from the trustee’s negligence.</p> <p>5. In such case, the auditor allowed a credit claimed by the accountants for the amount of a mortgage collected by the trustee’s attorney but not turned over to her, and for the loss of money of the trust estate given the attorney for investment in mortgages on real estate and converted by him. The auditor found that the trustee was not negligent in entrusting these funds to her attorney. The substituted trustee for the defrauded estate contended that this finding was erroneous, because three years before the trustee’s death, the trustee discovered that her attorney had removed certain bonds from the box in which the trust securities were kept. It appeared that the interest on these securities was paid until the trustee’s death, and there was no evidence produced that the trustee had any reason to suspect that the attorney was guilty of wrong doing. It further appeared that it was usual that securities such as those which had been removed and such as the mortgage which had been collected, should be taken to the attorney’s office from time to time, and that the payments to the attorney of funds for investment, were made as such payments are usually made. Held, the Orphans’ Court did not err in confirming the report of the auditor in this respect.</p>

<p>Criminal law — Evidence—Confessions—Eying declarations.</p> <p>1. Where at the trial of an indictment for murder, a statement signed by the prisoner setting forth that it was made of his own free will and accord, that he had shot the deceased, but that the shooting was accidental, was ofEered in evidence, and where it appeared that no promise has been held out to defendant to induce him to make the statement; that defendant knew that it would be used against him, that he could read and write and that he was aware of the contents of the paper when he signed it, and where defendant did not deny that the statement was made voluntarily, the trial judge properly admitted the evidence.</p> <p>2. On the trial of a murder case the court did not err in admitting in evidence, on behalf of the Commonwealth, a statement of the deceased, a boy of twelve years, made two hours before his death, describing the circumstances under which he was attacked, where it appeared that after the boy was shot he was taken to a hospital where he was told by a physician that his condition was serious; that he was a Catholic and received from a priest the last rites of the church, which are only administered when danger of death is imminent; that after he was operated upon he asked his father to have him buried in the country in case of death; and the next day, after being told by the physician that he would not live much longer, he was asked to tell all he knew about the attack, and thereupon nodded his head and told his story.</p> <p>Murder — Degree of guilt — Murder of the first degree.</p> <p>3. A conviction of murder of the first degree, and sentence of death, were justified by the evidence, where it appeared that defendant had attempted to commit an unnatural crime upon deceased; that deceased had struggled to escape and defendant shot him in a vital part of the body, holding the revolver so close as to singe and blacken the flesh, and then ran away; and deceased died from the wound the next day.</p>

<p>Appeal, No. 357, Jan. T., 1913, by plaintiff, from order of C. P. No. 2, Philadelphia Co., March T., 1905, No. 424, refusing to take off nonsuit in case of Joseph A. Davis v. James B. Fleshman and Maurice H. Power, trading as J. B. Fleshman and Company.</p> <p>Assumpsit to recover a stake deposited with defendants in a gambling transaction. Before Wiltbank, J.</p> <p>The facts appear in the opinion of the Supreme Court and in Davis v. Fleshman, 232 Pa. 409.</p> <p>The trial judge entered a nonsuit, which the court in banc subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p> <p>cited: Sutterly v. Fleshman, 41 Pa. Superior Ct. 131; Davis v. Fleshman, 232 Pa. 409; Bauer v. Fabel, 221 Pa. 156; McAllister v. Hoffman, 16 S. & R. 146; Conklin v. Conway, 18 Pa. 329; Dauler v. Hartley, 178 Pa. 23.</p> <p>cited: Albertson v. Laughlin, 173 Pa. 525.</p>

<p>Appeal, No. 362, Jan. T., 1913, by The Commonwealth Title Insurance and Trust Company, substituted Trustee for Emma Eckert, under the will of Miers P. Livezey, deceased, from decree of O. C. Philadelphia Co., Oct. T., 1890, No. 215, dismissing exceptions to adjudication in Estate of Miers P. Livezey, deceased.</p> <p>Exceptions to adjudication. Before Gest, 3.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions in an opinion filed by Anderson, J. The Commonwealth Title Insurance and Trust Company, Trustee, appealed.</p> <p>Error assigned was in dismissing the exceptions</p>

Appeal, No. 386, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1904, No. 53, for defendant, entered upon the report of a referee in case of James L. Stevenson v. Commonwealth Title Insurance and Trust Company. Assumpsit on an express contract. Exceptions to report of K. Stuart Smith, Esq., referee.

<p>Municipalities — Contracts—Extra work — Appropriation—Mordí obligation — Taxpayers suit — Equity—Injunction.</p> <p>1. A city has no power to appropriate by ordinance sums of money claimed by a contractor tb be due him' for extra work, where there is no moral obligation to make such payment, and an ordinance attempting to make such appropriation will be restrained by a court of equity at the suit of taxpayers.</p> <p>2. There is no moral obligation resting upon a city to pay a contractor anything additional for alleged extra work done by him in the performance of his contract, where it appears from findings of fact, sustained by evidence, that the contractor was fully paid under the terms of his contract for everything which he did.</p> <p>3. A contractor made an agreement with the City of Philadelphia for the construction of a sewer. The prices fixed by the contract were for items of work completed and in place, with no additional allowance to the contractor for labor, dredging, pumping, or any work incidental to the building of the sewer. At the request of the contractor, the city assented to a- change in- the method of building a portion of the sewer. By the original contract, a section of the sewer was to be built under water, by lowering blocks of concrete upon pile heads. The contractor preferred to build a bulkhead between the two piers, pump out the water and build the sewer above water, or “in the dry.” This was accordingly done, and the contractor was paid the prices fixed in the contract for all material used in the construction of the sewer. The contractor brought suit against the city for the amount it cost him to build the bulkhead between the piers, for flumes and other incidental work necessary to build the sewer “in the dry,” and was nonsuited on the ground that the prices fixed in the original contract included all labor, machinery, materials, etc., necessary to the completion of the work, and that the contractor was not entitled to recover for work and material not entering into the construction of the sewer, but expended in incidental work in order to build the sewer “in the dry.” No appeal was taken from this decision, but thereafter councils passed an ordinance authorizing the appointment of a referee to determine whether anything was morally due the contractor, and upon the referee’s report that the amount of the claim was morally due, councils by ordinance made an appropriation for its payment. A taxpayer’s bill was filed to restrain the payment on the ground that the city was under no moral obligation to make it, and that the ordinance was invalid. Held, the court did not err in granting the relief prayed for.</p>

<p>Appeals, Nos. 396, 397, 398, 399, 400 and 401, Jan. T., 1913, and No. 5, Jan. T., 1914, by tbe Philadelphia Trust, Safe Deposit and Insurance Company, Trustee, for Josephine S. Lentz, Virginia A. Hill, Priscilla- T. Lippincott, Elizabeth C. Simpson, et al., from Decree of O. C., Philadelphia Co., Jan. T., 1888, No. 263, directing distribution in the Estate of James Simpson, Deceased.</p> <p>Adjudication of trustee’s account. Before Dallett, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Exceptions were filed to the adjudication by the Philadelphia Safe Deposit and Insurance Company, Trustee, and by Priscilla T. Lippincott, which exceptions were dismissed and the account confirmed.</p> <p>Error assigned was in dismissing exceptions to the adjudication and confirming the account.</p> <p>The testator expressed the clear intention that the descendants of his deceased sons by his first marriage should not share in the distribution of his estate: Herr’s Est., 28 Pa. 467; Sullivan v. Straus, 161 Pa. 145; McGovran’s Est., 190 Pa. 375; Everitt’s Est., 195 Pa. 450; Tucker’s Est., 209 Pa. 521; Habecker’s Est., 43 Pa. Sup. Ct. 86.</p> <p>■ — The testator left no doubt as to his intent, which was to equalize and not to disinherit: Stickle’s App., 29 Pa. 234; Fahnestock’s Est., 147 Pa. 327; Sigel’s Est., 213 Pa. 14; Hoyt’s Est., 236 Pa. 433. An heir at law is not to be disinherited without express devise or necessary implication, such implication importing, not natural necessity, but so strong a probability that an intention to the contrary can not be supposed: Bortner’s Est., 43 Pa. Hup. Ct. 429; Bender v. Dietriek, 7 W. & H. 284; Lehman v. Lehman, 215 Pa. 344; Grothe’s Est., 229 Pa. 186; Weber’s App., 17 Pa. 474 (1852); Carr’s Est., 202 Pa. 394, (1902).</p>

<p>Appeal, No. 365, Jan. T., 1913, by Julia Acly, from decree of O. C. Philadelphia Co., July T., 1911, No. 222, dismissing exceptions to adjudication in Estate of Helen Malcolmson Serrill Bertin, deceased.</p> <p>Exceptions to adjudication. The auditing judge, Anderson, J., stated the facts in part as follows:</p> <p>The testatrix, who was by birth an American citizen, had intermarried with a Frenchman, M. Bertin, and thus became a citizen of France. The marriage was under the French law of separate estates, by which married women retain the control of their property after marriage. She died domiciled at Paris, France, on February 29, 1910, and left her surviving her said husband and a daughter, Evelyn Serrill Bertin, and a last will and testament with codicil thereto, both dated July 29, 1904, and duly admitted to probate in this jurisdiction, and upon which ancillary letters of administration c. t. a., issued to the accountant July 8,1910.</p> <p>By her will, after reciting that she had, by deed bearing even date therewith, made a donation of the whole of her estate to her husband with the stipulation that in case of the existence of children at the time of the distribution of her estate the donation would be subject to the reduction required by French law, and stating “My testament which I am about to make has therefore no other object than to provide for the case in which I should die a widow without children,” she gave, inter alia, to Julia Acly the sum of one hundred and twenty-five thousand francs.</p> <p>By “codicil to my testament for the case in which I should die without having made provision concerning my daughter,” she provided that Julia Acly should have the care of her daughter and direct her education, and after providing for the payment of her expenses, etc., she gave Miss Acly one hundred and twenty-five thousand francs to be paid either at the death or on the day of the marriage of the said daughter with interest at legal rates from the date of her death to the day of the death or marriage of her said daughter.</p> <p>At the audit claim was made on behalf of Miss Julia Acly for payment of the said legacy of one hundred and twenty-five thousand francs with interest thereon, according to the terms of the codicil, out of the fund now accounted for in this jurisdiction. It was shown that the testatrix’s daughter had after testatrix’s death been declared a major or of age by her father under the provisions of French law before attaining the age of twenty-one years, and that she was married on December 10, 1912. It was also shown that all the debts of the testatrix in France had been paid.</p> <p>Objection to the claim, however, was made on the ground that the legacy in the will was dependent upon the testatrix dying a widow and without children, and that as testatrix was survived by her husband and child the legacy under the will never took effect; and that the legacy under the codicil was predicated upon the legatee’s having the care and education of testatrix’s daughter, and that she did not perform this duty. It was further. objected that under the circumstances of the case (the husband and child having both survived testatrix)., the legacy was invalid, under the French law. Counsel for the.daughter claimed the entire fund on her behalf as universal heir under the French law, and both he and counsel for the accountant asked that the fund be remitted, to the domicile for distribution under the laws of France, where all claims, might be properly and definitely adjudicated.</p> <p>It appeared that the claimant, who was a native of the State of New York, had resided for some years in New Jersey, went to France, came back to New Jersey, and subsequently at the instigation of the testatrix returned to France and acted as governess for her daughter for some years, and then established herself in Paris taking apartments there for the purpose of receiving and edm eating young American ladies who might come to that country for that purpose. She was in France prior to the making of the will, at the time of its execution, resided there at the time of testatrix’s death, and for. some time thereafter. She subsequently came back to New Jersey and reestablished a residence in that state, where she now resides.</p> <p>The auditing judge decided that the fund for distribution should be remitted to the jurisdiction of the domicile for such action as the court of France might take as to the claim, subject however, to an agreement by counsel representing the universal heir that a fund sufficient to meet the legacy should be retained in the hands of the accountant to await the determination of the question by the French court.</p> <p>Exceptions to the adjudication were dismissed by Lamorelle, J. The accountant appealed.</p> <p>Errors assigned were in dismissing exceptions to the adjudication and the decree confirming the adjudication.</p> <p>Prior to the Act of March 31,1905, P. L. 91, where there were no creditors of the decedent remaining unsatisfied at the decedent’s domicile, the courts in ancillary proceedings in Pennsylvania determined disputed questions, of foreign law, and made distribution to claimants appearing in the character of creditors, legatees or next of kin, including claimants who were citizens of sister states of the union: Dent’s App., 22 Pa. 511; Del Valle’s App., 5 Atlantic 111 (affirming 17 W. N. C. 30); Ficken’s Est., 16 Philadelphia 269; Fox’s Est., 15 Dis. Repr. 470; Weaver’s Est., 4 Pa. D. R. 260; Parker’s. App., 61 Pa. 478; Welles’s Est., 161 Pa. 218.</p> <p>Under the Act of 1905 and the Federal Constitution, a citizen of another state is entitled to claim the privilege granted by the Act of 1905 to citizens of Pennsylvania or presenting his claim as legatee or creditor and of receiving distribution in the ancillary proceeding in Pennsylvania, instead of being sent to a foreign country to have Ms right as legatee or creditor adjudicated: Loftus v. F. & M. N. Bank, 133 Pa. 97; Chambers v. Baltimore & Ohio R. R. Co., 207 U. S. 142; General Oil Co. v. Crain, 209 U. S. 211; International Text Book Co. v. Pigg, 217 U. S. 91; Blake v. McClung, 172 U. S. 239; Cole v. Cunningham, 133 U. S. 107; Harris v. Balk, 198 U. S. 215; Morgan v. Neville, 74 Pa. 52; Clark v. Toby Valley Supply Co., 14 Pa. C. C. 344; Knight v. West Jersey Railroad Co., 108 Pa. 250.</p> <p>It was a proper exercise of the discretion vested in the Orphans’ Court to refer the determination of the validity of appellant’s claim to the court of the domicile of testatrix: Brown v. Brown, 1st Barb. Chancery 189; Harlan’s Est., 16 Pa. County Court Reports 51; Ruebsam’s Est., 26 W. N. C. 311; Lawrence v. Kitteridge, 21 Conn. 576.</p>

<p>Appeal, No. 19, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., March T., 1911, No. 4184, entering compulsory non-suit in case of Frederick Organ, by his Father and Next Friend Daniel E. Organ and Daniel E. Organ, in his own right, v. Henry A. McCleman and William G. McCleman, Trading as H. A. McCleman and Brother.</p> <p>Trespass for personal injuries. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was the refusal of the court to take off the compulsory nonsuit.</p>

<p>Negligence — Municipalities—Ice on sidewalk — Pedestrian—Notice of condition — Evidence—City ordinance — Case for jury.</p> <p>1. In an action against a municipality to recover damages for personal injuries sustained by falling on an icy pavement, tbe ease was properly submitted to tbe jury and a verdict for tbe plain1 tiff will be sustained where it appears that the ice had been on the pavement for a week or ten days prior to the accident, although the plaintiff, a man of advanced age had testified in depositions previously taken that at 3 o’clock on the afternoon of his fall the ice was soft, and that at the time of the accident, which occurred on his return trip two and a half hours later, the pavement was frozen over with water which came from a terrace and where the trial judge charged the jury that unless they found from all the testimony that the icy condition of the pavement was dangerous and had been so for so long a time that the city was presumed to have had notice of it, there could be no recovery, and further that if the accident had been caused by ice that had formed on the day of the accident there could be no recovery.</p> <p>2. In such case it is not error to admit in evidence an ordinance requiring the removal of snow from the sidewalks and gutters in all parts of the city.</p>

Appeal, No. 20, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., June T., 1912, No. 1606, on directed verdict for the defendant in case of Consolidated Dressed Beef Company v. City of Philadelphia. Assumpsit for meat sold and delivered by plaintiff to the defendant city under a duly authorized contract.

<p>Appeal, No. 2, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1912, No. 3246, on verdict directed for plaintiff in case of Central Market Street Company v. North British & Mercantile Insurance Company of London and Edinburgh.</p> <p>Assumpsit on a fire insurance policy. Before Sulzberger, P. J.</p> <p>The opinion of. the Supreme Court states the facts.</p> <p>The court directed a verdict for the plaintiff. Defendant appealed.</p> <p>Errors assigned were, among others, the charge of the court and in refusing defendant’s motion for judgment n. o. v.</p> <p>The keeping of inflammable films in any part of the building, whether rented by the plaintiff or not, was a violation of the warranty and avoided the policy.</p> <p>The keeping of the excluded films on the premises avoided the policy whether the defendant had knowledge of the use of the inflammable films contrary to the warranty in the policy and took no action thereon, or not: Insurance Company v. Slockbower, 26 Pa. 199; Buckley v. Garrett, 47 Pa. 204; Cumberland Valley Mutual Protection Company v. Mitchell, 48 Pa. 374; Stauffer v.Insurance Company, 150 Pa. 531; Wilson v. Insurance Company, 174 Pa. 554.</p> <p>¡The warranty was not violated by the storage of celluloid films in a part of the building not occupied by the insured: Allemania Fire Insurance Company v. Pittsburgh Exposition Society, 10 Central Repr. 292; Northwestern Mutual Life Insurance Company v. Fire Insurance Company, 40 Wis. 446.</p> <p>The warranty was not violated by the assured or any person under its control: Farmers’ & Mechanics’ Insurance Company v. Simmons, 30 Pa. 299.</p> <p>The defendant company knew at the time it accepted the assured’s premium that celluloid films were stored in the building, and is estopped from setting up this fact as a breach for warranty: Caldwell v. Fire Association of Philadelphia, 177 Pa. 492; ■ Davis v. Insurance Co., 5 Pa. Superior Ct. 506; Bateman v. Insurance Company, 189 Pa. 465; Brumbaugh v. Insurance Company, 20 Pa. Superior Ct. 144; Porter v. Insurance Company, 29 Pa. Superior Ct. 75; Damms v. Insurance Company, 226 Pa. 358; Clymer Opera Company v. Insurance Company, 238 Pa. 137.</p>

<p>Appeal, No. 276, Jan. T., 1913, by John H. Davis, from judgment of C. P. Schuylkill Co., Nov. T., 1911, No, 297, on verdict for plaintiff in case of Charles Weller v. Ellsworth Colliery — John H. Davis.</p> <p>Trespass to recover damages for injuries to the surface of land caused by coal mining operations. Before Brumm, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,600.00 and judgment thereon. John H. Davis appealed.</p> <p>Errors assigned were various rulings on evidence, instructions to1 the jury and answers to points referred to in the opinion of the Supreme Court, and the third assignment which was as follows: . .</p> <p>3. The court erred in its charge to the jury, as follows: ......“To enable you to get at the truth I have said this for the purpose of informing you of the fact that your own eyes and your own observation of what you saw is the best possible evidence that can guide you. Sworn testimony as a rule cannot be relied upon thoroughly, because there is always more or less contradiction — honest men differ — but what you see, that is within your own personal knowledge, coming to you especially in your official capacity as jurymen, is the best possible evidence to guide you gentlemen in getting at the truth.”</p>

Appeal, No. 690, Miscellaneous Docket No. 2, 1914. Original Bill in Equity by Frederick T. McGuire, a citizen and a taxpayer of the City of Philadelphia, in his own behalf and in behalf of such citizens and taxpayers of said city as may join herein, v. The City of Philadelphia, a Municipal Corporation of the Commonwealth of Pennsylvania of the first class, and Rudolph Blankenburg, Mayor, John M. Walton, Controller, and William McCoach, Treasurer of the said city.

<p>Municipalities — Increase of indebtedness — Increase based on taxable personal property — Election—Notice of election — Publication of amount of indebtedness — Act of June 17,1913, P. L. 507— Constitutional law — Title of acts.</p> <p>1. The Act of June 17, 1913, P. L. 507, imposing taxes upon certain classes of personal property for city and county purposes in cities coextensive with counties, is constitutional. It is not in violation of Article III, Section 3, of the Constitution, providing that “no bill, except general appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.”</p> <p>2. The provisions of the said Act of June 17, 1913, P. L. 507, are effective to increase the borrowing capacity of the City of Philadelphia by seven per centum of the last assessed valuation of personal property, preceding the date of the loan.</p> <p>3. The statutory requirement relating to public notice to be given by advertisement of an election to be held for the purpose of submitting to electors the question of a proposed increase of municipal indebtedness, is that it shall contain, inter alia, “the amount of the existing debt” of the municipality. This provision is to enable the elector to act not only intelligently but prudently in casting his ballot for or against a- proposed increase of the indebtedness of his municipality, and it is mandatory upon the public authorities.</p> <p>4. The corporate authorities of the City of Philadelphia, in giviug public notice of an election to be held for the purpose of authorizing an increase of indebtedness, deducted from the gross indebtedness of the city a sum which had been assumed by a school district coincident with the city, and published only the balance of the debt after such deduction. Held, this deduction was unlawfully made, and, therefore, the publication of the amount of the indebtedness was inaccurate, and an injunction was issued restraining the election.</p> <p>Mr. Justice Elkin dissents.</p>

<p>Appeal, No. 84, Jan. T., 1914, by Samuel J. Gottesfeld, from decree of C. P. No. 1, Philadelphia Co., March T., 1913, No. 5762, ordering his name to be stricken from the roll of attorneys In re Samuel J. Gottesfeld.</p> <p>Petition for the disbarment of an attorney. Before Pattebson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted the prayer of the petition. Samuel J. Gottesfeld appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Wills — Failure in revoking instrument — Residuary bequests— Dependent relative — Revocation—Construction.</p> <p>1. Where the failure of the dispositive part of a revoking instrument is due to a defect in the instrument, the revocation is inoperative; but where such failure occurs because of extrinsic circumstances, the revocation will prevail.</p> <p>2. A testator by will made pecuniary and other gifts to various members of his family and appointed executors whom he made his residuary legatees. He further provided that should his estate be insufficient to pay all his legacies, certain of the latter should be scaled down. By codicil, testator declared that “having had an expert accountant assist me in making an inventory .of my estate, and finding that after all the bequests contained in my will, and several codicils there may remain about $150,000 of my undistributed estate. And being desirous of using the residuary estate in some manner that will alleviate the sufferings of the indigent, deserving and aged poor, I desire the estate to be used for such purpose.” The codicil concluded: “In order to carry out the provisions of this codicil, clause No. 29 of my will dated July 5, 1910, is hereby abrogated. The clause referred to relates to the appointment of Max J. Stem and Lieut. Walter M. McFarland as the residuary legatees of my original will. The fund thus established is to be chartered, if necessary, in the State of Pennsylvania and is always to be designated ‘Estella Polis Melville Charity.’ ” The charity contemplated failed because of the death of the testator within thirty days after the execution of the codicil. The executors contended that the revocation of the residuary bequest to them was conditioned upon the efficiency of the charitable bequest. The Orphans’ Court decided that the residuary bequest to the executors had been revoked absolutely, and awarded the residue to testator’s heirs and next of kin. Held, no error.</p>

<p>Equity — Nuisances—Hospital—Noises—Injunction.</p> <p>1. Although a hospital is not in itself a nuisance, its management may cause it to become one'; and where the existence of the nuisance is unequivocally established, the status of the hospital as a charitable institution, will not constitute any justification for the continuance of such nuisance or interpose any defense to the abatement thereof.</p> <p>2. If unusual and disturbing noises regularly or frequently emanate from a hospital building situated in close proximity to a dwelling house, and are of such a character as to affect the comfort of the household and the peace and health of the family, and are calculated to destroy the comfortable enjoyment of the home, a court of equity will prevent the continuance of such ail injury.</p> <p>3. In a suit in equity to enjoin defendant from conducting its hospital in such a manner as to injure plaintiffs, it appeared that plaintiffs owned a house having doors and windows facing the hospital, and from nine to twelve feet distant therefrom;' that noises emanated almost daily from the hospital, consisting of shrieks, groans, moans, and yells of men and women and the cries of children, in fright or pain, which disturbed the family at meals, ■ wakened them at night, kept them awake, made them nervous and disturbed their comfort and happiness, and that of guests invited to their house, and depreciated the value of their property. Most of the objectionable sounds came from an emergency operating room which faced plaintiffs’ house. It further appeared that defendant allowed persons occupying rooms in the hospital to throw refuse upon plaintiffs’ property. Held, the court did not err in awarding an injunction restraining defendant from using its buildings as a hospital during the continuance of the existing internal construction, and while the emergency operating room was maintained in close proximity to complainants’ residence, and in restraining defendant from permitting refuse to be thrown from its building upon plaintiff’s property.</p> <p>Equity practice — Amendment to bill.</p> <p>4. An amendment to a bill in equity for an injunction restraining defendant from maintaining the emergency operating room of its hospital in close proximity to complainants’ dwelling house, was properly allowed where the amendment averred that the defendant allowed persons occupying rooms in its hospital to throw refuse upon plaintiffs’ property, and it did not appear that the defendant was in any way prejudiced or injured by its allowance; and the fact that by reason of defendant’s counsel failing to carefully examine the amendment, no answer was filed to certain facts averred therein, is immaterial where any possible prejudice to defendant in this respect was avoided by the agreement of complainants’ counsel that the answer as filed should be considered as a denial of the facts contained in the amended bill.</p>

<p>Appeal, No. 220, Jan. T., 1913, by Warren H. .Fenstermacher, Administrator of Isaac S. Spatz, Deceased, who was Trustee of Emma S. Mohn under the Will of John H. Spatz, Deceased, from decree of O. C. Berks Co., March T., 1912, No. 37, dismissing exceptions to adjudication in Estate of John H. Spatz, Deceased.</p> <p>Exceptions to adjudication. Before Blano, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Warren H. Fenstermacher, administrator, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 63, Jan. T., 1914, by defendant, from decree of C. P. Susquehanna Co., Aug. T., 1913, No. 24, In Equity, awarding injunction, in case of Kenneth D. Johnston v. The Delaware, Lackawanna & Western Railroad Company.</p> <p>Bill in equity for an injunction. Before Terry, P. J., specially presiding.</p> <p>Tlie opinion of the Supreme Court states the facts.</p> <p>The court awarded the relief prayed for. Defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to va- • rious findings of fact and law of the trial judge, and the decree, of the court.</p> <p>The resolution of April 19, 1910, was an appropriation of the plaintiff’s land: Scranton Gas & Water Co. v. D., L. & W. R. R. Co., 225 Pa. 152; Williamsport, &c., R. R. Co. v. Philadelphia, &c., R. R. Co., 141 Pa. 407; Fischer v. R. R. Co., 175 Pa. 554; Davis v. By. Co., 114 Pa. 308; Johnston v. Callery, 173 Pa. 129; Johnston v. Callery, 184 Pa. 146.</p> <p>—The proceedings to condemn were irregular and void: Jones v. Tatham, 20 Pa. 398; Williamsport, Etc., R. R. Co. v. Railroad Co., 141 Pa. 407; Kaufman v. Railroad Co., 210 Pa. 440; Davis v. Railway Co., 114 Pa. 308; Wilson v. Railroad Co., 222 Pa. 541; Studebaker v. Gas Co., 7 Pa. Superior Ct. 641; Penna. R. R. Co. v. Duncan, 111 Pa. 352; Tyrone Gas & Water Co. v. Tyrone Boro., 195 Pa. 566.</p>

<p>Gifts — Gifts inter vivos — Deed of Trust — Wife’s power over her personal property — Bights of husband — Fraud—Gifts testamentary in character — Equity.</p> <p>1. Under the present legislation in Pennsylvania, a wife has the same power of disposal, of her personal estate during coverture that her husband has of his personal property and she can create a valid trust of her separate personal estate by deed of trust during her life without the joinder or consent of her husband.</p> <p>2. If a gift by a husband or wife during the donor’s life is absolute and accompanied by a transfer of possession with intent to divest the donor of ownership, although the obvious effect is to defeat the husband’s or wife’s succession to the property at the donor’s death, the gift is not fraudulent and therefore invalid.</p> <p>3. The good faith required of a donor or settlor in making a valid disposition of such donor’s property during life does not refer to the purpose to affect the wife or husband hut to the intent to divest the donor of the ownership of the property.</p> <p>4. A married woman made a deed of trust naming as trustee her mother with a provision for the substitution of a trust company in case of the mother’s death unless the settlor should appoint another successor. The deed conveyed a part of the settlor’s separate personal estate to the trustee in trust to collect the income and pay it to the settlor for life, and after her death to pay an annuity to her husband so long as he remained unmarried, an annuity to a niece, the balance of the income to the trustee herself, and after her death the balance of the income equally to two brothers of the settlor, on their death to their issue and a part to charity, and if no minor issue of the brothers should survive them, then the entire estate to charity. The deed gave the trustee power to change investments, but not to invest in other than legal securities except during the life of the settlor, without her consent in writing, and relieved the trustee of liability from loss of investments thus. made. The settlor reserved the right at any time during her life in her discretion to rescind, revoke or annul the instrument and the trust in whole or in part and to change or amend its terms and provisions, which action should be evidenced by an instrument in writing. After the settlor’s death her husband filed a bill in equity averring that the deed was made not in good faith but to defraud the husband of his marital rights, that it was testamentary in character and did not constitute a valid gift and that therefore the personal property formed part of the estate of the wife and should be turned over to her personal representative and that the trustee of the brothers and niece of the wife had joined in a scheme to defraud the husband of his marital rights. There was no evidence produced to sustain the alleged collusion and fraudulent scheme and the testimony went to prove that immediately after the execution and delivery of the deed the settlor parted with legal title and the physical possession of the entire corpus of the trust fund and thereafter exercised no dominion or control whatever over the trust estate other than as specifically provided in the deed itself. There was further proof that the settlor had taken legal advice in connection with the making of the deed. The referee found that there was no evidence that would justify a finding that the deed was gotten up as a subterfuge to permit the settlor in her life time to possess and control the estate and at the same time to be free of the post mortem claims of her husband and that the settlor fully intended to and actually did assign and deliver to the trustee the property in question for the purposes set forth in the deed and that under the advice of counsel she endeavored to effectuate her intentions by fully complying with the requirements of law, and in conclusion held that the deed of trust was valid and that the trustee held title for the purposes of the trust and not subject to any claim of the plaintiff as the surviving husband of the settlor. The findings of the referee were approved by the court below. Upon appeal, held no error.</p> <p>5. In such case it was held that the question as to whether or not the plaintiff husband acquired his knowledge of the declaration of the trust before or after the death of the wife was immaterial, and it was further held that such a gift was not governed by the rule forbidding a secret voluntary conveyance of her property by a woman in contemplation of marriage without the consent of her intended husband.</p> <p>6. That the settlor reserved to herself the entire income from the trust property during her life, that the estates of the remaining cestui que trust were not to take effect in possession or enjoyment until after her death, and that there was a power of revocation reserved in the instrument were not sufficient to avoid the deed as a valid declaration of trust and to show that it was intended as a disposition of property to take effect after death.</p>

<p>Constitutional law — Title of act — Act of June 7,1911, P. L. 673 —Supplement to former act.</p> <p>1. When an act of assembly is a supplement to a former act, if the subject of the original act is sufficiently expressed in its title, and the provisions of the supplement are germane to the subject of the original, the general rule is that the subject of the supplement is covered by a title which contains a specific reference to the original by its title, giving the date of its approval and declaring the act to be a supplement thereto.</p> <p>2. The title to the Act of June 7,1911, P. L. 673, reading, “An Act being a further supplement to an act, entitled, ‘An act to provide revenue by taxation’; approved the 7th day of June, A. D. 1879, amending the amendment of the supplement thereto which became a law on the first day of June, A. D. 1889, which amendment herein amended was approved the 8th day of June, A. D. 1891, relating to the tax on capital stock, approved the 8th day of June, 1893, relating to taxing bonds, mortgages, and other securities,” is sufficient** comprehensive to cover the provisions of the act.</p> <p>Taxation — Constitutional taw — Corporations—Joint stock companies — Limited partnerships — Capital stock — Tax.on securities— Insurance fund of trust company — Special legislation — Bight of policy holder to vote — Double taxation — Act of June 7,1911, P. L. 673.</p> <p>3. The provision of the Act of June 7, 1911, P. L. 673, that securities owned by corporations, limited partnerships or joint stock associations, which are held in any other manner than for “the whole body of stockholders or members, as such” shall be taxed as though they belong to individuals, does not create an unlawful classification, although it may cast a heavy burden upon those who fall within its scope as compared with others not in the same class. The classification cannot be set aside on the ground that it affects one corporation alone, where there is no finding upon the record or evidence to justify the conclusion that it is the only person to which the act can apply.</p> <p>4. In the Act of June 7, 1911, P. L. 673, providing “that corporations, limited partnerships or joint stock associations liable to tax on capital stock, shall not be required to pay any further tax on the mortgages, bonds and other securities owned by them and in which the whole body of stockholders or members as such have the entire equitable interest in remainder; but corporations, limited partnerships and joint stock associations owning or holding such securities, as trustees, executors, administrators, guardians, or in any other manner than for the whole body of stockholders or members thereof as sole equitable owners in remainder, shall return and pay the tax imposed by this act upon all securities so owned or held by them, as in the case of individuals,” the word “stockholders” applies to corporations, and the word “members” to partnerships or joint stock associations. “Equitable interest in remainder” does not refer to a strict equitable title, but means the right to have a division according to natural right and justice. The word “remainder” is meant to signify the part remaining after all prior lawful obligations are satisfied.</p> <p>5. The meaning of the Act of 1911 is that every concern which falls within its scope must pay a direct tax upon all securities owned by it which do not belong to capital; that is, which are not a part of its capital to such extent and in such a sense that its stockholders, or members who stand toward it in a relation like stockholders, are the sole owners of a right to an equitable distribution thereof, i. e., of so much of the fund which embraces the securities as may remain after all expenses and debts properly chargeable thereto have been satisfied.</p> <p>6. Where a corporation was authorized by the act incorporating it, to carry on thé business of life insurance and that of a trust company, the act contemplating that the life insurance business be conducted as separate and apart from its other business, and where the stockholders as such derive no profit from the insurance business, but the net profits from the insurance business aTe held for and to be divided among the policy holders only, the insurance securities are held for the policy holders as the equitable owners in remainder, and not “for the whole body of stockholders or members, as such,” and are therefore taxable under the Act of June 7, 1911, P. L. 673.</p> <p>7. In such case the fact that each policy holder, who has paid a certain amount in premiums, is entitled to one vote at the election for directors of the corporation, is immaterial.</p> <p>8. In such case, where the securities have never been directly taxed, the fact that the State authorities gave the possession of the securities some consideration as an element in "determining the value of the capital stock, does not amount to double taxation. Double taxation within proper limitations is not beyond the power of the legislature to impose.</p>

<p>Wills — Construction — Life estate — Rule in Shelley’s Case— “Children" — "Issue.’’</p> <p>1. The rule in Shelley’s Case is not a rule of construction but of law and is never applied until the meaning of the testator is first ascertained. If the words of the will show that the testator intended the remainderman to take directly from him and not by inheritance from the devisee of the life estate, then the rule has no application. On the other hand if they show a contrary intention, the rule applies.</p> <p>2. The rule in Shelley’s Case ordains that when a life estate is devised to a person and in the same will an estate is limited mediately or immediately to his heirs in fee or in tail, the word heirs is a word of limitation not of purchase, and the devise to the first-taker is enlarged to a fee. When the technical words suggested in the rule, “heirs,” for a fee simple, and “heirs of his body,” for a fee-tail, appear without more, then no further inquiry is permitted, and the rule applies; but where other words are used, such as children, or the like, and the rule is sought to be applied by analogy, then the burden rests upon him who claims them to be the equivalent of “heirs” or “heirs of his body” to show they were so intended; and this must be demonstrated from their context or other relevant language in the will, Judged according to proper and appropriate rules of construction.</p> <p>3. The general rule is that neither superadded words of limitation nor of distributive modification, standing alone, will be accepted as enough to overcome precedent words sufficient to give a fee; but the combination of the two will usually be taken as sufficient proof of an intent to create a new line of descent in the daughter C my house and lot known as No. 860 North 19th Street, remainderman and to make them purchasers from the testator.</p> <p>4. Testator provided: “I give, devise and bequeath to my for and during the term of her natural life, and upon the death of my said daughter, then I give, devise and bequeath my said house to the children of my said daughter share and share alike and the issue of said children who may then be deceased, such issue to take the share only that their deceased parent would have taken if living at that time, provided, however, that in the event of my said daughter C, leaving no issue at the time of her death, she shall have the right to will said house to whomsoever and in what manner soever she pleases.” Upon a case stated to determine the interest of the daughter under the devise, /teZá, that the rule in Shelley’s Case did not apply and that the daughter only took a life estate in the property.</p>

<p>Appeal, No. 16, Jan. T., 1914, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1913, No. 399, for plaintiff on case stated in case of Charles M. Lea v. Morris Sanson.</p> <p>Case stated to determine title to property. Before Davis, J.</p> <p>In addition to the facts set forth in the opinion of the Supreme Court, it appeared from the case stated that Charles M. Lea and Charlotte Augusta, his wife, agreed to sell to Morris Sanson, the defendant, the property in dispute; that when plaintiff tendered a deed, defendant refused to accept the same, alleging that the grantors had not a title in fee to the property.</p> <p>It was stipulated in the case stated that if the court was of the opinion that the plaintiffs could convey a good and marketable title in fee simple, judgment should be entered for the plaintiff; otherwise to be entered for the defendant. The court entered judgment on the case stated for the plaintiff. Defendant appealed.</p> <p>Error assigned was in entering judgment on the case stated in favor of the plaintiff.</p>

<p>Appeal, No. 116, Jan. T., 1914, by plaintiffs, from judgment of C. P. Luzerne Co., No. 470, Dec. T., 1913, on case stated in case of John Harrison, Elizabeth A. Burnett, Henrietta Fosenkrant, Jane Bechtold, James Harrison, and Elizabeth Harrison, Guardian ad litem of Edward Harrison, Anna Harrison, Mable Thomas Harrison, Lucy Harrison and Jessie Harrison, being all the heirs of Mathew Harrison, deceased, v. A. H. Harris.</p> <p>Case stated to determine the title to real estate. Before Woodward, J.</p> <p>The opinion of the Supreme Court states the case.'</p> <p>The court entered judgment in favor of the defendant on the case stated. Plaintiffs appealed.</p> <p>Error assigned was in entering judgment in favor of the defendant upon the case stated.</p>

<p>Equity — Equity jurisdiction — Boundary dispute — Ejectment — Certification to law side.</p> <p>1. Where the question at issue between the parties is one of disputed title and depends upon the true boundary lines between their adjacent properties, the proper remedy is ejectment, and where such issue is raised by bill in equity and answer thereto it is proper for the court to certify the ease to the law side.</p> <p>2. On the hearing of a bill in equity the court did not err in certifying the case to the law side where the bill averred that the plaintiff company leased to the defendant company certain coal lands, and that after a dispute as to the proper- lines between the leased lands and other lands of the plaintiff a division line was agreed upon and was recognized for many years by the defendant company, but that recently the defendant threatened to disregard the line and enter upon and mine coal beyond the line and on the plaintiff’s premises, and prayed that the defendant be restrained from entering or trespassing upon plaintiff’s lands; where the answer denied the jurisdiction of the court, averring possession of the premises in the defendant and setting up other matters of defense which raised questions of fact for a jury.</p>

<p>Appeal, No. 65, Jan. T., 1914, by the City of Philadelphia, from decree of C. P. No. 5, Philadelphia Co., Dec. T., 1913, No. 4454, in equity, awarding an injunction in case of John Thiel v. The City of Philadelphia, Appellant, Rudolph Blankenburg, Mayor, John M. Walton, Controller, William McCoach, Treasurer, Joseph S. Neff, Director qf the Department of Health and Charities, Alexander M. Wilson, Acting Director of the Department of Health and Charities; John A. Yogleson, Chief of the Bureau of Health, John Molitor and Russell R. Barrett, et al., employees of the Department of Health and Charities.</p> <p>Bill in equity for an injunction. Motion for preliminary injunction. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded a preliminary injunction. Defendants appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 259, Jan. T., 1913, by defendant, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1910, No. 2280, entered on a verdict in quo warranto proceedings, in case of The Commonwealth of Pennsylvania, ex rel. M. Hampton Todd, Attorney General, v. The Greek Catholic Church of St. Michael The Archangel.</p> <p>Quo warranto to test the right of defendant to exercise a corporate franchise. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for The Greek Catholic Church (Congregation) of St. Michael The Archangel by direction of the court, and judgment thereon. The Greek ■ Catholic Church (Brotherhood) of St. Michael The Archangel, appealed.</p> <p>Errors assigned were various rulings on evidence and various instructions to the jury.</p>

<p>Negotiable' instruments — Accommodation endorsers — Corporations — Ultra vires acts — Bona fide holders — Presumption of validity —liability of corporations — Act May 16,1901, P. L. 19 h-</p> <p>1. A corporation having the general power to issue negotiable paper and to endorse the same for its own benefit in the course of its business, will be liable on its accommodation endorsement when the paper passes into the hands of a bona fide holder for value before maturity, without notice of the character of the endorsement.</p> <p>2. Section 56 of the Negotiable Instruments Act of May 16, 1901, P. L. 194, providing that “to constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith”; applies to all classes of persons, artificial as well as natural.</p> <p>3. A corporation having either an express or implied power to issue negotiable paper is presumed to act within the scope of such power, and hence there is a presumption in favor of the validity of negotiable paper issued pursuant to such power.</p>

<p>Appeal, No. 24, Jan. T., 1914, by defendant, from judgment of C. P. No. 5, Philadelphia Co., June T., 1911, No. 1048, on verdict for plaintiff in case of Charles J. Feiser v. Philadelphia and Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J., specially presiding.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for f9,000, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were answers to points and various instructions to the jury, and in discharging defendants motion for judgment n. o. v.</p> <p>There is no evidence from which the negligence of the defendant could be inferred: Philadelphia & Reading R. R. Co. v. Hummell, 44 Pa. 375; Philadelphia & Reading R. R. Co. v. Yeager, 73 Pa. 121; Rothschild v. Railroad, 163 Pa. 49; Chilton v. Traction Co., 152 Pa, 425; Lanning v. Railways Co., 229 Pa. 575; Rist v. Transit Co., 236 Pa. 218; Herstine v. Railroad Co., 151 Pa. 244; Cline v. Railways Co., 226 Pa. 586; Shive v. Railway Co., 235 Pa. 256.</p> <p>The case was for the jury: Powell v. Philadelphia & Reading R. R. Co., 220 Pa. 638; Pittsburgh & Connellsville R. R. Co. v. Pillow, 70 Pa. 513; Hatch v. Philadelphia and Reading R. R. Co., 212 Pa. 29; New Jersey R. R. Co. v. Kennard, 21 Pa. 203; Meier v. Penna. R. R. Co., 64 Pa. 225; Penna. R. R. Co. v. White, 88 Pa. 327; Englehaupt v. Erie R. R., 209 Pa. 182; Bockelcamp v. L. W. V. R. R. Co., 232 Pa. 66.</p>

<p>Appeal No. 51, Jan. T., 1914, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., Sept. T., 1913, No. 4172, dismissing bill in equity for an injunction in case of Anna K. Coates, Surviving Trustee of the Estate of Abraham Coates, deceased, Edward E. Montgomery, and Susan L. Bailey v. The Young Women’s Christian Association of Philadelphia, a corporation, and Franklin B. Davis.</p> <p>Bill in equity for an injunction to enforce a building restriction: Before McMichael, P. J.</p> <p>The opinion of the Supreme Court states the facts, The court on final hearing dismissed the bill.</p> <p>All the assignments of error except the last were in the following form: .</p> <p>“1. The learned court below erred in dismissing plaintiffs’ third exception, which exception was as follows:</p> <p>“3. The learned trial judge erred in refusing plaintiff’s twelfth request for finding of fact, as follows:</p> <p>“ ‘12. That the said brick building, fronting upon and towards Eighteenth street, materially interferes with and obstructs the free circulation of light and air to the owners and occupants of the lots lying west of the premises at the southwest corner of Eighteenth and Arch streets, including the plaintiffs, and will result in irreparable damage to plaintiffs.’</p> <p>“The court declines so to find.”</p> <p>The last assignment was as follows:</p> <p>“21. The learned court below erred in entering a final decree, as follows:</p> <p>“And now, January 15, 1914, defendants’ exceptions are sustained and the requests therein quoted are affirmed. Plaintiffs’ exceptions are dismissed, and it is ordered and decreed that their bill in equity be dismissed at their costs.”</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law of the trial judge, and the decree of the court,</p> <p>There was a clear violation of the restrictions and injunction was the proper remedy: Landell v. Hamilton, 175 Pa. 327; Emrick v. Groome, 4 Pa. D. R. 511; Clark v. Martin, 49 Pa. 289; Meigs v. Milligan, 177 Pa. 66.</p> <p>The plaintiffs were not chargeable with laches: Philadelphia v. Sheppard, 158 Pa. 347; Hansell v. Downing, 17 Pa. Superior Ct., 235, 239.</p> <p>The plaintiffs’ laches precluded them from relief in equity: Landell v. Hamilton, 175 Pa. 327; Mackintyre v. Jones, 9 Superior Ct. 543; Heilman v. Lebanon & A. St. Ry. Co., 175 Pa. 188.</p>

<p>Appeal, No. 166, Jan. T., 1913, by defendant, from decree of C. P. No. 5, Philadelphia Co,, June T., 1912, No. 4368, granting injunction in case of Louis C. Bauer and James Warnock, trading as The' American Laundry, v. John Byrd.</p> <p>Bill in equity for an injunction. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the facts..</p> <p>The court on final hearing awarded the injunction as prayed for in the bill. Defendant appealed.</p> <p>Errors assigned were the decree of the court, and in dismissing various exceptions to the findings of fact and law of the trial judge.</p>

<p>Equity — Findings of fact — Appeals.</p> <p>1. Findings of fact of a chancellor will not be-reversed on appeal except for manifest error.</p> <p>Contracts — Leases—Agreement to furnish steam — Construction —Equity—Injunction. -</p> <p>2. In a suit in equity to restrain defendant, plaintiffs’ landlord, from cutting off the supply of live and exhaust steam from plaintiffs’ laundry, a finding by the chancellor that at the time of the making of the lease the lessor entered into a contemporaneous oral agreement to supply plaintiffs with the same quantity of exhaust steam for their laundry that they had received under their prior tenancy, and that this agreement was an inducement to the execution of the lease, was conclusive of plaintiffs’ right to relief, in the absence of manifest error in the record, and will be sustained. '</p> <p>3.. Where in such case it appeared that plaintiffs had contemplated adding certain machinery and appliances to the equipment of -their laundry, that the rental was increased because of the additional cost in furnishing more live steam to meet the new condi•tions, and that the lease provided that the same was to be furnished through a one-inch pipe, a decree requiring defendant to furnish live steam through a one and one-half-inch pipe was modified so as to require defendants to furnish steam through a one-inch pipe in the same quantity as when the lease was made, and steam in addition sufficient to operate the new machinery and appliances contemplated by the parties, and for which an increased rental was agreed to be paid.</p>

Appeal, No. 165, Jan. T., 1913, by defendant, from decree of C. P. No. 5, Philadelphia Co., June T., 1912, No. 4368, in equity, adjudging defendant guilty of contempt of court in case of Louis C. Bauer and James Warnock, trading as The American Laundry, v. John Byrd. Petition for a rule to show cause why defendant should not be adjudged in contempt of court. Before Ralston, J. The opinion of the Supreme Court states the facts.

<p>Negligence — Railroads—Interstate commerce — Injuries to employees — Act of Congress of April 22,1908, 85 Stat. 65, Chap. 11(9.</p> <p>1. The Federal Employers’ Liability Act of April 22, 1908, 35 Stat. 65, Chap. 149, supersedes the laws of the states upon all matters within its scope, and so long as it remains upon the statute books, in cases involving accidents happening upon interstate railroads, to employees engaged in interstate commerce, such state laws must be viewed as non-existent.</p> <p>2. The Federal Employers’ Liability Act must be treated by the State courts in each instance, as though an act of their own legislature, and its provision that any contract, rule, regulation, or device whatsoever, the purpose of which is to enable a common carrier to exempt itself from liability for negligence to its employees, “shall to that extent be void” is the announcement of a broad rule of public policy applicable to all cases within the scope of tbe statute, with'like effect as though promulgated by an Act of the State legislature.</p> <p>Pleading — Statements of claim — Allegata and probata — Injuries to employees employed in interstate commerce — Federal Employers’ Liability Act — Necessity to plead statutes.</p> <p>3. Where a plaintiff does not expressly plead the statute, but proves a case under the Federal Employers’ Liability Act of April 22, 1908, there is no such departure between the allegata and the probata, as will entitle the defendant to binding instructions in his favor. Allen v. Tuscarora Yal. Ry. Co., 229 Pa. 97, distinguished.</p> <p>Negligence — Railroads—Injuries to employees — Defenses—Acceptance of benefits — Gase for jury.</p> <p>4. In an action of trespass against a railroad company to recover damages .for personal injuries sustained by plaintiff, an employee of defendant’s engaged in interstate commerce, in consequence of the alleged negligent construction and maintenance of defendant’s railroad, where there was sufficient evidence of negligence to carry the case to the jury and where it appeared that plaintiff had accepted benefits as a member of defendant’s relief association,-the Federal Employers’ Liability Act of April 22, 1908, applied and precluded the defense that the acceptance of benefits released defendant from liability and it was error to withdraw the case from the jury.</p>

<p>Appeal, No. 105, Jan. T., 1914, by defendant, from judgment of C. P. No. 5, Philadelphia Co., March T., 1911, No. 2106, on verdict for plaintiff in case of Samuel P. Nirdlinger, for himself and for the use and benefit of the Frankfort Marine, Accident & Plate Glass Insurance Company, of Frankfort-On-Main, Germany, v. American District Telegraph Company, a corporation of Pennsylvania.</p> <p>Trespass to recover for the loss by theft of plaintiff’s goods. Before Martin, P. J.</p> <p>The facts appear in Nirdlinger v. American District Telegraph Co., 240 Pa. 571, and in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,937.05 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, and the second assignment which was as follows :</p> <p>. “The lower court erred in refusing to hold that the measure of damage, in this case,, is the amount the plaintiff paid for the wiring of his property.”</p> <p>The action sounds in contract not in tort, and the plaintiff is confined to his remedy upon the contract: Stanton v. Philadelphia & Reading Ry. Co., 236 Pa. 419.</p> <p>The negligence of the defendant was not the proximate cause of the loss: Ross v. Western Union. Tel. Co., 81 Fed. 676; Laidlaw v. Sage, 158 N. Y. 73; Milwaukee & Saint Paul Railway Co. v. Kellogg,. 94 U. S. 469; Hofnagle v. N. Y. C. and H. R. R. R. Co., 55 N. Y. 608; Lowery v. Western Union Tel. Co., 60 N. Y. 198; Franke v. Head, et al., 42 S. W. Repr. 913; Lebanon, Louisville and Lex. Tel. Co; v. Lanhan Lumber Co., 131 Ky. 718; Volquardson v. Iowa Telephone Co., 126 N. W. Repr. 928; Schaeffer Brano Mfg. Co. v. National Fire Extinguisher Co., 148 Fed. 159; First National. Bank of Barnesville v. Western Union Tel. Co., 30 Ohio State 555.</p> <p>The proximate cause of the loss was the voluntary act of the burglar, over whom the defendant had no control. Burton v. Pinkerton, L. R. 2 Exch. 340; Stone v. Cod-man, 15 Pick. 297; Schmidt v. Mitchell, 84 111. 195; Hampton v. John, 12 N. W. Repr. 276 (la.); Ellis v. Cleveland, 55 Yt. 357; Mitchell v. Clarke, 71 Cal. 163; Yicar v. Wilcocks, 2 Smith Lead. Cases, Eq. 553 and note; Pegram v. Western Union Tel. Co., 6 S'. E. 770 (N. C.); Scheffer v. Washington City, Virginia, Midland and Great Southern Railroad Co., 105 U. S. 252,</p> <p>The negligence of the defendant was the proximate cause of the accident: Pullman Palace Car Co. v. Gardner, decided in 1883, reported in 3 Penny. 78, and in 14 Weekly Notes of Cases, 17; Springer v. Pullman, 234 Pa. 172; Amer. Steamship Co. v. Bryan, 83 Pa. 446; Eagle Hose Co. v. Electric Light Co., 33 Pa. Superior Ct. 581; Bannon v. P. R. R., 29 Pa. Superior Ct. 231; Russell v. Westmoreland County, 26 Pa. Superior Ct. 425; Me Grew, et al., v. Stone, 53 Pa. 436; Pa. R. R. Co. v. Kerr, 62 Pa. 353; Pa. R. R. Co. v. Hope, 80 Pa. 373; Hoag y. Lake Shore & Mich. Southern R. R., 85 Pa. 293; Burrell Twp. v. Albert TJncapher,'et al., 117 Pa. 353; Hayerly v. R. R. Co., 135 Pa. 50; Potter v. Natural Gas Co. of W. Va., 183 Pa. 675; Gudfelder v. Pittsburgh, C., C. & St. L. R. Co., 207 Pa. 629; Koelsch v. Philadelphia Co., 152 Pa. 355; Fairbanks v. Kerr, 70 Pa. 86.</p> <p>The action was properly brought in trespass: Dungan v. Read, 167 Pa. 393; Hoehle v. Heating Company, 5 Pa. Superior Ct. 21; Graham v. Cummings, 208 Pa. 516; Wood v. Virginia Hot Springs Company, 202 Pa. 40.</p>

<p>Practice, C. P. — Address to jury — Improper remarks by counsel —Evidence—Hypothetical questions — Negligence—Street railways.</p> <p>1. In an action against a street railway company to recover damages for personal injuries, where counsel for the plaintiff in his address to tbe jury in referring to the expert testimony of the physician called .as a witness by defendant, who had examined plaintiff, and whose testimony had not been impeached, said: “Will you believe the testimony of the physician for the transit company, whose business it is to minimize injuries?” and upon motion by counsel for the defendant for the withdrawal of a juror, ■and continuance of the ease, further said: “I stand upon that” the remarks were improper.</p> <p>2. Where in such case an expert medical witness, who had examined plaintiff, was asked by plaintiff’s counsel over defendant’s objection: “Will you give us the results of each examination after-wards; when you saw her and give us the results of each,” and “taking the history of the ease as given to you, and the evidence that you have heard here, would you be able to state as to what is the cause, of her condition as you found it at the present time, or as you found it in May, 1911,” the questions were hypothetical, and should have been framed in accordance with the well defined rules applicable to such questions and it was error for the court to permit the witness to testify in reply thereto.</p>

<p>Appeal, No. 76, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1913, No. 245, on verdict for plaintiffs in case of Emil Gralka, by his Father and Next Friend, Adolph Gralka, and Adolph Gralka v. Worth Brothers Company.</p> <p>Trespass to recover damages for personal injuries. Before Staples, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for Emil Gralka for $3,000, and for Adolph Gralka for $500, and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant, and to enter judgment for defendant n. o. v.</p> <p>cited: Lonzer v. Lehigh Val. R. Co., 196 Pa. 610; Keiser v. Lehigh R. R. Co., 212 Pa. 409; Schley v. R. R. Co., 227 Pa. 494; Cohen v. Transit Co., 228 Pa. 243; Walters v. Bridge Co., 234 Pa. 7; Shannon v. Knight of the Maccabees, 54 Pa. Superior Ct. 634; Henderson v. R. R., 144 Pa. 461; Carpenter v. Miller, 232 Pa. 362; Thompson v. R. R., 218 Pa. 444; Leithold v. R. R, 47 Pa. Superior Ct. 137; Gillespie v. McGowan, 100 Pa. 144: Gillis v. R. R., 59 Pa. 129; Breckenridge v. Bennett, 7 Luzerne L. R. R. 95.</p> <p>cited: Finkbeiner v. Solomon, 225 Pa. 333; Loughlin v. Penna. R. R. Co., 240 Pa. 174; Powers v. Harlow, 53 Michigan 507; Nelson v. McClellan, 31 Wash. 208; Mattson y. Railroad Co., 95 Minn. 477; Olson y. Investment Co., 108 Pacific Rep. 140; Crabb v. Wilkins, 109 Pacific Rep. 807; Tibbitts v. Spokane, 117 Pacific Rep. 397; Vills v. Cloquet, 119 Minn. 277; Victor y. Smilanich, 54 Colo. 479; Henderson v. Refining Co., 219 Pa. 384; Milium v. Coal Co., 225 Pa. 214; Penna. Railroad Co. v. Wise, 87 Pa. 447; Speer y. Railroad Co., 119 Pa. 61; Brunner y. Telephone Co., 151 Pa. 447; Dormer v. Paving Co., 16 Pa. Superior Ct. 407; Devlin y. Electric Co., 198 Pa. 583; Rauch v. Smedley, 208 Pa. 175; Heh v. Gas Co., 201 Pa. 443; Moon v. Matthews, 227 Pa. 488; Kurtz v. Tourison, 241 Pa. 425; Parker v. Matheson Motor Car Co., 241 Pa. 461.</p>

<p>Decedents’ estates — Contracts—Declaration of trust — Equitable assignments — Insolvent estates — Priority.</p> <p>1. At the audit of the account of the executors of an insolvent estate, claim was made for a preference of $12,500 by virtue of an agreement made between the decedent, and claimants’ testator, whereby it was stipulated that “upon the sale of......the plot of ground situated” (no description) decedent would “give to” claimant’s testator “one-half of the money which he shall receive as his portion of the proceeds” of such sale and that claimants’ testator would not demand payment of a loan of $32,000 due him by decedent for a period of five years. It appeared that certain land, admittedly the land referred to in the agreement, had been sold by the executors for $25,000; that the land had been purchased by decédent with money loaned him by claimants’ testator; that claimants’ testator had loaned decedent other amounts in addition to the sum mentioned in the agreement at various times. There was no evidence that at the time of any particular loan, decedent agreed to grant claimants’ testator an interest in the land, or that any money was given by claimants’ testator to the decedent for the specific purpose of buying such land. Claimants contended that the agreement constituted a declaration of trust, or an equitable assignment of half of the proceeds to be realized from the sale of such land, and claimed a preference over general creditors. Held, the Orphans’ Court did not err in decreeing that claimants were not entitled to a preference.</p> <p>Decedents’ estates — Bonds—Mortgages—Equity—'Estoppel.</p> <p>2. At the audit of an executor’s account it appeared that decedent had given a bond to claimants conditioned for the payment of $10,000 as collateral to a mortgage; that the mortgage was foreclosed and the property purchased at sheriff’s sale by claimants for $50. Claimants contended that they were entitled to recover the unpaid balance of the debt from the estate. It appeared that one of claimants had written a letter to one of the decedent’s executors offering to purchase the mortgaged property for $500 “over and above the bond and mortgage,” but that the offer was withdrawn a few days later. Though it appeared that at a conference between the parties subsequent to the writing of the letter, the letter was not mentioned and though it did not appear that anyone present, except the writer, knew of the letter, the Orphans’ Court found that those present left the conference with the distinct understanding that claimants would buy in the property in satisfaction of the debt, and concluded that claimants were es-topped from claiming on the bond. At the bar of the court below claimants’ attorney offered to surrender the property purchased under foreclosure, upon payment of the mortgage debt with interest. Held, that as a matter of law claimants were entitled to claim upon the bond, and that in view of the offer made at the bar of the court, the contention that claimants were estopped to assert the claim was without merit, and the decree was accordingly modified.</p>

<p>Mines and mining — Goal lease — Construction—Royalties—Suspension of payment — Good faith — Case for jury.</p> <p>In an action of assumpsit to recover certain rents and royalties accruing under a coal lease, it appeared that the lease was to continue “until all the merchantable coal available by careful mining should be mined out,” that during the continuance of the lease an annual rental of $4,800 was to be paid, for which the lessee was entitled to mine 1,250 tons of coal a month above the size of pea, and additional royalties were to be paid for pea coal mined, and for larger sizes mined in amounts in excess of the minimum. For three years beginning in 1894, the minimum rentals amounting to $13,000 were paid, but coal of the royalty value of only $4,600 was mined. Thereafter no further rentals were paid by the lessee which claimed that it had paid for all the merchantable coal available by careful mining. The mining operations were continued until 1905, when the deficit was wiped out, and were continued thereafter. It was provided in the lease that if the lessee’s officers should be of opinion that it had paid for as much coal as still remained in the premises, tests should be made by engineers to be selected as provided in the lease, and if it should appear that rentals had been paid on all the coal, no further payments should be made until the coal upon which payments had been made was mined out, provided the coal was mined with- due diligence. The plaintiff sought to recover the full amount of the minimum rentals for certain years when no payment had been made. It appeared that at the time of trial, 12,000 tons of merchantable coal were still unmined. Defendant contended that the suspension of payments had been made as authorized by the lease. Tbe evidence was conflicting and tbe trial judge left it to the jury to determine'whether or not the original lessee “in good faith, with honest intention and intelligent knowledge......suspended payment of the minimum rental.” The jury found a verdict for. plaintiff upon which judgment was entered. Held, no error.</p>

<p>Appeal, No. 282, Jan. T., 1914, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1908, No. 570, on verdict for plaintiff in case of Michael KopocMk v. The Pennsylvania Coal Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts appear in the following opinion of Strauss, J., refusing motion for judgment n. o. v.:</p> <p>This is an application for a judgment non obstante veredicto, but not for a new trial. The case has been twice tried, and both times it has resulted in a verdict for the plaintiff. After the first trial this court, upon facts substantially the same as appeared at the trial now under consideration, refused to enter judgment non obstante veredicto, but allowed the motion for new trial because the evidence of contributory negligence was so strong that the verdict seemed to be against the plain weight of the evidence. That evidence is again substantially as strong as before. The case in our opinion must always go to the jury so far as this question is concerned. The defendant now presses the motion for judgment non obstante only, and we shall give that somewhat more attention than was given to it at the first trial.</p> <p>The facts are rather simple as we view them in the light of the verdict. The defendant operates a colliery known as No. 14, where it employs from twelve hundred to fifteen hundred men. A high fence has been built around the works and entrance to the ground is obtained through gates. Within the grounds a railroad has been established leading from a breaker and washery to weighscales. Cars filled with coal at the breaker or washery were habitually run by gravity to the scales Generally these cars were in charge of a brakeman who regulated their running through control furnished by a brake. About seven hundred employees went daily to and from their work over a road established within the grounds leading from one of the gates across the railroad. Over the railroad a regular crossing from twelve to fourteen feet wide had been established in the line of this road for the use of wagons and of employees. This crossing was so close to the washery that a car, standing under the washery to be loaded, would reach, and sometimes encroach upon, the crossing. It seems to have been usual for persons seeking employment to use this road and crossing in going to the place where the foreman having charge of employment of men might be found.</p> <p>The plaintiff who for many years worked at this colliery, but who was out of employment on April 3, 1908, went in search of employment over this road and crossing to the foreman who sent him into the mine to see several places at which he might work. On returning, plaintiff, with eight or ten other men, went from the shaft over this crossing with a view of returning to his home.</p> <p>There is some conflict in the evidence as to whether the plaintiff stopped, looked and listened, and walked over the crossing, or whether without these precautions, ran across the railroad track some distance below the crossing with a view of catching a car that was passing on a public road outside of the fence. That question of fact was duly submitted to the jury. The plaintiff claimed and testified that usually when cars stood under the washery, and projected out towards, or over the crossing, there was a man on the car at the end nearest the crossing who warned persons about to use the crossing when it was proposed to start the car, but at this particular time there was no man at that place, and no warning given, and that the car was suddenly set in motion when the plaintiff was on the crossing, whereby he was struck, knocked down, dragged about twenty feet, and had one foot so injured that it had to lie amputated and the other less injured but sufficiently to cause the amputation of one or more toes to be necessary.</p> <p>The defense was two-fold. First, on the fact that the plaintiff was guilty of contributory negligence in attempting to cross the track without the precautions required by law at a place, not the crossing, in front of a moving car; and, secondly, that the defendant owed the plaintiff no duty whatever because there was no relation of master and servant, claiming tbe plaintiff to be only a licensee of the premises who was seeking work, but had not yet entered into the employment of the defendant. It is in consequence of this latter theory that the motion for judgment non obstante veredicto is now presented, and the defendant relies upon the principal followed in Larmore v. The Crownpoint Iron Company, 4 N. E. Eep. 752; 101 N. Y. 391; and Schiffer v. Sauer Co., 238 Pa., 550. In the former case, the plaintiff seeking employment, went upon the grounds of the defendant and while walking along a pathway was struck by a piece from a machine that had suddenly broken. In the opinion the court stated:</p> <p>“The plaintiff was on the premises at most by mere implied sufferance or license of the defendant, and not on its invitation, express or implied; nor was he there in any proper sense on the business of the company. ........He went there on his own business, and in returning he was subserving his own purpose only. The precise question is, whether a person who goes upon the land of another without invitation to secure employment from the owner of the land is entitled to indemnity from such owner for an injury happening from the operation of a defective machine on the premises, not obviously dangerous, which he passes in the course of his journey, if he can show that the owner might have ascertained the defect by the exercise of reasonable care.”</p> <p>The court answers the question by saying:</p> <p>“We know of no case which goes to this extent. There is no negligence in a legal sense which can give a right of action unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances. An employer is required to take reasonable precautions and to exercise reasonable care in providing safe machinery and appliances for the use of his servant. The duty arises out of the relation. The owner of land in general may use it as he pleases and leave it in such condition as he pleases........So also where the owner of land in the prosecution of his own purpose or business, or of a purpose or business in which there is a common interest, invites another, either expressly or impliedly, to come upon his premises, he cannot with impunity expose him to unreasonable or concealed dangers; as, for instance, from an open trap in a passageway. The duty in this case is founded upon the plainest principles of justice......The duty of keeping premises in a safe condition, even as against a mere licensee, may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege, theretofore permitted and enjoyed, to great danger. The case of running a locomotive without warning over a path across the railroad, which had been generally used by the public without objection, furnishes an example. Barry v. N. Y. Central Railroad, 92 N. Y. 289:.......In the case before us there were no circumstances creating a duty on the part of defendant to the plaintiff to keep the machine in repair; and consequently no obligation to remunerate the latter for his injury. The machine was not intrinsically dangerous. The plaintiff was a mere licensee. The negligence, if any, was passive and not active, of omission and not of commission. A judgment in favor of the plaintiff in the court below was therefore reversed, though not without dissent.” '</p> <p>In Sehiffer v. Sauer Co., 238 Pa. 550, the plaintiff who was a carpenter seeking employment, entered into a building in the course of erection while the defendants, one a contractor doing plumbiilg work, ahd the other a gas company, were jointly engaged in testing and inspecting the gas pipes, and was injured by an explosion resulting from the omission to plug or cap two openings in the gas-main. Judgment was entered by the court in favor of the defendant, because the plaintiff Was a mere licensee to whom the defendant owed no duty, except to abstain from inflicting on him an intentional, wanton or wilful injury, and the court quoted at length from the foregoing opinion.</p> <p>It would seem as if there were a plain distinction to be found between the facts of those cases and the one now before us; a distinction indicated in the Larmore case when the court refers to the running of a locomotive without warning over a path across the railroad which had been generally used by the public. The path in this colliery was opened by the railroad company to accommodate the needs of its employees, as well as persons with horses and wagons who had business within the limits of the colliery grounds, and persons who in the course of defendant’s business might become its employees and were therefore received by its foreman at a place within the grounds which was reached only by passing over the crossing. Surely an employer of labor who operates a railroad such as this one must operate it without negligence toward those who come upon his ground seeking employment at a place appointed by him for the purpose; who coming as much about his business as about their own, are by him directed over a railroad crossing as the only way of reaching the office or official that must be visited if employment is to be obtained. When such a railroad is operated negligently, it comes within the instance suggested in theLarmore case, supra, where the negligence is active and not passive, where it is an act of commission and not of omission; or, still speaking in the language of that case, we have an instance where “the duty of keeping the premises in safe condition even as against a mere licensee may also arise where affirmative negligence in the management of the property or business of the owner would be likely to subject persons exercising the privilege theretofore permitted or enjoyed, to great danger.”</p> <p>Much stress was laid at the argument on the fact that the defendant had enclosed the property with a high fence. But this overlooks the other potent fact that the defendant had left gates in the fence and established roads from those gates across a railroad operated within the enclosure. Whether the special conditions existing at this place required the establishment of signals or brakemen to give notice before moving the cars, was in our opinion clearly a question of fact for the jury, and as such it was submitted both in the body of the charge and in the answer to a particular request by the defendant for instructions. On the whole case we deny the motion.</p> <p>Verdict for plaintiff for $3,300 and judgment thereon.</p> <p>The defendant appealed.</p> <p>Error assigned was, inter alia, the refusal of judgment for defendant n. o v.</p> <p>It was error to permit the jury by their finding to prescribe a higher standard of care and precaution for the defendant in the conduct and management of its business than the one which it pursued, which was according to the usual customs and ordinary methods adopted and in general use by other coal companies: Titus v. Railroad Co., 136 Pa. 618; Lehigh & Wilkes-Barre Coal Co. v. Hayes, 128 Pa. 294; Northern Central Ry. Co. v. Husson, 101 Pa. 1; Iron-ship Bldg. Works v. Nuttall, 119 Pa. 149; Kehler v. Schwenk, 144 Pa. 348; Harvey v. Coal Co., 201 Pa. 63.</p> <p>Defendant was not bound to give notice by signal or otherwise as its cars approached and passed over its private crossing to a person going inside of its private grounds: Schiffer v. Sauer Co., 238 Pa. 550; Larmore v. Crown Point Iron Co., 54 Am. Rep. 718 (101 N. Y. 391); Gramlich v. Wurst, 86 Pa. 74; Severy v. Nicker-son, 120 Mass. 306; Holmes v. Railway Co., Law Reports (Exchequer Cases, 4 Vol. 254); Vanderbeck v. Hendry, 34 N. J. Law Rep. 467; Walsh v. Fitchburg R. R. Co., 39 N. E. 1068; Gillis v. R. R. Co., 59 Pa. 129.</p>

<p>Appeal, No. 388, Jan. T., 1913, by defendant, from judgment of C. P. Columbia Co., Sept. T., 1913, No. 89, for plaintiff for want of a sufficient affidavit of defense in case of Arvilla Baker, now Arvilla Troxell, v. George M. Tustin.</p> <p>' Scire facias sur mortgage. Rule for judgment for want of a sufficient affidavit of defense. Before Evans, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made the rule absolute and entered judgment for plaintiff. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 43, Jan. T., 1914, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1909, No. 357, on verdict for plaintiff in case of John Podona v. Lehigh Valley Coal Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts appear in the following opinion of Garman, J., sur defendant’s motion for a new trial and for judgment n. o. v.</p> <p>The plaintiff, John Podona, was employed, on 29th March, 1909, for the Portland Contracting Company, in a gangway of the defendant’s mine. He worked at loading rock and had been employed there for about three weeks.</p> <p>To get to his place of work, he was taken into the mine down a slope in a car, and when going home from work was taken up the slope in the car. On said date when he was being taken up the slope, his head collided with the door frame and he sustained very seriousinjuries. He claims that he never saw the doorway because at all times when he had passed it, it was full of smoke.</p> <p>The motion for new trial is based on the following reasons :</p> <p>First. The verdict is against the law.</p> <p>Second. The verdict is against the evidence.</p> <p>Third. The court erred in refusing to affirm defendant’s points.</p> <p>The motion for judgment non obstante veredicto is •based upon our refusal to give binding instructions.</p> <p>The defense relies upon certain propositions.</p> <p>First. “No negligence was alleged or shown.” The objection that no negligence was alleged, is based upon the language of plaintiff’s statement which, in so far as it relates to defendant’s negligence is as follows: “That it became and was the duty of the said defendant company to provide a safe ingress and egress for all who were lawfully employed in the said mine.” “The said company was negligent in not so constructing the said door that the frame thereof would not injure one lawfully ascending or descending the said slope.” “The plaintiff alleges that the defendant was negligent in not furnishing a proper car for persons lawfully ascending and descending the said slope.”</p> <p>While the language of the statement is undoubtedly too broad, still it was not submitted to the jury and the case was tried on the theory of the master furnishing to the servant a reasonably safe place. As counsel for defendant understood that the legal “safe place” is the practical reasonably safe place, no harm could be done to the defendant by the breadth of the claim. The cases cited to sustain defendant’s contention are where the trial court submitted to the jury the question of safety without qualification. The difference is wide; in such cases the jury might infer absolute safety to be the rule; here counsel for both plaintiff and defendant knew otherwise. It would be the excess of technicality and a practical denial of justice to deprive plaintiff of his action merely because his counsel in his statement used the language quoted, when the language included plaintiff’s claim and no one was injured by the form of expression.</p> <p>As to the allegation that a proper car was not furnished by defendant to the persons lawfully ascending and descending the slope, we find that on the trial no evidence was offered to sustain the allegation and it cannot be seriously argued that because it was alleged and not proved the plaintiff is out of court. But, defendant argues that even conceding “for the sake of argument only, that the declaration averred the failure of the defendant to furnish the plaintiff with a reasonably safe ingress and egress to be used in connection with his place of work, there was no proof offered by the plaintiff tending to establish such a charge.” Defendant’s reason, for this statement is based upon the theory that whether the door was or was not reasonably safe could only be determined by comparison. It was not claimed by plaintiff that in form and detail the door differed from other doors in mines, nor that ordinarily it would not be reasonably safe; but it was urged that as the door located with, respect to smoke and- escaping steam which frequently concealed the door, the construction was not reasonably safe. In other words that the particular circumstances must determine the reasonable safety of construction, there being a higher degree of care required when the danger could not be seen and guarded against than when the danger was apparent. The plaintiff and some of his witnesses, as did some of. defendant’s witnesses, testified that frequently because of smoke the door could not be seen, and the plaintiff testified that because of smoke and steam he had never seen the door. We said to the jury: “The plaintiff’s case will therefore rest clearly upon his own testimony with respect to his knowledge of the height of the door and his going under it. If you find that he knew it and that he allowed himself to be transported up in the car where, by raising his head a few inches, he was liable' to have it knocked off, then it may be concluded that he assumed the risk of his employment and, in our judgment, he would not be entitled to recover in this case. But if he did not know that at that point it was lower than the rest of the gangway, or slopeway, whatever name be proper for it, and could not see it, and if that in your judgment was a negligent construction under the circumstances, then we say to you that he might recover.” It will be noticed that the plaintiff’s statement is that defendant “was negligent in not so constructing the said door that the frame thereof would not injure one lawfully. ascending or descending the said slope.” This proposition must be true if the frame was to be concealed from observation, and the evidence, on both sides shows that it was frequently so concealed by steam and smoke. If from the language cited the particulars relating to the negligence of construction could not be determined, the defendant might have demanded a bill of particulars and obtained exact information as to the full import of the language of the statement. Defendant could not place its own construction on the language, rest its case upon it and then hold plaintiff to the defendant’s interpretation, if the language were broad enough to include another interpretation. That the plaintiff was not an employee of defendant we think is immaterial. If the defendant undertook to convey plaintiff upon and down the slope, defendant owed to plaintiff the same duty as to employees. The doctrine of Hagan v. Steel Co., 240 Pa. 222, does not apply to this case.</p> <p>Second. Defendant urges that plaintiff assumed the risk of his employment and cannot recover, and that its first point should have been affirmed. The point is as follows: “The plaintiff, by contracting for the performance of hazardous duties, must be held to have assumed such risks as were incident to their discharge from causes open and obvious, the dangerous character of which he had opportunity to ascertain; and having passed on his way to and from his work twice daily for three weeks the door by which he was injured in the same car in which he was riding when injured, or in a car of similar construction, and having had ample opportunity to observe the height of the door frame, as was the case with his fellow servants, he must be held to have seen what they observed, and to have assumed the risk of the accident which befell him.” This point could not be affirmed because it assumes that the plaintiff had “ample opportunity to observe the height of the door frame, as was the case with his fellow servants.” The opportunity to observe is positively denied by plaintiff and was for the jury. What his fellow servants might have opportunity for observing depends upon so many elements such as length of service, points of observation, positions in the car, that obviously their knowledge could not be attributed to him, unless their opportunity and his were found to be identical.</p> <p>It is undoubtedly true that m getting in defendant’s car to be carried out of the mine plaintiff assumed the risks apparent but he had also the right to assume that defendant would carry him with reasonable safety as to appliances and construction. As shown by the portion of our charge hereinbefore quoted this, question depended upon the findings of the jury as to plaintiff’s knowledge of the “height of the door and his going under it.”</p> <p>Third. The defendant contends that on the ground of contributory negligence plaintiff should not be permitted to recover. This question was submitted to us by defendant’s fifth point which we answered thus: “We cannot affirm that point as drawn; but we say to you that if you find that the plaintiff had knowledge of this condition and himself was careless then the plaintiff cannot recover;” We had also said in our main charge: “It may be possible that this plaintiff raised his head thoughtlessly at a dangerous point and sustained his injury. If he were passing under a low bridge or under a low ceiling and happened by some impulse to raise his head and be hurt, as I have stated several times, if he had known of the condition, he. could not. recover even though it was low; because he assumed the risk when he undertook to work in a place like that.” This we think left the question of contributory negligence to the jury where in our judgment it properly belonged.</p> <p>Fourth. Defendant contends that the negligence,.if. any, was that of the mine foreman. This contention cannot be sustained. The evidence did not bring the mine within the exception to the Act of 2d June, 1891, wherein mine formen are provided for.</p> <p>Yerdict for plaintiff for $2,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n, o. v.</p>

<p>Elections — Borough councilmen — Unexpired terms — Ballots— Act of May ££, 1895, P. L. 109 — Quo warranto.</p> <p>Where a suggestion for a writ of quo warranto to oust borough councilmen from office alleged that at a borough election by virtue of which defendants claimed title to office there were six councilmen to be elected, two to fill unexpired terms, ¡and four for full terms, but that the electors did not designate on their ballots that they voted for two of the candidates for unexpired terms, as required by the Act of May 22, 1895, P. L. 109, Section 4, so that it was impossible to tell from the ballots cast who of the six candidates receiving the majority votes had been elected for the unexpired terms, the court made no error on demurrer to the suggestion in entering judgment of ouster in favor of the Commonwealth.</p>

Appeal, No. 89, Jan. T., 1914, by defendant, from judgment of C. P. Luzerne Co., Feb. T., 1911, No. .190, on verdict for plaintiff in'case of Bridget Gallagher v. Black Creek Coal Company. Trespass to recover damages for the death of plaintiff’s son. Before Stbauss, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $5,299.37 and judgment thereon. Defendant appealed.

<p>Appeal, No. 137, Jan. T. 1914, by plaintiff, from decree of C. P. Luzerne Co., Oct. T., 1913,. No. 24,.refusing an injunction in case of Delaware, Lackawanna- & Western Railroad Company v. The County Commissioners, the Board for the Assessment and Revision of Taxes for the County of Luzerne, the Sub-Assessor of Plymouth Township, the Supervisors and the Tax Collector of the Same.</p> <p>Bill in equity for an injunction. Before Fuller, P. J.</p> <p>From the record it appeared that the plaintiff, the owner of certain tracts of coal land in the Township of Plymouth, Luzerne County, filed a bill in equity complaining that the assessment and valuation upon its coal lands in said township was an unlawful, illegal and void assessment, and by reason of such illegality the taxing authorities and the tax collector ought not to be permitted to collect any taxes thereon for the reason that the subordinate assessor had no part whatsoever in making the assessment, and that the valuation per acre was not determined by a consideration of what the coal lands would separately and bona fide sell for, as required by law, but arrived at on a basis and blanket rate per foot acre, regardless of conditions which would render the coal available or nonavailable, and praying that an injunction be awarded, restraining the tax collector from collecting a tax based upon such illegal and void assessment, and that the assessment be declared illegal and void and stricken from the assessment book.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>The court on final hearing dismissed the bill. Plainfiff appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law of the trial judge and the decree of the court.</p>

<p>Negligence — Railroads—Operation—Injury caused by smoJce to adjoining land owner — Nonsuit.</p> <p>1. An adjoining land owner cannot recover for inconvenience or loss occasioned by smoke, noise or vibration which, result from the operation of a railroad in a lawful manner without negligence, unskillfulness or malice.</p> <p>. 2. In an action against a railroad company by an adjoining land owner to recover damages alleged to have been caused to plants of plaintiff’s greenhouses by the emission of smoke, soot and gas from the defendant’s engines, which were allowed to stand on a siding in front of plaintiff’s property while the engineers were awaiting orders, a judgment of nonsuit was properly entered, where it was conceded at the trial that the engines were equipped with all known appliances in general use to reduce the amount of smoke and soot and there was no evidence that would sustain a finding of negligent or unskillful operation.</p>

<p>Sureties — Guardian’s bonds — Power of court to reduce.</p> <p>1. A bond given by a guardian and approved by the court shall be deemed to be held in trust to all persons interested, and the court has no authority to release the bond without the consent of all parties in interest.</p> <p>2. A bonding company became a surety on the bond of a guardian in the penal sum of $25,000. The bond as executed was never surrendered, or cancelled by the court or changed by the parties in interest. The bonding company never made any application to the court to have the bond released or reduced in amount, nor did it ask at any time that the guardian be required to give additional security. The guardian made application to the court to have the amount of the bond reduced and the bond was accordingly .reduced to $4,000. The guardian subsequently filed an account showing a balance in his hands of over $14,000. Upon the failure of the guardian to pay this amount to the ward an action was instituted by the ward against the guardian and the bonding company as surety on the bond. The bonding company acknowledged liability in the amount of $4,000, but denied liability for the balance of the ward’s claim. The court directed a verdict for the full amount against the bonding company. Held, no error.</p>

<p>Mortgages — Purchase money mortgage — Defenses—Affidavit of defense — Supplemental affidavit — Equitable' defenses — Insufficient averments — Fraud—Averment of title — Covenants.</p> <p>1. Although there is no rule that a supplemental affidavit of defense is to be confined to an explanation of the original and cannot set up a new and different defense, such a course is suspicious and requires that the new defense should be closely scrutinized.</p> <p>2. If fraud is relied upon as a defense, the affidavit of defense must state specifically and at length in what it consists; the facts constituting the defense must be stated; and must be positively averred to exist.</p> <p>3. Being “in possession” and “paying taxes” do not in themselves, without more, constitute title to land, or justify an inference of title.</p> <p>4. From fiduciary grantors the grantee is entitled to no covenants except that the grantor has done no act to encumber the estate. When used by trustees the words “gTant, bargain .and sell” imply no personal undertaking.</p> <p>5. While it is established that if consideration money for a purchase of real property has not been paid, the purchaser unless it plainly appear that he had agreed to run the risk of the title, may defend himself in an action for the. purchase money by showing that the title was defective, either in whole or in part, whether or not there was a covenant by the vendor of general warranty, or of the right to recover, or of quiet enjoyment, and it is not necessary in all instances that there be an actual eviction to entitle one to the defense referred to, yet where the defendant continues to hold pos- ■ session and this equitable defense is relied upon, he must show that tbe title he has accepted was positively bad, and that there was a superior and indisputable title in another person asserting such title.</p> <p>6. In a proceeding to recover the balance due upon a purchase money mortgage, an original and supplemental affidavit were filed, setting up the defense that the mortgage in question was given for part of the purchase money of a large tract owned by the plaintiffs; that when the defendant attempted to take possession he found other persons in possession and claiming title to large portions of the land embraced within the deed, and claiming to be the owners of the legal title thereto, and also claiming to have a superior title to that of the defendant, and that these claims were the subject of actions of ejectment then pending; but without stating under what right those alleged to be in possession respectively claimed, or when they took, or how long they had held such possession; that the land covered by these, claims was “of a value equal to, or nearly equal to, the amount that remained unpaid upon- the mortgage”; and that the defendant “had reason to believe” that the title of such claimants was superior to his own and that the plaintiffs knew at the time of the sale that their title was defective and that such claimants were “in possession and paying taxes” and that the plaintiffs had fraudulently concealed these facts from the defendant and fraudulently represented to him that they had a good title. The allegation of fraud was supported by no averments of specific facts which would constitute the offense charged or give rise to an inference of fraud. It appeared that the mortgage was entered into by the plaintiffs as trustees of a bankrupt corporation, that the deed contained no covenant of general warranty, that it granted the property without metes or bounds or precise location of any kind, and contained the clause “together with all the estate, right, title, interest, property, claim or demand whatsoever, of them the said grantors in law, equity or otherwise,” and that years after the delivery of the deed the defendant had paid a large sum on account of the mortgage. The affidavits also failed to describe in any definite way the precise lands as to which defendant claimed a failure of title or to place a value upon each of the several pieces of land so claimed and further failed to state whether the valué alleged was estimated at the time of the purchase or the date of the pleading and contained no averment of an actual eviction. Held, that plaintiff was entitled to judgment for want of sufficient affidavit of defense.</p>

<p>Trial — Remarles of court — Action against railroad for damages for injury to timber by fire — Statement of amount claimed.</p> <p>The reason for reversals on appeals by defendants in cases where the attention of the jury has been called to the amount of damages claimed has no application when the appeal is by a plaintiff dissatisfied with the amount of the verdict.</p>

Appeal, No. 265, Jan. T., 1913, by defendant, from judgment of C. P., No. 2, Philadelphia Co., Dec. T., 1912, No. 2992, for plaintiff for want of a sufficient affidavit of defense in case of Stephens-Adamson Manufacturing Co., a corporation, v. N. Bruce Armstrong. Assumpsit against endorser of a bill of exchange.

Appeal, No. 361, Jan. T., 1913, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1913, No. 68, making absolute rule to show cause why foreign attachment should not be dissolved in case of D. McLennan v. The Public Utilities Construction Company, a Corporation. Buie to show cause why a foreign attachment should not be dissolved.

Appeal, No. 138, Jan. T., 1914, by plaintiff, from order of C. P. Crawford Co., Nov. T., 1906, No. 59, refusing to take off compulsory nonsuit in case of Michael McCabe v. Bessemer & Lake Erie Railroad Company. Trespass for personal injuries. Before Prather, P. J. Tbe court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed. Error assigned was. in refusing to take off the nonsuit.

<p>Appeal, No. 45, Jan. T., 1914, by David D. Johnson, from decree of O. C. Fayette Co., Jan. T., 1913, No. 39, dismissing exceptions to adjudication in estate of Caroline A. Downer, deceased.</p> <p>Exceptions to adjudication. Before Work, P. J.</p> <p>From the record it appeared that Caroline A. Downer died, leaving the following will:</p> <p>“I, Caroline A. Downer,, of Uniontown, Fayette County, Pennsylvania, hereby make my last will and testament: First: I direct my executor, hereinafter named, securely to invest the sum of Fifteen hundred ($1500.00) Dollars out of my Estate, the interest thereof to be used to keep in repair the Family Cemetery Lot in Oak Grove Cemetery, Uniontown, Pennsylvania, and to keep in proper repair the tomb stones thereon. Second: I appoint David D. Johnson of Uniontown, Pennsylvania, Executor hereof, without bond, and with power to sell as he may think best any realty of which I may die seized, to execute deeds therefor, and to make distribution of the proceeds thereof as personalty, and of all personalty of which I may die possessed, to those legally entitled thereto according to the intestate laws of the State of Pennsylvania. In Witness Whereof, I have hereunto set my hand and seal, this 15th day of January, 1910.</p> <p>“Caroline A. Downer (Seal).”</p> <p>Testatrix left surviving her nine first cousins of the blood of her father and fifteen other first cousins of the blood of her mother. The controversy in this case arose over the distribution of the net proceeds of the sale of certain real estate, title to which testatrix held by descent from her father and from certain of her brothers and sisters in such manner that it retained its character as ancestral property which in case of intestacy would have descended to the heirs who were of the blood of testatrix’s father. The auditing judge held that the will worked a conversion into personalty of the entire real estate and awarded the fund to the twenty-four first cousins in equal shares. The nine first cousins ex parte paterna, of whom the appellant, David D. Johnson, was one, filed exceptions to the adjudication, claiming the whole fund as real estate. The court dismissed the exceptions. David D. Johnson appealed.</p> <p>Error assigned, among others, was in dismissing the exceptions.</p>

<p>Appeal, No. 161, Jan. T., 1914, by plaintiff, from order of C. P. Northumberland Co., May T., 1913, No. 355, refusing to take off nonsuit in case of Annie Budnar v. Mineral Railroad and Mining Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Cummings, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the close of the plaintiff’s testimony, the court entered a nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

<p>Equity — Equity practice — Conflicting lien claims — Execution— Preliminary injunction — Appeals—Supreme Court.</p> <p>• A bill in equity to foreclose a corporation mortgage on a hotel property was filed by the mortgagee trustee. On motion for a preliminary injunction to restrain a judgment creditor from proceeding with executions levied against the personal property, it appeared that the judgments were subsequent to the mortgage, but it was claimed by the holders thereof that the mortgage did not cover the furniture and fixtures. The court granted a preliminary injunction restraining further proceedings under the judgments mentioned, the decree preserving the creditor’s right to have his execution satisfied out of the proceeds of the sale of the personal property of the hotel, if he had such a right. The bond given insured the payment for said property of' a sum largely in excess of what would be required to pay the judgment creditor if he had the preference which he claimed. Held, that the preliminary injunction ghould not be disturbed.</p>

<p>Contracts — Corporate, mortgages — Bonds—Agreement to purchase coupons — Construction of contract — Equity — Maxims— “Equity considers that as done which ought to have been done”' — • Contemporaneous construction — Unambiguous contract.</p> <p>1. The maxim, “Equity considers that as done which ought to have been done,” is of much more limited application than its terms would suggest. It presupposes a contract under which a party would have had a benefit from something which it was agreed should be done, but which was not done. In such case there is an equitable right to have the case considered as if the thing contracted for had been done. But in the application of this principle the court is not at liberty to go beyond the sphere of contract relation created by the parties. Courts cannot make for them an agreement into which they have not entered.</p> <p>2. Where an agreement is stated in clear and unambiguous language, so that there is no uncertainty as to the sense of the language which was used, there is no room for the consideration, of any contemporaneous eonstnietion by the parties.</p> <p>3. In a proceeding in equity by the trustee of bondholders under a corporation mortgage to foreclose the mortgage and make distribution of the proceeds of sale Of the mortgaged premises, in which certain bondholders were intervening defendants, a decree awarding priority to the bonds over certain coupons was reversed where it appeared that the bonds in question to the amount of $3,-000,000 had been issued on July 1, 1870, on the property of a canal company, and contained endorsed thereon an agreement by a railroad company that in ease of the failure of the canal company to pay the interest coupons then the “railroad company will purchase the said coupons at their par value from their respective holders on presentation thereof”; that in pursuance of a reserved power in the mortgage the canal company had from time to time sold portions of its property to the railroad company, the proceeds of which sales were used by the canal company in the purchase and cancellation of bonds; that the canal company paid the interest coupons until July 1, 1888, but after that date the holders of coupons were told to take them to the railroad Company which would purchase them; that upon presentation to the latter, an agreement was presented to and signed by the person offering the coupon, setting forth that the coupons were being sold to the railroad company and agreeing that the coupons so sold should continue in full force and validity as against the canal company, which transaction continued for a period of twenty-two years. In such case, the railroad must be regarded as a purchaser of the interest coupons and the coupons so purchased are entitled under the terms of the mortgage to priority of lien over the bonds and to prior recognition in, the distribution of funds arising from the sale of the mortgaged premises.</p> <p>4. In such case, the fact that the resolution of the railroad company authorizing such agreement to purchase made reference to the transfer of collateral security, “all of which shall be held as indemnity against loss under the guarantee above provided for” is immaterial as the use of the word “guarantee” in this connection did not have and could not have the' effect of turning an agreement to “purchase” the coupons into an agreement to “pay” them for the purpose of extinguishment or cancellation.</p> <p>Mr. Justice Mestrezat dissents.</p>

<p>Appeal, No. 367, Jan. T., 1913, by defendant, from decree of C. P. No. 5, Philadelphia Co., March T., 1913, No. 958, appointing a receiver on bill in equity in case of William Moyn, Jr., v. Harry M. Rose.</p> <p>Bill in equity for the appointment of a receiver, and for other relief. Before Mabtin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, on final hearing, awarded the relief prayed for. Defendant appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Taxation — Mercantile license tax — Act of May 2, 1899, P. L. 18b — Dealers—Wholesale dealers.</p> <p>1. One who buys material to sell again comes within the proper definition of a dealer as the term is used in the Act of May 2, 1899, P. L. 184, which provides for the imposition of a mercantile license tax upon dealers in goods, wares and merchandise.</p> <p>2. On a case stated to determine whether defendant corporation was liable for the payment of the mercantile license tax imposed by the Act of May 2, 1899, P. L. 184, where it appeared that defendant was engaged in the business of purchasing cattle, slaughtering them, and selling the beef and other products obtained from the slaughtered animals to dealers in beef and beef products, the court properly held that defendant was a wholesale vendor of merchandise and was therefore liable for the payment of the tax.</p>

<p>Negligence — Master and servant — Elevators—Contributory negligence — Judgment for defendant n. o. v.</p> <p>1. In an action to recover damages for the death of the plaintiff’s husband resulting from the alleged negligence of-defendant contractors in failing to provide a proper elevator and cable, it appeared that deceased was a foreman in charge of bricklayers and other laborers engaged in the construction of a building; that an open elevator supported by a cable was used for hoisting material; that a loaded wheelbarrow had been lifted thereon to the third floor, which deceased attempted to take from the elevator, but on finding that the elevator was a little below the proper point, directed the engineer to raise the elevator platform a few inches; that while deceased was standing with one foot on the floor of the building and one foot on the elevator, the elevator suddenly fell, causing his death. It appeared that the cause of the fall was the improper clamping of the cable at the top of the elevator; which was due to the neglect of deceased after a warning; that although it was customary to throw a ratchet upon a drum to hold the elevator in a fixed position when it was at the floor for service, this had not been done; that the workmen were instructed not to ride on the elevator and were warned not to do so by a danger signal; and that it was not necessary for deceased to have placed his foot upon the elevator. The jury found a verdict for the plaintiff, but the court subsequently entered judgment for defendant n. o. v., on the ground that deceased was guilty of contributory negligence. Held, no error.</p>

<p>Criminal law — Murder—Trials^—Motion for new trial — Failure to call witness — After discovered evidence — Appeals.</p> <p>1. An assignment of error complaining of the refusal of the court to grant a new trial in a murder case and alleging that “it appeared from the record that the only witness capable of giving direct evidence of the immediate circumstances of the shooting was unknown to defendant and although in attendance at the trial on a Commonwealth subpcena, was neither called to the stand nor was notice given to defendant of an intention on the part of the Commonwealth not to call the witness,” will be overruled where it does not appear that any such reason was advanced in the court below in support of the motion for a new trial; where the name of such witness is not set forth in the assignment; where it does not appear what his testimony would have been if called or that the defendant was prejudiced in any way by the failure to call such witness.</p> <p>2. A new trial in a murder case is properly refused although in support of the motion after-discovered evidence is alleged, where the only proof of such after-discovered evidence is the ex parte affidavit of defendant as to what he expects the witness to testify to if a new trial should be granted and where from the averments of the affidavit it does not appear that, if the testimony had been presented, it would have aided the defendant or have altered the verdict.</p> <p>Criminal law — Murder—Evidence—Flight—Threats;—Premeditation — Degree of guilt — Murder of first degree.</p> <p>3. On the trial of an indictment for murder, where there was evidence that the deceased had been shot by the prisoner and that thereafter the prisoner fled and placed himself in hiding, the trial judge made no error in charging the jury that “flight or concealment, therefore, gentlemen, is only a circumstance for your consideration together with all other circumstances in determining the degree of guilt if any.”</p> <p>4. In such case, evidence to the effect that when defendant left the house where deceased lived, he said, “There will be blood running around through this house in a short time” was admissible to show a threat and as indicating premeditation, particularly where defendant said to the husband of deceased, “Not your blood, but somebody else’s.” Such evidence taken in connection with evidence that defendant had a dispute with deceased; that deceased had ordered defendant from the house and that defendant returned three days later and shot deceased, killing her, was enough to justify the inference that the threat was directed against deceased.</p> <p>5. Where in such case, it appeared that defendant had boarded with deceased and her husband; that he had quarrelled with deceased; that she had notified him to leave the house; that before going, he said to the husband of deceased, “There will be blood running around through this house in a short time”; that defendant on leaving the house, said, “Before I go from Elwood City, there will be blood,” and that “there will be blood running around here”; that defendant went outside, crossed the street, fired a revolver in the air and further said to deceased’s husband, “Not yoür blood, but somebody else’s”; that three days later, after deceased’s husband went to work, defendant returned to the house, found deceased alone in the kitchen, and shot her four times, killing her; that defendant immediately after the shooting was seen running from the house; that he hid himself in a railroad tunnel, where he remained till the evening of the next day, when he came out and was arrested, a verdict of guilty of murder of the first degree was justified by the evidence, and a sentence of death in such cases was affirmed.</p>