Volume 246 — Pennsylvania State Reports

<p>Negligence — Railroads—Death of employee — Acts of Congress of April 22,1908, 85 Stat. 65, c. 149, and March 2,1898, 27 Stat. 581, ■ c. 196.</p> <p>1. In an action against a .railroad company brought under the Acts of Congress of April 22, 1908, 35 Stat. 65, c. 149, and March 2, 1893, 27 Stat. 531, c. 196, to recover damages for the death of plaintiff’s husband, the burden is upon the plaintiff to prove the facts necessary to show the violation of the Federal statutes, and that the injured party was engaged in interstate commerce, or with its instrumentalities at the time of the accident.</p> <p>2. In such case where it appeared that decedent was employed as a brakeman in the freight yard of the defendant company and that he was injured while coupling empty cars, but the only evidence from which it could be inferred that the cars which deceased was coupling were being used in interstate commerce was that in the yard in which he was employed, cars containing both intra and interstate commerce were received, stored, shifted, and reloaded from time to time, there is no presumption that the cars being shifted at the time of the accident were intended for use in interstate commerce.</p> <p>Nvidence — Suppression of evidence — Rule of spoliation — Negligence — Railroads.</p> <p>3. Where in an action against a railroad company under the Acts of .Congress of April 22, 19'08> 35 Stat. 65, c. 149, and March 2, 1893, 27 Stat. 531, e. 196, to recover damages for death of plaintiff’s husband, a brakeman who was fatally injured while coupling cars, defendant’s clerk who.kept certain records of cars moved in the yard was subposnaed by plaintiff to produce the records of the conductor of the train which injured deceased, for the purpose of showing what cars such conductor moved in the freight yard on the night of the accident and the witness testified that he had no such records, and that upon inquiry he was informed that no records of empty cars were kept, the contention of the plaintiff that defendant had suppressed the evidence and that therefore a presumption arose that the evidence, if produced, would show that the cars were being used in interstate commerce, was without merit, in the absence of other evidence from which it could be inferred that the cars which, deceased was coupling were being so used, or were intended for such use.'</p>

<p>Appeal, No. 335, Jan. T., 1913, by plaintiff, from , judgment of C. P. Lackawanna Co., June T., 1910, No. 438, for defendant non obstante veredicto, in case of Miles Land Company v. Hudson Coal Company.</p> <p>Ejectment for land in Moosic Borough.</p> <p>The facts appear in the following opinion of Johnson, P. J., specially presiding, sur defendant’s motion for a new trial and for judgment n. o. v.:</p> <p>This is an action of ejectment brought to recover one acre and twenty-four perches of land situate in the Borough of Moosic, in Lackawanna County, on which are located a coal shaft, engine house, and boiler house. The case came on for trial, was submitted to the jury and a verdict was rendered for the plaintiff. The defendant is now asking for judgment non obstante veredicto and, if this is refused, for a new trial.</p> <p>The land in dispute lies on the southeasterly side of the Lackawanna river and is claimed by the plaintiff to be included in the two grants of adjoining tracts of land from the Commonwealth of Pennsylvania to Harmon A. Chambers, covering the Lackawanna river and bounded on the east by the Pine lots, senior surveys. The plaintiff contends that the western boundary of the Pine lots is some distance east of the Lackawanna river and that the land in dispute is located between the western boundary of the Pine lots and the eastern shore of the Lackawanna river and therefore lies within the grants to Harmon A. Chambers whose title has by different conveyances become vested in the plaintiff. The defendant, owner of the Pine lots adjoining plaintiff’s land on the east, contends that the western boundary of the Pine lots is the Lackawanna river, that there is no space between them and the river, that the land in dispute is contained within the Pine lots and therefore belongs to the defendant. The sole issue in this case therefore is to determine whether or not the Lackawanna river is the western boundary of Pine lots Nos. 3, 4, 5, and 6 which, if they run to the river, include the land in dispute. If the Lackawanna river is the western boundary of these lots, the plaintiff has no title to the land in question. If it is not, the defendant has no title.</p> <p>The defendant claims that in the surveys of the Pine lots the Lackawanna river is called for as their western boundary. The plaintiff disputes this and contends that the Pine lots must be located on the ground by the courses and distances given in the surveys which places this western boundary some distance east, of the river. The western line of the Pine lots as contended for by the plaintiff, is not marked upon the ground by any natural or artificial monuments. Before attempting to determine the western boundary of the Pine lots it is necessary to have in mind the rule of law which governs in the location of land. It is stated in 4 Am. & Eng. Enc. of Law, 2 Ed., page 764, as follows: “Natural monuments are objects permanent in character which are found upon the land as they were placed by nature, such as streams, lakes, and ponds, shores and beaches, also highways and streets, walls, fences, trees, hedges, springs and rocks, and the like.</p> <p>“All lands are supposed to be actually surveyed, and the presumed intention of the grant is to convey the land according to such actual survey. Consequently, wherever natural monuments, referred to in the description of a deed as marking the boundary, can be found, they fix the limits of the premises granted, though they correspond neither with the courses and distances, nor with the quantity of the land given in the same descriptions.” The same principle is laid down in 5 Cyc. 918: “In the absence of marked and established boundaries, natural objects called for as the boundary of a survey, being more certain and permanent, control calls for courses and distances; but this rule will not be enforced when either the instrument itself or the clearly expressed intention of the parties would be thereby defeated, or when the rejection of a call or calls for natural objects would reconcile other parts of the description and leave enough to identify the land.” In Leading Cases in the American Law of Real Property, Sharswood and Budd’s Edition, Vol. 4, page 357, we have the following statement of the rule: “The first rule is that, where there is a conflict between monuments, whether natural or artificial, and the courses and distances named in a deed, the former must control and the distances must be contracted or extended and the courses deflected so as to accord with the monument.”</p> <p>The rule as above stated by the text writers is clearly held to be the law of Pennsylvania by Chief Justice Gibson in Cox.v. Couch, 8 Pa. 147, on page 154, where he says: “It is a principle of construction, that where land is described by courses and distances, and also by calls, for ad joiners, the latter, where there is a discrepancy, invariably govern; and it is as applicable to conveyances as it is to official surveys. By reason of imperfection of instruments, as well as inéqualities of surface and carelessness of assistants, extreme accuracy is not to be attained by the compass and chain; while, on the other hand, calls for natural objects, or, what is much-the same, known and established lines of contiguous tracts, admit of perfect certainty. When a vendor, therefore, conveys.by established landmarks, the subject of the grant will neither overrun nor fall short of them. They form the true boundary, and the courses and distances serve but to point towards the place.”</p> <p>Pine lots 3, 4, 5, and 6 were surveyed independently of the block of the Pine lots and therefore, if possible, we must locate the western boundary of these Pine lots by their own monuments or calls as indicated in the surveys before resorting to extrinsic evidence.. We are supported in this view by the opinion of Mr. Justice Stewart in Collins v. Clough, 222 Pa. 472, where, on page 481, he says: “With the question of priority of location settled, it would yet remain with the plaintiffs to show that the original location of the warrants under which they claim, embraces the disputed territory. The law indicates in no uncertain way the kind of evidence required for the purpose, and makes clear distinction between what is best and what but secondary. Involved in the very idea of priority is that of separate individual location. We are then dealing here with a survey actually made of an independent, separate member of an established block. Such a survey is to be located by the work of the surveyor found upon the ground, if it can be traced; in other words, by its own marks and monuments, aided, if need be, by the legal presumptions: Ferguson v. Bloom, 144 Pa. 549. Where admitted marks and monuments are found answering to the calls of the survey they establish conclusively the location. As has been said, these are the official footsteps of the deputy surveyor, and are therefore the highest and best-evidence of the true location. If some only of these original marks-and monuments can be found, it is. entirely competent to show that others, answering to the calls did at one time exist, and where. If the testimony fails to supply them all, the legal presumption will supply those unaccounted for. It is only in the absence of such marks upon the ground, and the total failure of the evidence to supply them, that recourse can be had to the lines and calls of the block, or the lines and calls of any junior member of that block or any other. Both these methods cannot be resorted to at the same time: Ferguson v. Bloom, 144 Pa. 549; Grier v. Penna. Coal Company, 128 Pa. 79.”</p> <p>In determining whether the Lackawanna river is the western boundary of Pine lots numbers 3, 4, 5 and 6 we shall consider separately the survey of each lot. In the draft of the survey of Pine lot No. 3 made by Henry Colt June 23,1831, we find the following adjoiners given: “No. 2,” “Down Lackawanna,” with the flow lines of the river indicated “No. 4” and “No. 36,” Lots “No. 2,” “No. 36” and “No. 4” are adjoiners. “Down Lackawanna,” with the flow lines of the river, stands in the same relation to Lot No. 3 as “No. 2,” “No. 36,” and “No. 4.” This survey was evidently abandoned and on June 1, 1869, Harmon A. Chambers applied for a warrant and survey for Pine Lot No. 3 in which he described the same as follows: “Adjoining Pine Lot No. 4, Lot No. 36, First Division, on the southwest, Pine Lot No. 2 on the northwest and Lackawanna river on the north.” The warrant and draft together with the description of the draft give the same adjoiners.</p> <p>The patent to Harmoñ A. Chambers dated August 3, 1870, contains the following description: “Beginning at a corner in line of Lot No. 36, First Division, thence along said line forty-nine and one-half degrees west seven perches to another corner in said line, thence by Pine Lot No. 2 north forty-three and one-half degrees east thirty-six and one-tenth perches to a corner near Lackawanna river, then up said river south seventy-six degrees east eight perches to another corner near said river; thence by said Pine Lot No. 4 south forty-three and one-half degrees west forty and two-tenths perches to the beginning, containing one acre and one hundred and seven perches strict measure.”</p> <p>The Lackawanna river is clearly a call and the western boundary of Pine Lot No. 3 runs to low water mark and therefore there is no vacant space between it and the Lackawanna river. In this conclusion we are supported by our Pennsylvania decisions. In Klingensmith v. Ground, 5 Watts 458, the court say: “A corner tree is not always to be had where it is wanted, and where that is the case, it is the practice to mark the next convenient one, leaving the exact point of intersection to be determined by an extension of the lines, as marked on the ground. Where a running stream is called for, it is always understood that the ownership extends to low water mark, and so far has this been held in Pennsylvania, that a traverse line has been held, technically to pursue the meanders, so as to include the points that would otherwise be thrown out by it. Though the words ‘near the creek,’ strictly speaking, imply the existence of space betwixt the object immediately expressed, and the object of reference beyond it, they indicate, in popular meaning, no more than the whereabout. Such is the general rule and what is there to take the case out of it? If the words ‘thence up the creek north,’ do not call for the creek as a boundary, why was the creek mentioned at all? The argument on the other side is, that the course being also given, no more is necessary to close the survey. But if the course were sufficient to express the whole intent, we are unable to conjecture why a natural object should have been employed.” In Younkin v. Cowan, 34 Pa. 198, on page 200, Woodward, Judge, delivering the opinion of the court lays down the following rule: “That lines actually marked on the ground constitute the survey of a land warrant and control the surveyor’s return, even where that calls for a natural or other fixed boundary; and that where lines are not actually run and marked on the ground the survey is to be carried to its calls of adjoiners, even though it overrun the distances returned on the survey, are fixed and familiar rules of property that are not questioned in this case.” In Wharton v. Garvin, 34 Pa. 340, page 342, Justice Thompson says: “Generally, a survey is to be carried to its calls, unless there are actual lines on the ground excluding them.?’</p> <p>Pine lots numbers 4 and 5 adjoining lot 3 were surveyed’together. No warrant was offered for this tract. ■There is one patent covering Pine lots 4, 5, 6 and 7. The draft Of Pine lots 4 and 5 gives “No. 3,” “No. 36, First Division,” “No. 6;” and “Down Lackawanna” as calls or adjoiners. Pine lot “No. "3,” lot “No. 36” and Pine lot “No: 6” we know are adjoiners. In the draft “Down Lackawanna” is used with reference to Pine lots 4 and 5 in the Same relation as “No. 3,” “No. 36” and “No. 6” are used. - Therefore, from the draft, the conclusion is irresistible that “Down Lackawanna” is a call just as “No. 3,” “No. 36” and “No. 6” are calls. From this we conclude that Pine lots 4 and 5 extend to the Lackawanna river and therefore that there is no land between them and the Lackawanna river. We are confirmed in this conclusion by the patent for lots 4, 5, 6 and 7, which is some evidence as to the adjoiners, in which the following descripition is given: “Beginning at a corner, thence up Lackawanna river, south seventy-nine and one-half degrees east thirty-three perches and one-tenth to a corner, thence by Lot-No. 8 south forty-degrees west fifty-seven perches and three-tenths to a corner, thence by Lot No. 36 of the First Division north fifty-three degrees west twenty-nine perches to a corner and thence by Lot No. 3 north forty degrees east forty perches and two-tenths to the beginning.”</p> <p>■ The draft to the return of survey of Pine lot No. 6 shows the following adjoiners: “No. 5,” “No. 36, First Division,” “No.'7,” and “Up Lackawanna.” Here again we' know Pine lot “No. 5,” lot “No. 36, First Division,” ■and Pine-lot “No. 7” are calls or adjoiners. “Up the Lackawanna” is used in the same connection with reference to Pine lot No. 6. Therefore, it is a call or the western boundary of lot No. 6 and there is no land between ■this’lot and the -Lackawanna river. ' The . description in the patent covering this lot has been, given above.</p> <p>That we are correct in our conclusion that the Lackawanna river is the western boundary of Pine lots ntunbers 4, 5, and 6, will appear from the following authorities: “In construing the description in a conveyance which bounds the lands conveyed upon a body of water courts incline strongly to such an interpretation of the language as will pass all the riparian rights to the grantee, and it will be presumed, in the absence of a clear showing to the contrary, that the adjacent flats and shore, to the extent of the grantor’s rights therein pass as appurtenant to the highland. On the other hand, a grant or conveyance of flats or shore passes no title to upland by presumption.” 5 Cyc. 892. In this connection it is well to revert to Klingensmith v. Ground, supra, where the court said: “If the words, ‘thence up the creek north,’ do not call for the creek as a boundary, why was the creek mentioned at all? The argument on the other side is, that the course being also given, no more is necessary to close the survey. But if the course were sufficient to express the whole intent, we are unable to conjecture why a natural object should have been employed.” In Wharton v. Garvin, supra, Justice Thompson says: ‘We are predisposed to presume the existence of an intent to bound surveys on navigable waters by the stream, not only on acount of a supposed advantage arising from such a location, but because it is in accordance with practice.” In Wood v. Appal, 63 Pa. 210, on page 221, Justice Agnew, delivering the opinion of the court says: “Even since the case of Carson v. Blaser, 2 Binney 475, decided in 1810, it has been h$d in many cases that a survey returned as bounded by a large navigable river, vests in the owner the right of soil to ordinary low-wátei* mark of the stream, subject to the public right of passage for navigation, fishing, etc., in the stream between ordinary high and ordinary low-water mark. Variety in the language of the return matters little, so that the intention to make the stream a boundary appears sufficiently in the description and diagram.” And further on page 224 lie says: “The result of the cases is, that when a return of survey calls for a stream as its boundary, or to run by, along, up or down it, the title will run to the stream and the marking of trees on the bank or margin of the stream to identify the lines run to the river, as well as the return, of course and distances measured along the margin, necessarily to ascertain the quantity of land in the survey, will not restrain the title to the bank or margin only.”</p> <p>The plaintiff relies chiefly upon the cases of Kelly y. Graham, 9 Watts 116, and Wharton v. Garvin, 34 Pa. 340, but these cases are clearly distinguishable from the case now before us. This distinction will appear in Wood v. Appal, supra, where Chief Justice Agnew says, quoting Justice Kennedy in Kelly v. Graham: “The survey, as returned here by the deputy surveyor, as also all the other evidence on the subject, shows most unequivocally that the river is not made a boundary in it, and indeed that it could not have been so intended. The draft of the survey returned is made out according to the courses and distances actually run and marked upon the ground, and not made to call for the river on any side or point whatever. At some distance from the survey, however, the Allegheny river is laid down upon a straight line without any regard to its meanders, as if it were intended by the artist merely to show that the land included within the survey lay near to the river.”</p> <p>The case of Wharton v. Garvin is distinguished in the following reference by Agnew : “The diagram exhibited no protraction to the river, and the closing line was represented as a straight line of 238 perches long, leaving a large vacancy between it and the river. The return did not call for the river as a boundary, but it was represented at some distance off with the words written within representation, ‘up Allegheny.’ ” The opinion was written by Justice Thompson, the present Chief Justice, who was careful to distinguish the case upon its facts. He remarked that generally a survey is to be carried to its calls unless there are actual lines on the ground excluding them; that a call to stand as a boundary must be indicated to be such with sufficient certainty to show that it was so intended. The representation of an object at a distance from a closing line without any words indicative of an intent to make it a boundary would hardly be sufficient to constitute it such. The line plotted at a distance would have little weight, he remarked, if the river had been made the call, and as it is not so made in terms and appears to be excluded by the draft, it is a circumstance of controlling influence, as held in Kelly v. Graham, supra. Thus it was the Intent' of the surveyor (appearing clearly in the return of survey) to bound the survey on the 238 perch line, and not on the river, which controlled the decision. Instead of impugning the general doctrine the case supports it, and the judge remarked: “We are predisposed to presume the existence of an intent to bound surveys on navigable waters by the stream, not only on account of the supposed advantage arising from such location, but because it is in accordance with practice.”</p> <p>There are other reasons to support the conclusion to which we have already come, that the western boundary of Pine lots 4, 5, and 6 is the Lackawanna river, but it is unnecessary to refer to them.</p> <p>Whether or not the Lackawanna river was a call and the western boundary of lots numbers 3, 4, 5 and 6 is a question of law for the court and not of fact for the determination of the jury. “What are boundaries is a matter of law for the court;, where they are, a matter of fact for the determination of the jury under proper instruction from the court.” 5 Cyc. 969. “The meaning of a deed, that is, what it covers, is a question of law for the court; what the boundaries of a given piece of land are is a question of construction for the court also; where they are is a question of fact for the jury.” 4 Am. & Eng. Enc. of Law, 2 Ed. 809. “Where the boundary lines of a grant are fixed by the grant itself, the question as to what these lines are is purely one of law.” 3 Enc. of Plead, and Prac. 676.</p> <p>As the Lackawanna river is the western boundary of Pine lots numbers 3, 4, 5 and 6, and as.the land in dispute is located within them, the jury should have been instructed to find a verdict for the defendant. The question of the location of this boundary having been submitted to the jury and a verdict rendered for the plaintiff, the motion for judgment non obstante veredicto should now be sustained.</p> <p>: Verdict for plaintiff for' the land described in the writ. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned, among others, was the judgment of the court.</p>

<p>Appeal, No. 262, Jan. T., 1913, by defendant, from judgment of C. P. Berks Co., Nov. T., 1910, No. 54, on verdict for plaintiff in case of Robert L. Reeser v. Metropolitan Electric Company.</p> <p>Trespass to recover damages for personal injuries. Before Endlich, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,400, 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>Appeal, No. 29, January Term, 1914, by Delaware Storage & Freezing Co., from decree of C. P. No. 2, Philadelphia County, June Term, 1908, No. 3855, dismissing exceptions to auditor’s report in case óf trustees of the Roman Catholic High School of Philadelphia v. Charles F. McCann and Joseph A. McCann, Mortgagors; McCann Brothers Ice Company, Real Owners; Delaware Storage and Freezing Company, Second Mortgagee; Edward Fay & Sons, Mechanic’s Lienor.</p> <p>Scire facias sur mortgage.</p> <p>Exceptions to report of Michael F. McCullen, Esq., auditor. Before Sulzbebgee, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. The Delaware Storage & Freezing Company appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 291, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 4, Sept. T., 1909, No. 1158, non obstante veredicto in case of Charles M. Vile v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for injuries to plaintiff’s * land caused by the discharge of cinders, smoke, etc., from defendant’s locomotives. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,500; the court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Street railways — County bridges — Use of street railways — Agreements — Termination—Rights in new bridge — Reasonable rental— Police power — License fees — Appeals—Evidence—Harmless error— Equity.</p> <p>1. While the terms upon which a street railway company may use a county bridge are a matter of agreement, in the first in-stance, between the railway company and the county, and the railway company may not occupy the bridge without the consent of the county, that consent may not be arbitrarily withheld.</p> <p>2. An agreement between a street railway company and a county relating to the manner of use of a county bridge and the rental to be paid for the franchise, terminates with the lawful demolition of the bridge by the county, and does not give rise to any rights on the part of the railway company in a new bridge thereafter built by the county.</p> <p>3. While a street railway company which has acquired from a county the right to use a bridge of which the county is the owner without payment of any.rental, cannot thereafter be compelled to pay rental for the use of the bridge, and may only be required by the county, in the exercise of the police power, to pay such a license fee as will reasonably cover the cost of repairs, maintenance end supervision, necessitated by the extraordinary use to which the structure is subjected, the right to use a new bridge, in which the railway company has no vested interest, can only be acquired upon the reasonable terms and conditions imposed by the county. In such case the authority to demand and the obligation to pay are not referable to the police power.</p> <p>4. In a suit in equity brought by certain street railway companies to enjoin a county from preventing the plaintiffs from running their ears over a bridge newly erected by the county, the defendant filed a Cross-bill praying for a decree fixing the compensation to be paid by plaintiff for the use of the bridge. It appeared that the plaintiffs and defendant had previously, by agreement, fixed the annual rental to be paid for the use of a former bridge at $600, and that this bridge had been lawfully demolished, and that a new bridge had been- erected by the county at a cost of more than $575,000. The court admitted evidence as to the excess in cost which the building of the new bridge adapted for street railway use as well as for ordinary travel necessitated over what the cost would have been had only ordinary travel been provided for, and found such excess to be $100,000; and further found that the agreement relating to the old bridge was terminated when the bridge was demolished; that the county was not restricted to charging merely a license fee for the use of the new bridge, based upon the increased cost of maintenance, and could charge the railroad companies a reasonable rental; that a rental of $3,000 annually for the first two years, $4,000 annually for the succeeding two years, and $5,000 annually thereafter for the next six years was reasonable, and decreed that the plaintiff be enjoined from using the bridge except upon compliance with these terms. Held, no error.</p> <p>5. On appeal from a decree in an equity case fixing the compensation to be paid by the railway company for the use of a county bridge, the question before the Supreme Court is whether the decree was based upon proper and competent evidence, and whether it is fair and reasonable under all the circumstances.</p> <p>• 6. In such ease the admission of irrelevant evidence relating to the compensation paid by street railway companies in other pounties for the use of public bridges does not constitute reversible error where it appears that the chancellor gave no consideration whatever to such evidence.</p>

<p>Appeal No. 38, Jan. T., 1914, by Nettie I. Moyer, from decree of O. C. Berks Co., June T., 1913, No. 51, dismissing appeal from decree of Register of Wills, refusing an issue devisavit vel non in Estate of Edgar W. Alexander, deceased.</p> <p>Appeal from decree of register of wills refusing an issue devisavit vel non. Before Bushong, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court affirmed the decree of the register of wills refusing an issue devisavit vel non. Nettie I. Moyer appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Negligence — Vehicles,—Passenger on street car — Collision— Drivers — Proximate pause — Loss of earning power — Case for jury —Correct instructions--Court and jury.</p> <p>1. In an action to recover damages for personal injuries sustained by plaintiff in consequence of the collision of a trolley car on -which plaintiff was riding and defendant’s van, an instruction to the jury 4o the effect that if the accident was occasioned solely by the r .Norman’s running the car into the wagon when by proper care he <sould have avoided so doing, there can be no recovery, and in ordfi/r to find for the plaintiff the jury would have to believe that the accident was due to the negligence of the driver, is not open to tKe charge of inadequacy on the question of proximate cause, wheire it appeared that the plaintiff, an employee of a transit company,, was riding on the platform of a street car; that defendant’s van driven by one of his employees approached the car on an adjacent parallel track, that the horses of the van turned diagonally afcross the track on which the car was running and collided with it, ^driving the tongue of the wagon into the car and knocking the controller box violently from its place so that it struck the plaintiff and inflicted the injuries complained of, and there was evideuce that the driver was negligent in allowing the reins to lie loose on the hacks of the horses and in taking them up without due care in such a way as to swing the horses precipitately in front of the approaching car.</p> <p>2. Where in such case the evidence was conflicting as to whether or not a rut in the highway caused the horses to swerve, the trial judge committed no error in charging the jury that if they believed the accident due to a hole or rut in the street which the driver could not see, they might conclude that the injury to plaintiff was . caused by an unavoidable accident, but as there was no evidence that the driver could not see the alleged hole and that in broad day light, he was obliged to observe ruts in a street; and this is particularly true where the driver admitted that he saw the rut in front of him before he got into it.</p> <p>3. In such ease, an assignment of error complaining that the jury were permitted to allow for future losses in the absence of evidence showing permanent diminution of earning power, is without merit where the proofs showed that plaintiff was sixty-one years old at the time of the injury, that prior thereto he had been in good health and had been steadily employed for twenty-seven years; that during the last three or foiir years of such period, he earned $12.60 per week; that as a result, of the accident, his health was bad; that he had difficulty in standing upright or in walking any considerable distance; that he had been unable to work or earn any wages whatever; that his legs would never be straight; and where the opinion of medical experts was that the “prognosis is not very encouraging” and that it was impossible,.to say what strength he would develop later on; and the trial judgb^made no error in allowing the jury to find for plaintiff whatever be was “liable to lose” in the way of future earnings. \</p> <p>Practice, C. P. — Charge to jury — Exceptions—Genteral exceptions — Assignments of error. \</p> <p>4. While a litigant is entitled as a matter of right td except generally to a charge and under such an exception he mayNassign all actual errors of law or any material matter so inadequately presented as to be calculated to mislead the jury and may assign the whole charge as inadequate if it fails to present the real questions in the case or if its general effect is to mislead the jurors concerning the material issues involved or their duties in connection therewith, it is still the general rule that error can not be as signed of what was not said by the trial judge without a reques so to charge; a litigant may. not sit silent and take his chances on a verdict and if it is adverse complain of a matter which if error would have been immediately rectified, if the attention of the trial judge had been called to it.</p>

<p>Contracts — Equity — Canal companies — Power companies — Deeds — Grants of water rights — Construction—Intention—Bill for injunction — Demurrer.</p> <p>1. A grant of water power is not a grant of water for anything else than the propulsion of machinery; it is not a grant of property in the corpus of the water as a chattel.</p> <p>2. The employment of the term, “horse power,” in a lease conveying the right to draw water from a canal as the standard by which the water so drawn is to he measured, discloses the intention of the parties to the lease that the water shall he used solely for producing power, not for consumption.</p> <p>3. A bill in equity filed by a power company to restrain a canal company from a threatened shutting off of a water supply furnished under a contract, is properly dismissed where it appears that the parties, who had prior contractual relations in reference to such water supply, had entered into a new contract reciting that the plaintiff desired “to adopt a different method for computing the water rent to be paid annually so that the computation shall be based on the amount of horse power furnished rather than the number of square inches,” which had previously been the basis of measurement, and granted to the plaintiff power company the right to use sufficient water from the canal to produce 1,500 horse power continuously, at a stipulated annual rental; that the plaintiff claimed the right to use part of the water so drawn for condensing, whereby the water was consumed and its flow back into the canal prevented; and that the defendant denied the right of the power company to use water for purposes other than the development of power and threatened to shut off the plaintiff power company's supply unless an additional compensation was paid for water used for condensing.</p>

<p>Appeal, No. 104, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1913, No. 1777, for defendant, discharging rule for judgment for want of a sufficient affidavit of defense in case of National Metal Edge Box Company v. American Metal Edge Box Company.</p> <p>Assumpsit on an implied contract.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before McMichael, P. J.</p> <p>Rule 45 of the Rules of the Courts of Common Pleas of Philadelphia County was as follows:</p> <p>“In actions on contracts, the plaintiff shall state whether the contract was oral, written or implied; if oral, he shall state its terms; if written, he shall attach a copy; if implied, he shall state the facts from which it is to be implied.”</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule for judgment for want of a sufficient affidavit of defense. Plaintiff appealed.</p> <p>Error assigned was in discharging the rule.</p>

<p>Appeal, No. 404, Jan. T., 1913, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1908, No. 1239, on verdict for defendant in case of The Knickerbocker Ice Company of Philadelphia v. City of Philadelphia.</p> <p>Appeal from award of a board of viewers in the matter of change of grade of Whitby avenue. Before Ralston, J.</p> <p>From the record, it appeared that the court admitted evidence relating to the circumstances surrounding the dedication of Fifty-third street, which was unopened and which intersected Whitby avenue, and evidence relating to a release of the damages which might be caused by the opening of Fifty-third street, executed by a former owner of the property.</p> <p>The court excluded the testimony of Walter Lee the president of the Knickerbocker Ice Co. as to the extent of the depreciation in value after the change of grade, on the ground that the witness had not been shown to be an expert in real estate values.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were in admitting certain evidence referred to in the opinion of the Supreme Court, instructions to the jury and answers to points.</p>

<p>Appeal, No. 77, Jan. T., 1914, by Emporium Iron Company, from decree of C. P. No. 5, Philadelphia Co., June T., 1913, No. 4381, in equity awarding fund in case of Commercial Credit Company, a corporation, v. Girard National Bank, a corporation, and Emporium Iron Company, a corporation.</p> <p>Bill in equity to determine the ownership of a fund in the hands of the Girard National Bank. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing awarded the fund to the plaintiff. The Emporium Iron Company 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>Wills — Trusts—Duration — Termination — Construction — Intention.</p> <p>1. It is a fundamental proposition in construing wills that the testator’s intention must govern and that this intention is to be gathered not from any particular words, phrase or paragraph' but from the four comers of the will, and the best way of arriving at that intention is to place ourselves in the position of the testator and from that standpoint read the will.</p> <p>2. A trust whether limited to a life or for years, will not be upheld if its purpose fail before the expiration of the life or term of years.</p> <p>3. A testator by will bequeathed his estate, which consisted in part of the stock and securities of a railroad and affiliated corporations, in trust, empowered the trustees in their discretion to invest in the securities of the railroad and affiliated corporations, and to sell the same, authorized them in their discretion to transfer to certain charitable institutions to which testator had bequeathed the income of certain funds, the principal thereof, which consisted largely of railroad stocks, provided that the railroad investments should he controlled by the trustees even after transfer to the charities if it could lawfully be done, gave the residue of his estate in trust for each of his three children and empowered each child to appoint by will one-half of such child’s share of the income during the continuance of the trust and one-half of such child’s share of the principal at the termination thereof, with a gift over of . one-half of the income of each child’s share to the children of such child during the continuance of the trust and one-half of the principal of such child’s share at the termination thereof. Testator further provided that in the event of the failure of any of such children to exercise the power of appointment, the unappointed share should be disposed of as was provided in reference to the remaining one-half of said income and principal which such child or children were not authorized to dispose of by will; that in case any of his children should die without children, one-half of the income of such child should be paid over to the survivors and their children during the continuance of the trust and one-half of the principal on the termination thereof; that in case there should be no one descendant of the said three children living at the termination of the trust, the property in the hands of the trustees should go, one-third to the children of a deceased daughter and their issue, one-third to testator’s nephews and nieces, and the remaining third to certain charitable institutions theretofore motioned. Testator further provided, “to avoid any possible misapprehension as to my purposes in the said will, I now repeat that I wish my executors and trustees to retain and continue my investments in the stock and other securities of the......railroad company and other companies connected with it during the continuance of the trusts under said will or for as long a period as at their discretion may be deemed best.” Testator also provided that the “trusts under this will shall terminate 21 years after the death of the last survivor of my three children.” Testator’s three named children died without issue. The last survivor of said children by will bequeathed that portion of the estate of her father over which she had the power of appointment, to trustees to pay certain annuities for the period of 21 years after her death and at the expiration of that time, she bequeathed the principal to certain charities. Upon the death of such surviving child, the trustees of. testator’s estate filed an account wherein it appeared that the trustees had sold, or assigned to the charities the stock and' securities of the railroad and affiliated corporations and that their control over such stock and their connection therewith had ceased. The auditing judge declared the trusts ended upon the death of the last survivor of testator’s children and awarded to the trustees appointed by the will of such last surviving child, the share of the principal of the estate which she had bequeathed and over which she had the power of appointment. Such trustees contended that the annuitants were entitled to receive their share of the income of the entire estate; that the residuary estate should be kept together for this purpose for twenty-one years from the death of the last of testator’s children and complained that they were compelled by the decree of the court to take for their beneficiaries the entire income from a fraction of the estate whereas -their right was to have a fraction of the income of the entire principal. The court in banc dismissed exceptions to the adjudication of the auditing judge. Held, that the dominant purposes of the testator were to keep under the control of the trustees designated by the testator and their successors the stock and other securities of the railroad company and its affiliated corporations for as long a period within the limits of the law as in the trustees’ judgment might seem .best, and to keep a large portion of the property in trust for the benefit of the three children named by him and their descendants as long as permitted by law; that the railroad securities having been sold or turned over to the charities and the three children having died without issue, the trust had served its purpose and should be terminated, and the decree was affirmed.</p>

<p>Wills — Vested and contingent remainders — Gift to class construction — Intention.</p> <p>1. In order properly -to determine the nature of the estate or interest possessed by remaindermen, the actual intent of the testator must first be discovered if possible, and if the will makes that reasonably clear, it is not necessary to resort to technical rules of construction.</p> <p>2. Where a bequest following a prior limitation is given to a class strictly as such, unless a contrary intent is plain the estate vests in interest, and the members of the class are to be ascertained as of the date of the death of the testator.</p> <p>3. The law leans in favor of vested rather than contingent estates and will not suffer the inheritance to be in abeyance if by any reasonable construction of the will this can be avoided. Where a future estate is limited to ascertain persons in being subject to a prior gift to others unborn or unascertained who may never come into existence, the estate so vested is subject to be divested.</p> <p>4. A legacy will be held contingent or vested as time is annexed to the gift or only to the .payment of it, and that the interests of a primary and secondary legatee may vest, quodam modo, at one and the same time so that if the secondary' legatee die before the occurrence of the event which would entitle him to receive the legacy, it becomes payable to his personal representative. The question whether or not a testator intended that the secondary legatee should survive the actual time of payment in order to possess a vested or transmissible interest is not to be judged by the mere form of expression employed in the language of the gift but by the whole scheme of the will.</p> <p>5. The word, “issue,” in a will, prima facie, means heirs of the body and is generally a word of limitation. •</p> <p>Bankruptcy — Trustees—Assignments—Property passing by assignment — Future interests created by will — Transmissibility.</p> <p>6. The bankruptcy act provides that all property which the bankrupt could have by any means transferred or which could have been levied on or sold under judicial process against him shall pass to his trustee in bankruptcy; transferability is the broad test of the trustee’s title and can not be reduced to any uniform rule since it depends upon the law of the jurisdiction in which the property is located.</p> <p>7. An executory limitation not vested in interest at the time of sale may be transferred by an assignment even at law and, consequently, it can be sold by execution. The only mere possibility that may not be so transferred is the bare hope of succession to the property of another such as may be entertained by an heir apparent.</p> <p>8. A testator leaving to survive him three children and the children of a deceased daughter, left his estate upon certain trusts, directed the payment by the trustees of certain bequests to individuals and charities,- and provided that whatever property might be in the hands of his trustees not otherwise disposed of on the termination of the trust, should be paid over, “transferred and delivered” to the descendants of the three children, and in ease there should be no one descendant of the said three children then living, the property should be divided into three parts, and that one thereof “shall go to the children of my (deceased) daughter” ......and their issue, one thereof to my nieces and nephews heretofore mentioned, and the remaining part shall go to certain charitable institutions. Testator’s three children died without issue and the trust was terminated. Two of the children of testator’s deceased daughter died, their mother having predeceased them before the making of the will; and although alive at the death of the testator, all the nephews and nieces mentioned in the will were dead when the last of testator’s three children died. During the continuance of the life estate of testator’s three children, testator’s only surviving grandchild transferred to 'bis trustee in bankruptcy “all the right, title and interest, present and future, vested or contingent” which the transferor “now has or may have under and by virtue of the provisions of the last will and testament of Asa Packer, deceased.” After the death of the last of the three life tenants, such grandchild contended that the bequests to the children of testator’s deceased daughter and their issue was a contingent remainder which did not vest until the termination of the trust estate and was not transferable by him, and that then the whole interest vested in him as the sole survivor of a class; that the interest of the nephews and nieces was contingent and that as they all died during the preceding life estates, one-half of the interest bequeathed to them passed to him. The auditing judge disallowed the claim on the ground that the interest of such grandchild and testator’s nephews and nieces vested at testator’s death, subject to be divested by the birth of issue to the testator’s children, and that the interest of the grandchild had been transferred to his trustee in bankruptcy. Held, the court in banc did not err in dismissing exceptions to the adjudication.</p>

<p>Appeal, No. 111, Jan. T., 1914, by Garrett B. Linderman, 3d, from decree of O. C., Philadelphia Co., April T., 1881, No. 323, dismissing exceptions to adjudication in estate of Asa Packer, deceased.</p> <p>Exceptions to adjudication. Before Gummey, J.</p> <p>The facts appear in Packer’s Est. (No. 1), 246 Pa. 97, and Packer’s Est. (No. 2), 246 Pa. 116.</p> <p>The court in banc dismissed the exceptions. Garrett B. Linderman, 3d, appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeals, Nos. 102 and 103, Jan. T., 1914, by the Borough Council of the Borough of Mauch Chunk and the Board of School Directors of the Borough of Mauch Chunk, from decree of O. C., Philadelphia Co., April T., 1881, No. 323, dismissing exceptions to adjudication in estate of Asa Packer, deceased.</p> <p>Exceptions to adjudication. Before Gtjmmey, J.</p> <p>The facts appear in Packer’s Est. (No. 1), 246 Pa. 97.</p> <p>The court dismissed. the exceptions. The Borough Council of the Borough of Mauch Chunk and the Board of School Directors of the Borough of Mauch Chunk, legatees under the will of Mary Packer Cummings, appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 106, Jan. T., 1914, by Lehigh University, from decree of O. C., Philadelphia Co., April T., 1881, No. 323, sustaining exception to adjudication in estate of Asa Packer, deceased.</p> <p>Exceptions to adjudication. Before Gummey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained an exception filed by the Com-' monwealth in an opinion by Lamobelle, J. The Lehigh' University appealed.</p> <p>Error assigned was in sustaining the exception.</p>

<p>Corporations — Mutual benefit associations — Members—By-laws —Violation of by-laws — Nonpayment of fine — Expulsion without notice — Mandamus—Answer—Insufficient answer.</p> <p>1. A legal member of a corporation can not be expelled without notice, for the nonpayment of arrearages; without an express power in the charter, no man can be disfranchised unless he has been guilty of some offense which either affects the good government of the corporation or which is indictable by the law of the laud. Even when allowed by the charter, there must be some act by the corporation declaring expulsion, and this can not be done without a vote of expulsion after notice to the member supposed to be in default.</p> <p>2. In mandamus proceedings for the re-instat'ement of a member of a corporation who had been removed for nonpayment of fines, an answer which failed to plead that the power of summary expulsion from membership was conferred by the charter was defective as the existence of such power was not to be presumed, and could not be created by a by-law.</p> <p>3. In a proceeding by a member of an incorporated mutual benefit association for a mandamus to compel his reinstatement as a member of the corporation, from which he alleged he had been unlawfully removed, an answer is insufficient on demurrer which avers that the expulsion complained of was on the ground that the petitioner had not paid a fine but does not aver that the society was authorized by its charter to expel members for nonpayment of fines, and it is not averred and does not appear that the petitioner was given notice of the act óf expulsion.</p>

<p>Practice, Supreme Court — Appeals—Assignments of error— Rule 26 — Defective assignments.</p> <p>,1. An assignment of error raising three distinct question's is in disregard of Rule 26 of the Supreme Court, which provides that if any specification embraces any more .than one distinct question, it should he considered a waiver of all the errors so alleged.</p> <p>Negligence — Electric companies — Wires—Responsibility—Case for jury — Infants—Damages—Instructions to jury — Evidence— Conflicting testimony.</p> <p>2. Notwithstanding that the ownership of an electric wire may he in another, the person furnishing the electricity with which the wire is charged, must be considered as in possession of and as using the wire, and such person is responsible for any injury resulting from the failure to inspect and keep it in proper condition.</p> <p>3. In an action against an electric company to recover damages for personal injuries sustained by plaintiff, a child of tender years, in consequence of coming in contact in the highway with a broken wire charged with electricity, the question of defendant’s negligence is for the jury, and a verdict for the plaintiff will he sustained where it appeared that the line of wire in which the break occurred had been constructed for and at the expense of another company, to which the defendant furnished power, and that the broken* wire had been allowed to remain in the highway for some time previous to the, accident.</p> <p>4. In such case it is immaterial that a contract existed between the defendant and the company to which power was furnished over the wire in question, to maintain and safeguard the wire at the latter’s cost, and that all that was required of defendant was to furnish for a stipulated consideration the necessary electric power; and defendant’s rights are sufficiently safeguarded by. the admission of evidence offered to show the degree of vigilance exercised by the other company to safeguard the line.</p> <p>5. In such case the plaintiff may properly claim compensation for the loss of earning power after he should arrive at the age of twenty-one years where it appeared that the injuries were of a character to produce physical disability which would impair his earning power after his arrival at manhood, although when the injuries were inflicted he was so immature as to be without earning capacity.</p> <p>6. Where in such case recovery for loss of future earning power was allowed, a new trial will not be granted because the judge failed to instruct the jury how they should estimate plaintiff’s damages for loss of future earning power, where defendant’s counsel presented no points for charge asking for such instructions and made no request for more full instructions upon the point.</p> <p>7. Where in such case it appeared that a physician called by plaintiff as a witness had seen and examined the plaintiff on the day he received the injuries and again four days thereafter and had diagnosed his injuries as slight, and that other medical experts who made subsequent examinations testified for plaintiff that what the first physician called external wounds, indicated permanent injuries, the trial judge properly refused to charge that if they believed the physician who first examined the plaintiff they would not be justified in allowing plaintiff damages for permanent injuries.</p>

<p>Appeal, No. 290, Jan. T., 1913, by defendant, from judgment óf C. P. Luzerne Co., May T., 1909, No. 545, on verdict for plaintiff in case of D. C. VanDuzer v. Commonwealth Telephone Company.</p> <p>Trespass to recover damages for personal injuries. Before Gasman, J.</p> <p>The facts appear in VanDuzer v. Commonwealth Telephone Co., 236 Pa. 538, and in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $3,000 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>Appeal, No. 387, Jan. T., 1913, by defendant, from judgment of C. P.. Columbia Co., May T., 1913, No. 284, for plaintiff, for want of a sufficient affidavit of defense in case of First National Bank of Shickshinny, Pennsylvania, v. George M. Tustin.</p> <p>Scire facias sur mortgage.</p> <p>Rule for judgment for want of sufficient affidavit of defense. Before Evans, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Corporations — Religious corporations — Contracts — Ultra vires Contracts — Ratification—Evidence—Points for charge.</p> <p>1. A religious corporation has the incidental or implied power to do whatever is reasonably necessary to accomplish the purposes for which it was incorporated and may, therefore, acting through its properly constituted officials, erect a church building.</p> <p>2. The fact that the officials of a religious corporation have exceeded their powers in making a contract for the construction of a church building without the assent of a majority of the congregation as required by the charter will not preclude recovery for the labor and materials furnished where it appears that the contract made by such officials was ratified by the church officials, trustees, building committee and congregation and by the acceptance and use of the church when erected, by the congregation.</p> <p>3. In an action of assumpsit to recover for work done and materials furnished in and about the construction of a church building, evidence was introduced to show that defendant congregation had entered into a written contract with certain contractors for the construction of the building; that when the building was partly erected, the contractors were discharged; that on the day of the discharge, the president, secretary, treasurer, four or five of the trustees and several members of the congregation entered into a verbal contract with plaintiff to complete the building and affirmed their action by a written notice signed by them and delivered to plaintiff; that plaintiff completed the edifice and that defendant corporation insured the building for $7,000 to protect plaintiff’s interest therein; that at a meeting of the officers, trustees and about thirty members representing the, congregation, defendant’s representatives agreed to pay plaintiff $200 a month until the claim was paid, and received the keys of the building, which they accepted and used thereafter. Defendant refused to pay the claim, alleging that the parties acting for the congregation were not authorized to make the contract; that the charter of the church expressly prohibited such contracts without the consent of a majority of the congregation and that the corporation never ratified the action of its alleged agents. Held, that the evidence, was properly admitted and a verdict and judgment for plaintiff was Sustained.</p>

<p>Appeal, No. 70, Jan. T., 1914, by plaintiffs, from decree of C. P. Luzerne Co., March T., 1912, No. 2, in Equity (Stating account) in case of Girard Trust Company of Philadelphia, trustee of estate of Clorinda W. Stearns, deceased; Elizabeth S. Dickerman, William G. Phelps, executor of estate of Carolina S. Phelps, deceased; Cornelia W. Shoemaker, executrix of estate of Levi D. Shoeinaker, deceased; Jane R. Shoemaker, and Esther W. Norris v. Delaware and Hudson Company.</p> <p>Bill in equity for an accounting for coal mined and removed by defendant. Before Strauss, J.</p> <p>Prom the record it appeared that prior to 1871, the Northern Coal & Iron Company and L. D. Shoemaker, the ancestor of plaintiffs, owned as tenants in common about 950 acres of land in the Township of Plains, Luzerne County. . ,</p> <p>In the year 1871 said company granted to defendant the right to mine the coal from the premises mentioned, with the consent and concurrence of the company’s co-tenant, Shoemaker.</p> <p>This defendant regularly accounted to Mr. Shoemaker every three months for the proportion of the coal larger than pea mined therefrom paying at the rate of twenty-five cents per ton for such coal that passed over a five-eighth-inch square mesh, but gave out no information relative to the smaller sizes passing through said mesh which it appropriated without paying any royalty for the same.</p> <p>In 1878, Shoemaker, who owned in severalty five acres located in the midst of the 950 acres, granted the coal on said five acres to defendant, to be paid for at the rate of twenty-five cents per ton, and he expressly agreed that:</p> <p>“Any coal which will pass through a five-eighth-inch square mesh is not to be paid for.”</p> <p>This lease recited that the defendant has mined and is mining the coal from the surrounding land held in common “with the consent and concurrence of Shoemaker,” the defendant “paying and has paid to Shoemaker for his proportion of the coal heretofore mined from the land so held in common at the rate of twenty-five cents per ton, and in accordance with their usual condition and practice.”</p> <p>The terms of said coal lease provided:</p> <p>“It is further agreed that the said party of the second part (defendant) may continue to mine the coal from the land so held (in common)......paying the said Shoemaker, his heirs and assigns, at the rate of twenty-five cents per ton for his proportion of the coal so mined, as heretofore, and according to their established usage and practice.”</p> <p>From the time of this agreement the coal from the five acres was mined, together with the coal from the land held in common, and was all commingled in preparation at defendant’s several breakers.</p> <p>As had previously been the practice, statements were regularly sent to Shoemaker up to the time of his death and thereafter to his heirs, the plaintiffs, covering a period of some forty years, and embracing in the statements the number of tons of sizes larger than pea mined from the five acres, as well as the number of tons of sizes larger than pea mined from the land in common, but such statements gave out no information relative to the smaller sizes which defendant company was appropriating without paying any royalty for the same.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>The court directed an accounting and on final hearing found that plaintiff was entitled to a decree for $33,-633.71 with interest. Defendant appealed.</p> <p>Errors assigned, among others, were in dismissing exceptions to various findings of fact and law of the trial judge and the decree of the court.</p>

<p>Muncipalities — Townships—Contracts—Powers of supervisors— Governmental powers — Business powers — Bight to employ counsel —Duration of contract for legal services — Act of March 21, 1911, P. L. 8 — Improvident contracts — Ultra vires act of supervisors— Judgment for defendant n. o. v.</p> <p>1. Municipalities, no matter how high their grade, can exercise no powers save those for which there is express statutory authority or such as are necessary to the exercise of their corporate powers and which are therefore implied.</p> <p>2. There is a clear distinction between the governmental and business or proprietary powers of municipalities. With respect, to the former, their exercise is so limited that no action taken by the governing board is binding upon its successor, whereas the latter are not subject to such limitations and may be exercised in a way that will be binding upon the municipality after the members of the contracting board have gone out of office.</p> <p>3. From the fact that townships may sue and be sued, power to employ counsel is implied, and this power they may exercise as occasion arises or they may engage counsel for a term as the judgment of the supervisors may determine, but in engaging counsel, supervisors are acting as the agents of the township and are exercising the governmental as distinguished from the proprietary or business function of the municipality.</p> <p>4. A contract between the supervisors of a township and an attorney for legal services to be rendered by the attorney for a term to begin after the commencement of a new fiscal year, when a board otherwise constituted would be in office, is beyond the power of the contracting board and is invalid. The fact that under the Act of March 21, 1911, P. L. 8, one member who ordinarily would have retired at the expiration of such year was empowered to act for another year, does not prevent the application of the rule.</p> <p>5. A contract between a township and an attorney for the rendition of legal professional services by the latter which is so extravagantly improvident under the circumstance that it is to be condemned as an unwarranted exercise of power, is unenforceable.</p> <p>6. In an action to recover salary alleged to be due under a written contract entered into by plaintiff with the supervisors of a township, dated December 15,1910, whereby the township engaged plaintiff and another attorney to act as counsel for the next ensuing fiscal year, beginning in March, at a salary of $2,500 each, it appeared that the constitution of the board of supervisors would have been changed in March, 1911, by the expiration of the term of service of one supervisor, to whose place a newly elected supervisor would have succeeded had it not been for the extension of his term by the Act of March 2, 1911, P. L. 8; that at the time when the contract was made, the attorney stood in the relation of counsel to the board under a then existing and uncompleted contract; that there was nothing in the situation calling for haste in the selection of counsel and it did not appear that anything was anticipated which would require of counsel service commensurate with the s.alary paid. The jury found a verdict for plaintiff for the amount of his claim. Held, the court did not err in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 124, Jan. T., 1914, by defendant, from judgment of- p. P. Luzerne Co., Oct. T., 1912, No. 312, for plaintiff on rule for judgment for want of a sufficient affidavit of defense in case of George Lazarus, William W. Lazarus and Melissa Lazarus, executors of C. B. Lazarus, deceased; Lucinda M. Brundage, Margaret D. Bennett, A. E. Brader and Martha Brader (representatives of Stella Brader, deceased) ; W. H. Lueder, A. .B. Lueder, P. A. Lueder, C. A. Lueder, Fannie Conover and Edith Lewis, all heirs and representatives of Thomas Lazarus, deceased; William Stoddard, executor of John Lazarus, deceased; William J. Spendley and Ernest M.. Herring, executors of Richard Gunton, deceased; Thomas P. Blodgett, Charles Blodgett, Alma Rinehimer, Ida Davenport, Kate Blodgett, G. Fred Lazarus, ancillary administrator of James E. Blodgett, deceased; Miller Blodgett, Alice Davis, Blanche Douglass, Lillie Bowman, Martha Gruver and Lizzie Herring, heirs of Mary Blodgett and Asa Blodgett, deceased, v. The Lehigh and Wilkes-Barre Coal Company.</p> <p>Assumpsit to recover royalties alleged to be due under a coal lease.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Garman, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made the rule absolute as to part of the claim. Defendant appealed.</p> <p>Error assigned was in making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeals, Nos. 93, 141 and 374, Jan. T., 1914, by J. F. Snyder, administrator, Kate Rees, widow, and J. F. Snyder, administrator, respectively, from decree of O. C., Luzerne Co., 1908, No. 386, refusing a rehearing upon exceptions to administrator’s account, and dismissing exceptions to report of audit in Estate of Lewis Anthony Rees, deceased.</p> <p>Petition of J. F. Snyder, administrator, for a rehearing on exceptions to his account. Before Freas, P. J.</p> <p>Exceptions to audit. Before Freas, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the petition and dismissed the exceptions. J. F. Snyder appealed from the decree refusing the petition for a rehearing. Kate Rees, widow of Lewis Anthony Rees, deceased, and J. F. Snyder, administrator, appealed from the decree of the court dismissing the . exceptions.</p> <p>Error assigned in appeal No. 93 was in refusing a rehearing.</p> <p>Errors assigned in appeals Nos. 141 and 374 were in dismissing the exceptions.</p>

<p>Appeal, No. 144, Jan. T., 1913, by defendant, from judgment of C. P. Huntingdon Co., May T., 1911, No. 38, for plaintiffs non obstante veredicto in case of George E. Sweeter, J, N. Stover, Uriah. Hevener, L. B. Waybright, H. H. Hevener, J. K. Kramer, G, D. Dudley, J. H. Lightner, S. A. Gilmore, C. C. Burns and W. H. Hiner v. H. P. Reynolds.</p> <p>Assumpsit on a judgment of a court of a foreign state. Before Johnson, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury found a verdict for the defendant. Upon motion, the court subsequently entered judgment for the plaintiff non obstante veredicto for $2,341. Defendant appealed.</p> <p>Error assigned was in entering judgment for the plaintiff non obstante veredicto,</p>

<p>Appeal, No. 188, Jan. T., 1913, by plaintiff, from judgment of C. P, Clearfield Co., Sept. T., 1911, No. 309, of nonsuit in case of James L. Thompson v. Alfred Graham.</p> <p>Assumpsit for breach of an oral contract. Before Smith, P. J.</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 refusal to take off nonsuit.</p>

<p>Appeal, No. 320, Jan. T., 1913, by defendant, from judgment of C. P. Blair Co., Oct. T., 1908, No. 368, on verdict for plaintiff in case of Harry V. Cornelius v. Edward H. Lytle.</p> <p>Assumpsit to recover damages for breach of a lease of farm premises. Before Baldrigb, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $2,575.96, which was subsequently remitted to $2,075.96, and judgment thereon. Defendant appealed.</p> <p>Error assigned, inter alia, was (3) in affirming plaintiff’s third point for charge which was as follows: “The plaintiff’s right of action having accrued on 6th day of April, 1908, when the breach on the part of the defendant was made, the measure of damages was the loss actually sustained by him in preparing for the execution of his contract; what profits he could have made on the farm, during the entire period of three years, and for loss actually sustained in the sale of his personal property by reason of the breach less what the plaintiff earned on the farms which he had occupied during the period of the lease.”</p>

<p>Trusts — Resulting and express trusts — Payment of purchase-money — Act of April 22,1856, P. L. 582.</p> <p>In proceedings in an Orphans’ Court for partition of two tracts of land of a decedent who died intestate, in which two of the children of decedent named as parties defendant claimed title to twenty-two twenty-ninths of one tract and one-half of the other tract as devisees of their mother, the widow of decedent, an issue was directed to the Common Pleas Court to determine whether the widow was actually the owner of the interests in the land aforesaid at the time of her death. It appeared that the wife had furnished $2,200 out of the total consideration of $2,900 which was paid for the one tract of land, and had furnished one-half of the purchase-money for the other tract, and that title to both was taken in the name of her husband. Held, that a resulting trust arose in favor of the wife for the proportions of the land for which her money had paid, and that the trust was not barred under the Act of April 22, 1856, P. L. 532, because not manifested in writing by her husband, although at her death she left a will devising her interest in the said property, and stating that it was agreed between herself and her husband that she was the owner of that part for which she had paid. The mere fact that the widow stated in her will that her husband had admitted that he held the lands for her use could not operate to make the trust an express one which could be proven only by a writing signed by the husband.</p>

<p>Wills — Construction—Intention—Revocation—Sale of land devised — Ineffectual conveyance — Effect on prior will.</p> <p>1. When a testator conveys away absolutely land that he has previously devised, the devise is thereby revoked on the presumption of law that the testator changed his intention. Even though ineffectual to vest the property, an attempted conveyance produces . a revocation of the devise.</p> <p>2. A testator left two wills, the earlier containing the bequest: “I give and devise to my daughters,” naming them, “an equal share of all the money derived from estate after expenses are paid,” and appointing an executor. In the later will, the following bequest was made: “I give and bequeath to my.daughter, Mary M., all my personal property, excepting a gold watch and chain. Also one gun.” No executor was named by the latter will. Subsequent to the making of the first will and prior to the execution of the second, the testator contracted verbally to sell his farm, the only real estate which he owned, and prior to his death executed and acknowledged a deed to the grantee for the premises and placed it in escrow to be delivered on payment of the purchase-money. The register admitted both instruments to probate as together constituting the will of the testator and issued letters testamentary, in accordance with the appointment contained in the earlier will. Meld, on appeal, that the court did not err in directing the latter instrument to be admitted to probate and in revoking the letters testamentary granted upon the earlier instrument.</p>

<p>Appeal, No. 60, Jan. T., 1914, by defendants, from judgment of C. P. Huntingdon Co., May T., 1912, No. 11, on verdict for plaintiff in case of First Methodist Episcopal Church of Huntingdon, Pa., for use of Josiah C. Hall, v. John L. Isenberg, W, B. Wilson, John McCahan, John W. Snyder, L. A. Green, H. H. Taylor, assignee in trust for benefit of creditors of L. A. Green, H. É. Funk, H. Deck, assignee in trust for benefit of creditors of H. E. Funk, Kulp Planing Mill Company, H. C. Kulp, and H. H. Waite, assignee in trust for benefit of creditors of W. B. Wilson.</p> <p>Assumpsit on a bond. Before Johnson, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,198.91 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No. 80, Jan. T., 1911, by defendant, from judgment of C. P. Huntingdon Co., Sept. T., 1913, No. A, appointing viewers and approving bond in case of Raystown Water Power Company v. Isaac Brumbaugh.</p> <p>Petition for appointment of viewers. Before Woods, P. J.</p> <p>The Raystown Water Power Company constructed a large dam over the Raystown branch of the Juniata river, causing the water to back np, over and upon the land of the defendant, Isaac Brumbaugh, an upper riparian owner. The plaintiff company filed a petition for the approval of a bond to secure the damages and for the appointment of viewers in eminent domain proceedings. The defendant filed an answer averring that the plaintiff company did not possess the right of eminent domain. The court appointed viewers to assess damages and approved the bond. Defendant appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Equity — Equity jurisdiction — Adoption—Methods of adoption-^Agreement to adopt — Adoption- Toy parol — Acts of May J¡, 1855, P. L. ISO, Sec. 7;. May 19,1887, P. L. 125, Sec-. 1, and April 2,1872, P. L. 81, Sec. 2 — Demurrer.</p> <p>1. The adoption of a child cannot be effected by parol. The only methods of adoption of children known to the law of Pennsylvania are those prescribed by the Act of May 4, Í855,' P. L. -430, Section 7, as re-enacted by the Act of May 19, 1887, P. L. 125, Section 1, and the Act of -April 1; 1872; P. L. 31, Section 2. -The former provides for adoption by petition to, and decree of, th.e Court of Common Pleas, and the latter for adoption by deed duly executed and recorded.</p> <p>2. A bill in equity filed by the plaintiff against the sister and next of kin of a decedent and against the administrator of his estate, averred that when the plaintiff was a child, the decedent and his wife made an agreement with plaintiff’s father to adopt plaintiff; that there was no legal, adoption owing to the fact that the father could not be found nor his consent obtained; that they took her into their care and keeping, changed her name, exercised the authority of parents over her and maintained the family relation to her during their lives; and that she performed her part by rendering the duties and services and obedience due from a child to her parents. The bill prayed for a decree giving effect to the agreement, and that plaintiff be declared entitled to such share of the decedent’s estate as she would have been entitled to, had she been legally adopted. Held, that the court did not err in sustaining a demurrer and dismissing the bill.</p> <p>3. In such case, if plaintiff had any claim to the real estate of decedent, her remedy would be by ejectment and the exclusive jurisdiction to determine her claim to share in the estate as a distributee would be in the Orphans’ Court. . ,</p>

<p>Appeal, No. 356, Jan. T., 1913, by plaintiff, from decree of O. P. Cumberland Co., March T., 1911, No. 1, in equity, dismissing bill in equity for an injunction in case of Borough of Mechanicsburg v. Mechanicsburg Gas & Water Company.</p> <p>Bill in equity to restrain collection of increased water rates for fire service. Before Sadler^ P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>.. . Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 360, Jan. T., 1913, by defendant, from judgment of C. P. Erie Co., Sept. T., 1907, No. 12, on verdict for plaintiff in case of City of Erie v. Pennsylvania Railroad Company and Philadelphia & Erie Railroad Company.</p> <p>Ejectment to recover land in the City of Erie. Before Benson, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various instructions of the court.</p>

<p>Wills — Construction—Real estate — Trusts — Life estate — Remainder to “heirs” — Rule in Shelley’s Case.</p> <p>Testator provided by will “I now will and bequeath the three following farms in trust to each of my sons,” naming them; “to my son John, I bequeath the Malister farm......He is to have the proceeds of the farm during his natural life and at his death it will fall or pass to his heirs in trust, if he has issue, if not it will revert to his brothers and sisters.” Subsequently testator provided by codicil, “Recognizing the difficulties in providing for my different bequests to my family out of my estate.......I hereby make this my last codicil. To my son John, I give and bequeath the Malister Farm, in trust, the Town Mill and Ice house and lot, subject to my wife’s dower. I also bequeath to him the warehouse property at Carlisle......I hereby revoke all former bequests made to him. The property......willed to him is all in trust, he shall have the income during his life and at his death it may go to his legal heirs.” The son John took possession of the real estate on the decease of his father and had possession of it for a period of more than twenty-eight years, managed it, collected all the rents, paid the taxes thereon and the insurance, and made the necessary repairs. The executor under the will at no time had or assumed charge of the real estate, or collected any of tbe rents or income arising from it. Upon a case stated to determine the interest of tbe son, John, it was held that the trust created was a dry or passive one and that he took a legal estate under the devise; that the intention of the testator was that his son John should take a life estate in the property, with remainder to his heirs, the latter taking not directly from the devisor, but by inheritance through the son, and that under the rule in Shelley’s Case, the son took a fee simple title to the property.</p>

Appeal, No. 48, Jan. T., 1914, by defendant, from judgment of C. P. Cumberland Co., Feb. T., 1914, No. 59, for plaintiff on case stated in case of Mary E. Asper v. George H. Stewart. Case stated to determine marketability of title.

<p>Appeal, No. 364, Jan. T., 1913, by plaintiff, from judgment of C.. P. Cumberland Co., Sept. T., 1912, No. 374, on directed verdict for defendant in case of Thomas McDonald v. Hildegarde Langsdorf Lee.</p> <p>Trespass for libel. Before Sadler, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The trial judge directed a verdict for the defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was the charge of the court.</p>

<p>Negotiable instruments — Promissory notes — Action against endorser — Acceptance of collateral notes — Payment of interest or discount on collateral notes — Extension of time of payment — Intention of parties — Reservation of recourse against endorser — Negotiable Instruments Act of May 16,1901, P. L. 19k></p> <p>1. Whether the acceptance of a new note is an extinguishment or payment of an old or is as collateral security depends upon the intention of the parties, the presumption being that it is only a further security for the indebtedness, and the burden of proving that the new obligation has been taken in payment is on the party asserting it. If the evidence is conflicting or the facts are in dispute, the question is for the jury.</p> <p>2. The receipt of interest in advance for a period beyond the maturity of a note is prima facie but not conclusive evidence of an agreement extending the time of payment, but evidence that notes deposited as collateral security for the payment of other notes were renewed from time to time, interest thereon collected in advance, and the time of payment extended will not of itself support a finding that the holder of the original note extended the time of payment of the later one.</p> <p>3. The holder of a negotiable instrument may relieve himself from the operation of the rule that a definite extension of time without the consent of the endorsers and for a consideration relieves- the endorser, by expressly reserving the right of recourse against the endorser, for in such case the right of action against the maker is not suspended.</p>

<p>Partnership — Bill for account — Equity—Findings of fact.</p> <p>Plaintiff filed a bill in equity for an accounting against his partner; the defendant filed an account showing a balance belonging to the firm but claiming that plaintiff had already been paid more than his share. After a hearing the court below on competent and abundant evidence found that defendant was discharged of any liability to plaintiff and entered a decree accordingly. Held, that in the absence of anything in the evidence to show that the court was clearly mistaken in its findings the decree should be affirmed.</p>

<p>Appeal, No. 187, Jan. T., 1913, by defendant, from judgment of C. P. Tioga Co., May T., 1912, No. 206, for want of a sufficient affidavit of defense in casé of W. O. Wakely, now for use of W. O. Wakely and The Knoxville Trading Co., a corporation under the laws of Pennsylvania v. The Sun Insurance Office of London, England.</p> <p>Assumpsit on insurance policy. Before Cameron, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 44, Jan. T., 1914, by Nellie Bacbe Graves, from decree of O. O. Tioga Co., May T., 1918, No. 28, ordering sale of real estate and appointing trustee for same in estate of John N.. Bache, deceased.</p> <p>Petition for sale of real estate under Price Act. Before Cameron, P. J.</p> <p>Tbe facts appear by tbe opinion of tbe Supreme Court.</p> <p>Tbe court entered a decree ordering the sale of the real estate in question and appointed a trustee to conduct tbe sale. Nellie Bacbe Graves appealed.</p> <p>Error assigned, among others, was tbe decree of tbe court.</p>

<p>Boroughs — Increase of indebtedness — Special election — Returns —Count by court — Printing of ballots — Thickness of paper — Printing showing through ballot — Act of June 10/1898, P. L. k19— Statutes — Construction.</p> <p>1. The law does not require returns of a special election for the purpose of increasing the indebtedness of a borough to be counted by the Court of Common Pleas.</p> <p>2. If a statute declares a specified irregularity to be fatal to the legality of an election the court will follow that command, irrespective of their views of the importance of the requirement, but in the absence of such declaration the judiciary endeavor -to discern whether the deviation from the prescribed forms of law had or had not so vital an influence on the proceedings as probably prevented a full and free expression of the popular will. If it had, the irregularity is held to vitiate the entire election, otherwise it is considered immaterial.</p> <p>3. Under the Act of June 10,1893, P. L. 419; anyone possessing the right to participate or having an interest in the result of an election about to be held, is entitled to maké a proper examination, in the presence of the county commissioners, of the sample or official ballots.</p> <p>4. When a ballot is not lacking in any matter essential to a free expression in statutory form of the will of the voter, in the absence of fraud, the remedy for any defect in the ballot is under the Act of June 10, 1893, P. L. 419, which provides, after requiring that all ballots used shall be printed on white paper of sufficient thickness to prevent the printed matter from showing through, that “When it is shown by affidavits that mistakes or omissions have occurred in the publication of names or description of candidates, or in the printing of the ballots, the Court of Common Pleas......may upon application of any qualified elector ......require the county commissioners to correct the mistake.”</p> <p>.5. In a proceeding in equity to set aside a special election authorizing an increase in the indebtedness of a borough, the court did not err in dismissing the bill, where it appeared that a majority of the electors voted in favor of the increase of indebtedness; that the ballots used at such election were not of sufficient thickness to prevent the printed matter from showing through; • that there was no question of fraud, the selection of the. paper for the ballots being a mistake of judgment on the part of the county commissioners; tbat no complaint was made before or at the election.by any elector, although the sample’and official ballots could haye been seen by any elector in the commissioners’ office; and that no elector was in any manner embarrassed or influenced in the exercise of his franchise by the ballot not having the opaqueness required by the act of assembly.</p>

<p>Appeal, No. 40, Jan. T., 1914, by Furman Engler, Guardian ad litem of Melvin F. Engler, a minor, from decree of O. 0., Northampton Co., dismissing petition for issue devisavit vel non in estate of Jacob S. Cressman, deceased.</p> <p>Petition for issue devisavit vel non. Before Stewart, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the petition. Furman Engler, guardian ad litem of Melvin F. Engler, minor grandchild of decedent, appealed.</p> <p>Error assigned, among others, was in dismissing the petition for an issue.</p>

<p>Evidence — Partnership—Holding out as partner — Evidence improperly admitted — Instructions to disregard — Inadequacy of instructions.</p> <p>1. Where evidence has been improperly admitted which tends to prejudice the minds of the jurors and is not struck out at or before the close of the testimony, the error is not cured by instructions to disregard it in the charge.</p> <p>2. In an action to charge deferidant as a partner a very large part of the evidence introduced during a trial of four days, consisted of the declarations of an alleged agent, whose agency was never shown, and of the declarations of the alleged partner. Realizing that this evidence was improperly admitted, the court instructed the jury to disregard it, but such instructions were given only in the charge after the argument of counsel, were scattered through a lengthy charge and were not clear and specific. Held, the error was not cured and the judgment was reversed.</p>

<p>Taxation — Corporate loans — Act of June SO, 1885, P. L. 19S~ Extra-territoriality — Nonresident treasurers.</p> <p>1. The fourth section of the Act of June 30, 1885, P. L. 193, imposing upon the treasurers of private corporations doing business in Pennsylvania the duty of assessing the tax therein imposed upon the nominal value of the corporate loans of such corporations and providing that “it shall be his further duty to deduct” the tax in paying the interest and return the same to the state treasurer, has no extra-territorial effect upon corporate officers residing out of the State to constrain them to assess the tax any more than it can compel them to collect it, and since treasurers are specifically named in the act to perform these duties, they can not be transferred to a corporation of this State designated as the agent for the payment of the interest on bonds.</p> <p>2. A corporation incorporated under the laws of West Virginia and engaged in business in Pennsylvania, issued unsecured debenture bonds the interest thereon being payable at the office of a trust company in Pennsylvania. The principal office of the corporation was located in New York, where the treasurer of the company continuously had maintained his office and treasurer’s bank account. It was the treasurer’s practice, a week or ten days prior to any interest period, to remit to the trust company sufficient money to pay the maturing coupons which were paid by such trust company and returned to the treasurer in New York for cancellation. The Commonwealth sought to recover the tax imposed upon corporate loans by the Act of June 30, 1885, P. L. 193, and contended that it was the duty of the trust company to assess and deduct such tax. The lower court decided that as every act of the defendant in connection with the payment of the coupons was performed by the treasurer in the state of New York, the Act of 1885 did not operate upon defendant to require the assessment and deduction of the tax by defendant’s officers or agents, and entered judgment for the defendant. Meld, that under the construction placed upon the Act of 1885 by the Supreme Court of the United States, the act had no extra-territorial effect; that the treasurer was the person charged with the duty of making the assessment and since being a nonresident, he could not be compelled to perform this prerequisite to the collection of the tax, the trust company could not be ordered to deduct a tax which had never been assessed, and the judgment was affirmed. New York, Lake Erie and Western Railroad Company v. Pennsylvania, 153 U. S. 628; Delaware and Hudson Canal Company v. Pennsylvania, 156 U. S. 200; Commonwealth v. Lehigh Valley Railroad Company, 186 Pa. 235, followed.</p>

<p>Appeals, Nos. 51, 56 and 71, Oct. T., 1914, by C. C. Murray, receiver of The First: Second National Bank of Pittsburgh, by the Diamond National Bank of Pittsburgh, and by Alice B. Donnelly, Bessie C. Donnelly and Frank F. Nicola, executors, respectively, from decree of O. C., Allegheny Co., June T., 1913, No. 129, dismissing exceptions to decree of distribution in estate of Charles Donnelly, deceased. Appeals, Nos. 52 and 70, Oct. T., 1914, by C. C. Murray, receiver of the First-Second National Bank of Pittsburgh and by Alice R. Donnelly, Bessie C. Donnelly and Frank F. Nicola, executors, respectively, from decree of O. C., Allegheny Co., Feb. T., 1908, No. 112, dismissing exceptions to adjudication in estate of Charles Donnelly, deceased. Appeal, No. 96, Oct. T., 1914, by C. C. Murray, receiver of the First-Second National Bank of Pittsburgh, from decree of O. C., Allegheny Co., June T., 1913, No. 129, refusing attachment and postponing distribution in estate of Charles Donnelly, deceased.</p> <p>From the record it appeared that Charles Donnelly died December 5, 1906, in the City of Pittsburgh, of which he was a resident, possessed of a large amount of real and personal estate. He named as executors of his will, his wife, Alice R. Donnelly, his daughter, Bessie C. Donnelly, and Frank F. Nicola, to whom letters testamentary were granted by the register of wills of Allegheny County. About one year later, the executors resigned, and filed their first and final account, and letters of administration d. b. n. c. t. a. were granted to the Commonwealth Trust Company of Pittsburgh. While the testator owned real estate valued at $2,500,-000, it was subject to mortgages aggregating $1,400,000 and his personalty which was appraised at $748,673.30, consisting mainly of securities which were pledged as collateral for notes on which he was either maker or endorser. At the time of his death his estate was believed to be worth at least $1,000,000 in excess of his indebtedness; but owing apparently to forced sales during a succeeding period of depression in real estate values, his estate has proved to be insolvent. The testator held policies of insurance on his life, written in favor of his wife and children, amounting to $139,244.88, and the proceeds of these policies were collected by the beneficiaries, and the amount thereof was turned over to the executors, as stated, for the maintenance of the family, and the convenience of the estate, to be paid back as soon as the estate should be in position to do so. The sum of $30,375.53 was repaid by the executors, and $7,570 was used in paying certain debts of testator. The executors charged themselves with the sum of $139,-244.38 as “cash deposited with executors by heirs for family expenses and for temporary use by executors, as per Schedule D.” This schedule shows in detail the proportionate parts of the fund deposited by each of the children, and by the widow. This account which was filed in January, 1908, showed a balance of $65,527.17 due the accountants. Exceptions to the account were filed on February 11, 1908. These exceptions were not disposed of until.. August 23, 1913, when Over, P. J., filed an opinion in which he sustained certain of the exceptions and dismissed others. Exceptions having been filed to this opinion the same judge on December 16, 1913, filed another opinion in which he altered his findings in some particulars. In the decree made in pursuance of the latter opinion, the executors were surcharged with excessive commissions claimed, $36,992.19, and with various payments held to be improper, amounting to $45,723, a total surcharge of $82,715.19. From this was deducted a balance of the insurance money not distributed to the widow and children of $27,988.16, leaving a net surcharge of $54,727.03, thus reducing the balance due accountants to $10,800.14. To this decree, both the executors, and C. C. Murray, receiver of the First-Second National Bank of Pittsburgh, a creditor, filed exceptions, which were dismissed by the court. Both exceptants have appealed, the appeal of Murray, receiver, being at No. 52, October Term, 1914, and that of the executors being at No. 70, October Term, 1914. In the year 1909 the Commonwealth Trust Company, administrator d. b. n. c. t. a. filed a first and partial account, showing a cash balance in its hands on February 28, 1909, of $86,467.58. Upon the audit of this account before Miller, J., the widow and children claimed to be allowed as a preferred claim the balance of $101,-299.11 of the insurance money deposited by them with the executors as above stated. The auditing judge found that $40,000 of this sum, which was traced into stock of the Schenley Farms Land Company, should be thus allowed. Exceptions to the adjudication, by the accountant, were withdrawn without prejudice to the right to raise the same questions on the next audit in the estate. In 1913 the administrator d. b. n. c. t. a. filed a second and partial account, showing a cash balance on hand for distribution on April 30, 1913, of $112,396.02. This account was audited by Miller, J., who re-awarded to the widow and children as preferred claimants, the sum of $40,000, as well as additional amounts of $27,198.88, and $313.88 and $475, in all $67,-987.76. Exceptions to the adjudication were filed apparently by the creditors. In an opinion by Miller, J., these exceptions were sustained in part and dismissed in part; Trimble, J., filing a dissenting opinion as to the allowance of any preference to the claim of the widow and children. A decree of distribution in accordance with the opinion of the court, was entered on December 12, 1913, in which to the balance in the hands of the accountants was added the amount paid creditors, increasing the amount for distribution to $126,485.77, and the Donnelly heirs were allowed the sum of $25,861.79 as a preferred claim, and were also allowed a pro rata dividend on $34,007.06. Exceptions were filed to the decree of distribution, apparently by the First National Bank of Pittsburgh, C. C. Murray, receiver of the First-Second National Bank of Pittsburgh, and by the Diamond National Bank of Pittsburgh. These exceptions were dismissed and C. C. Murray, receiver of the First-Second National Bank of Pittsburgh, has appealed.at No. 51, October Term, 1914, and the Diamond National Bank has appealed at No. 56, October Term, 1914.</p> <p>Alice R. Donnelly, Bessie C. Donnelly and Frank F. Nicola, executors of Charles Donnelly, deceased, also filed exceptions to the final decree of distribution. These exceptions were dismissed, and the exceptants have appealed at No. 71, October Term, 1914.</p> <p>The final decree dismissing the exceptions to the decree of distribution was filed January 5, 1914, but the certiorari from the Supreme Court, issued on the appeal of Alice R. Donnelly, et al., executors (No. 71), was not brought into the office of the clerk of the Orphans’ Court until February 9, 1914, more than three weeks after the entry of the decree appealed from. On February 11, 1914, C. C. Murray, receiver, filed a petition averring two awards to him of $18,271.77 and $37,290.66 respectively, and setting forth that more than three weeks had elapsed since the final decree, without any appeals being taken therefrom, except by the petitioner and by the Diamond National Bank, but that the administrator refused on demand to comply with the decree of distribution. ' He prayed for a rule to show cause why an attachment should not issue, and the Orphans’ Court granted such a rule. The administrator filed an answer in which he set up the three appeals from the decree, two of them taken within three weeks after it was made, and one, that of the executors, after the expiration of three weeks. The court on consideration of the petition and answer, on March 13,1914, ordered, that the accountant postpone payment of any part of the decree until the pending appeals were disposed of. The petitioner, C. C. Murray, receiver of the First-Second National Bank of Pittsburgh, appealed from this decree at No. 96, October Term, 1914.</p> <p>Errors assigned were the various decrees above mentioned.</p>

<p>Appeal, No. 225, Jan. T., 1913, by plaintiff, from decree of C. P. No. 4, Philadelphia Co., March T., 1913, No. 4544, in equity, sustaining demurrer and dismissing bill in equity in case of Charles S. Maynard v. Annie F. Shaw, executrix of Lorenzo D. Shaw, deceased, and Alice M. Bradley.</p> <p>Bill in equity to recover chattels attached to real estate.</p> <p>The facts appear in the following opinion of Atfdenried, J.,- sur defendant’s demurrer to the bill.</p> <p>Stated briefly the substance of the plaintiff’s bill is as follows:</p> <p>The plaintiff is the holder of a . note given to him by Shaw in the year 1909 for $5,000. This note fell due December 2, 1910, and is still unpaid. To secure its payment Shaw gave him on December 22, 1909, a mortgage of certain chattels. These consisted of a Ferris wheel, the machinery used in its operation and the buildings in which the latter is erected. The mortgaged chattels were when the mortgage was made situated on land then owned by one McGill. There they still remain. Shaw occupied that land under a lease. The plaintiff’s mortgage did not cover Shaw’s leasehold interest in the real estate on which the chattels that it embraced were located. The mortgage was recorded; but Shaw retained possession of the mortgaged property. Besides his lease thereof, Shaw held an option to purchase McGill’s land, and, under this option, secured a conveyance of it to his wife on July 11,1912. It was paid for with his money and in reality became his. Title to it was taken in his wife’s name in order to protect it from his creditors. It does not appear that Mrs. Shaw took possession of the property or that Shaw ceased to occupy it before his death. He died August 3,1912. His will was proved in the District of Columbia, and there letters testamentary were granted to Ms widow. No one has been appointed in Pennsylvania to administer his property here. At the time when the land above referred to was conveyed to Mrs. Shaw she and her husband joined in giving a mortgage to Mrs. Bradley to secure thereon the payment of the sum of $1,500. Both Mrs. Shaw and Mrs. Bradley had actual notice of the mortgage given by Shaw to the plaintiff, but, since Shaw’s death, his widow has claimed to be the owner of the above mentioned Ferris wheel and its appurtenances,' on the ground that they passed to her under McGill’s deed as part of the real estate thereby conveyed, and, on the same ground, Mrs. Bradley claims that they are subject to the lien of her mortgage. Shaw died in debt; and the claims of his creditors have not yet been satisfied.</p> <p>The plaintiff’s prayers for relief are as follows:</p> <p>1. That he be decreed to be the exclusive owner of the Ferris wheel above mentioned, with its appurtenances.</p> <p>2. That Mrs. Shaw be required to deliver up possession thereof to him.</p> <p>3. That the defendants be restrained from selling, removing or injuring the same.</p> <p>4. That Mrs. Shaw make discovery as to who is the real owner of the land conveyed to her by McGill.</p> <p>5. That Mrs. Shaw be enjoined from selling or mortgaging that land and the wheel, etc., now located on it.</p> <p>6. That Mrs. Bradley be restrained from assigning her mortgage in such wise as to pass any right against said wheel, etc.</p> <p>7. That the defendants be restrained from preventing the plaintiff from taking possession of the wheel, etc., aforesaid.</p> <p>8. That Mrs. Shaw be ordered to account for all profits received from the operation of said wheel.</p> <p>9. That a receiver be appointed to hold and operate the wheel pendente lite.</p> <p>10. Further relief.</p> <p>It is obvious that the principal purpose that the plaintiff had in view when he filed his bill was to obtain possession of the property covered by what has been referred to above as his mortgage but which he styles his bill of sale. His prayers for discovery and for the appointment of a receiver for the property that he claims are merely ancillary to his práyer for the delivery of that property to him. They stand or fall together.</p> <p>His demand for an accounting by Mrs. Shaw is based on the proposition that he became the owner of the Ferris wheel and its appurtenances under the instrument referred to in the second paragraph of his bill. It is his theory that this so-called bill of sale vested in him the title, to the wheel as against Shaw; that since Mrs. Shaw had notice of the bill of sale and moreover gave no consideration for the wheel his title to it is good as against her; and that she, therefore, holds it for him as trustee and is bound to account to him for her dealings with it. In our opinion, however, the plaintiff became merely a mortgagee of the wheel. By the bill of sale that Shaw signed this was, it is true, conveyed to him; but by the endorsement on that paper, it is plainly set forth that the purpose of the conveyance was merely to serve as security for the payment of Shaw’s note to the plaintiff, and that, if the note was paid by Shaw, the bill of sale was to be null and void. Nothing could more perfectly answer the definition of a mortgage. The plaintiff’s only right against Shaw, was to be paid the amount of his note, with interest. Neither from Shaw, nor from anyone claiming under him, had he the right to an accounting for the profits made in operating the mortgaged property. A mortgagor (and hence one who has succeeded to his interest), suffered to remain in possession, is not accountable to the mortgagee for rents and profits, even for a period after condition broken: Talbot’s App., 2 Walk. 67.</p> <p>Under the view that we hold as to the standing of the plaintiff in this matter, it is unnecessary to discuss the question whether the claim that he advances is not one for the assertion of which he would have adequate means at law without resorting to equity.</p> <p>As indicated above, the writing under which the plaintiff claims title to the Ferris wheel, etc., described in his bill was but a mortgage. The property covered by it never came into his possession, but was retained by Shaw until his death. While a chattel mortgage is valid between the parties thereto, as to the creditors of the mortgagor or as to any purchasing from him for value and without notice it is worthless if the mortgagor continues to hold possession of the chattels mortgaged; Welsh v. Bekey, 1 Penrose and Watts 57; Coble v. None-maker, 78 Pa. 501. The fact that the mortgage in this case happened to be recorded does not except it from the general rule; such an instrument not being within the recording acts. It is urged that Mrs. Shaw and Mrs. Bradley both had actual notice of its existence, and that the former is a mere volunteer who gave nothing for the property. It may be conceded, we think, that if this were true and if those parties alone were to be reckoned with the plaintiff might maintain his claim to the Ferris wheel and its appurtenances successfully; but the bill asserts that Shaw died in debt and that certain of his creditors claimed that the title to the property just mentioned is vested in his estate and subject to their claims. By the death of Shaw his personal estate in possession passed into the custody of the law for administration. The mortgage that he gave to the plaintiff became, on his death, void as to his creditors, because the plaintiff suffered him to retain possession of the chattels that it embraced. The law took hold of what it found in his possession for the benefit of all his creditors. The plaintiff must await the due course of administration. He has no right to undertake to administer any part of the estate of the deceased for the satisfaction of his own debt. Even if the assets of the estate outside of the chattels covered by his mortgage would suffice to pay the other creditors, it makes no difference. That question is to be determined only by the Orphans’ Court: Hater v. Steinruck, 40 Pa. 501.</p> <p>On the facts set forth in the bill the right to the possession of the Perris wheel and other personal property therein mentioned is not vested in the plaintiff. It is true that as one of Shaw’s creditors he is interested in seeing these assets properly administered; but that gives him no right to maintain such a bill as that before us. If Mrs. Shaw had taken out letters testamentary in this State and had failed to account for the property that has been referred to, the plaintiff’s remedy would normally lie in asking the Orphans’ Court to remove her from her office and appoint some other person to assert against her the rights of the estate; but she is a foreign executrix and the Orphans’ Court has no control over her. As a foreign executrix, moreover, she has no right to meddle with the assets of the estate that are in this jurisdiction. The proper course to be pursued in this matter by the plaintiff and the other creditors of Shaw is to procure the issue of letters of administration cum testaments annexed on Shaw’s estate. The administrator so appointed may then resort to whatever proceedings may be appropriate and necessary to get into his hands such assets as Shaw’s creditors may be entitled to have applied to the payment of their claims.</p> <p>The defendant demurred to the bill. The court sustained the demurrer and dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 257, Jan. T., 1913, by plaintiffs, from judgment of C. P., Fayette Co., Sept. T., 1911, No. 397, refusing to take off nonsuit in case of John Green in Ms own right and Charley Green, a minor child of John Green, by his father and next friend, y. West Penn Railways Company. Trespass to recover damages for personal injuries. Before Van Swearingen, J. The opinion of the Supreme Court states the facts.

Appeal, No. 270, Jan. T., 1913, by plaintiff, from order of C. P., Fayette Co., March T., 1912, No. 418, opening judgment in case of William S. Stewart, surviving executor of John S. Stewart, deceased, v. Betty P. Stewart, alias Elizabeth P. Stewart, David Stewart and Samuel S. Stewart. Rule to open a judgment entered by confession on a judgment note. Before Umbel, P. J. From the record, it appeared that John S. Stewart, Samuel S. Stewart and Robert E. Stewart were brothers.

<p>Real property — Rule against perpetuities — Options—Construction — Intention—Void option — Cloud on title — Equity.</p> <p>1. The rule against perpetuities is aimed at the suspension of alienation by compelling such a limitation of future interests as will require them to vest, if at all, within a certain time. The rule promotes alienability by destroying future interests and is the most important restraint which the law places upon the right to create future interests.</p> <p>2. Tbe rule against perpetuities is not a rule of construction but a peremptory command of law. Its object is to defeat intention,, and a contract providing for the creation of a future interest in property is first to be construed as if the rule did not exist and then to the provision so construed, the rule applies.</p> <p>3. An option is a unilateral agreement binding upon the optionor from the date of its execution, but it does not become a contract inter partes in the sense of an absolute contract to convey on the one side and to purchase on the other until exercised by the optionee ; it is not a sale but a right of election in the party taking the option to exercise the privilege of purchase and only when that privilege has been exercised by acceptance in the manner specified in the instrument creating the option does it become an absolute contract binding upon both parties.</p> <p>4. Where the event upon which an estate is to arise, such as the acceptance of an option to purchase, is so uncertain that it may transpire at some indefinite time in the future, or may never transpire at all, the interest created by the option is not vested but contingent and within the rule against perpetuities.</p> <p>5. A bill in equity to remove a cloud upon title alleged that plaintiffs were the owners of certain land; that their predecessors in title had granted the coal underlying such land, by a deed containing a covenant that in case the grantee, his heirs or assigns “should at any future time whatsoever desire to purchase any of said land in fee simple, then the Said parties of the first paTt for themselves, their heirs or assigns hereby covenant and agree to sell the same to the said parties of the second part, their heirs or assigns at a price not exceeding $100 per acre”; that defendants were the successors in title of the grantees of such deed; that the said covenant was void but was a cloud on the plaintiffs’ title, and prayed that such covenant be cancelled. The court after hearing on bill and answer decided that the covenant was but an option to purchase, which under its terms, could be exercised at any time in the future, and was void, as being in violation of the rule against perpetuities and awarded the relief prayed for. Held, no error.</p>

<p>Appeal, No. 69, Jan. T., 1914, by plaintiff, from judgment of C. P. Northumberland Co., May T., 1913, No. 482, on directed verdict for defendant in case of Lewis L. Follmer v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Moser, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was in directing a verdict for defendant.</p>

<p>Appeal, No. 108, Jan. T., 1914, by defendant, from judgment of C. P. Juniata Co., Dec. T., 1910, No. 28, on verdict for plaintiff in case of Charles D. Smith v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Seibert, P. J.</p> <p>The opinion of the Supreme Court States the case.</p> <p>The court charged in part as follows:</p> <p>If he has been injured through the negligence of this company in the manner and at the time he states he was; in that event he should receive such compensation as would amply compensate him for what he has suffered and will suffer and for loss of earning power; that amount and that verdict, if rendered in his favor, will come from the result of your cool, calm, and deliberate judgment. (2)</p> <p>The plaintiff submitted the following point:</p> <p>Fourth. If the jury find for the plaintiff, in estimating the damages they should allow compensation for the pain and suffering, bodily and mentally, which the plaintiff had endured resulting from the injury, and bodily and mental pain and suffering likely to be experienced in the future, and the inconvenience and privation the plaintiff was subjected to and that are likely yet to result directly and naturally from the injury, and for the loss of earning power during the period of the remainder of plaintiff’s life in which his earning capacity may be affected.</p> <p>Answer. Affirmed: but in connection with this affirmance the attention of the jury is called to the evidence of the plaintiff himself as to his earning capacity before and after the alleged injury complained of, as well as the nature and character of the occupations he followed before and after. (5)</p> <p>The jury found a verdict for $2,840, which the court subsequently reduced to $1,800, upon which judgment was entered. Defendant appealed.</p> <p>Errors assigned, among others, were (1) instruction to the jury as set forth in the opinion of the Supreme Court, and (2-5) other instructions to the jury as above.</p>

<p>Landlord and tenant — Defective construction of "buildings— Duty of landlord to repair — Implied warranty that buildings a/re tenantable — Injuries to stored merchandise — Nonsuit.</p> <p>1. Out of the relation of landlord and tenant no implied covenant upon the part of the landlord to repair arises, nor is there any implied warranty that the leased premises are tenantable, and if damages result to the tenant by reason of failure to make repairs, there can be no recovery against the landlord in the absence of a covenant requiring the lessor to repair.</p> <p>2. There is no liability on the part of the landlord to his tenant by reason of the defective, imperfect or faulty construction of a demised building in the absence of a warranty that the building is in proper condition. The tenant takes the property as it is, and the rule of caveat emptor applies.</p> <p>3. In an action of trespass to recover damages from plaintifE’s landlord for injuries to plaintifE’s stock of merchandise caused by the leaking of water into the demised premises by reason of the alleged defective, imperfect and improper construction thereof at the time when the lease was executed, where it appeared from the plaintifE’s case that the negligence, if any, was in the faulty construction of the building, and where there was no covenant in the lease requiring the landlord to repair or warranty that the buildings were in tenantable condition, the .court made no error in refusing to take off a nonsuit entered by the trial judge.</p>

<p>Appeal, No. 126, Jan. T., 1914, by defendants, from judgment of C. P. Mifflin Co., Jan. T., 1913, No. 34, on verdict for plaintiffs in case of D. S. McNitt and A. R. McNitt, executors, et al., plaintiffs and appellees, v. Samuel G. Gilliland, et al., defendants and appellants.</p> <p>Feigned issue to determine the validity of a will. Before Woods, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiffs, the proponents of the will and judgment thereon. Defendants appealed.</p> <p>Errors assigned were instructions to the jury, rulings on evidence, and the refusal of the court to direct a verdict for defendants.</p>

<p>Appeal, No. 139, Jan. T., 1914, by defendant, from judgment of C. P., No. 4, Philadelphia Co., June T., 1912, No. 2919, on verdict for plaintiff in case of Sadie W. Harner v. F. H. White Company, Inc.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, J.</p> <p>From the record it appeared that the plaintiff, a woman thirty years of age, was employed by the defendant, a manufacturer of dress suit cases, for the purpose of stitching pieces of leather on the corners of the.suit cases, which were made of cane. The stitching was done by means of a sewing machine, located on a table at which the plaintiff sat, and was operated by power transmitted by a belt from a shaft and a pulley underneath the table.</p> <p>On the third day of plaintiff’s employment, while she was sitting in front of her machine, one of the straps fell to the floor. She stooped under the table to pick it up, and while in the act of doing so her hair came in contact with the revolving shaft underneath the table, causing the injury on account of which she claimed damages in this suit.</p> <p>The table at which she worked was thirty-five inches wide and about one hundred feet long, extending lengthwise on the fourth floor of the building, parallel with and about fifteen feet from one wall of tbe building in which were a number of windows. The sewing was done without artificial light. The table was supported by wooden legs or uprights about seven or eight feet apart, and the shafting one and one-half inches in diameter was located underneath the table twenty-two inches from the front thereof and twelve inches above the floor. It had no cover about it and was exposed to view for its entire length.</p> <p>The charge, of negligence was that defendant had failed to comply with the Act of May 2, 1905, in not placing a guard around the revolving shaft underneath the table.</p> <p>The trial judge submitted to the jury two questions, as to the guarding of the shaft and as to the contributory negligence of the plaintiff.</p> <p>Verdict for plaintiff for $5,000 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>Appeal, No. 14, Jan. T., 1912, by defendant, from judgment of C. P., Lancaster Co., Aug. T., 1909, No. 15, on verdict for plaintiff in case of John N. Mumma v. Samuel N. Mumma.</p> <p>Assumpsit for money loaned. Before Landis, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in permitting plaintiff to amend his statement of claim and the judgment of the court.</p>

<p>Evidence — Witnesses—Homicide — Insanity — Direct examination — Gross-examination—Jurors—Examination on voir dire.</p> <p>1. At the trial of an indictment for murder, a question asked defendant’s witness under direct examination: “Did you or did you not at any time observe a change of conduct on tbe part of tbis defendant in regards to bis mentality,” was leading, and an objection thereto was properly sustained.</p> <p>2. In such case, tbe court made no error in refusing to permit defendant’s expert witness to express bis opinion as to tbe defendant's insanity based on tbe evidence which he had heard in court, where such witness had previously stated his opinion as based upon his examination of the defendant, or in refusing to permit an expert witness testifying for defendant to state whether defendant was mentally responsible when he was suffering from an insane delusion, or to allow a lay-witness who had known defendant for eight or nine years and who described certain conduct of defendant, to state whether he considered that a rational or an irrational act.</p> <p>3. In such case, where defendant’s witness, having testified as to defendant’s reputation as a law-abiding citizen, was asked on cross-examination: “Do you know whether he (defendant) killed a man or not,” and replied, “I don’t know,” it was not error to refuse to strike out the question and answer.</p> <p>4. In such case, the court made no error in refusing to permit a juror examined on his voir dire to be questioned as to whether he had any conscientious scruples against insanity as a defense in a murder trial.</p> <p>Criminal law — Murder—Insanity—Charge to jury — Correct instructions.</p> <p>5. At the trial on an indictment for murder, it appeared that defendant met deceased in a street; that defendant who had a shoe box under his arm, walked up to deceased, pulled a pistol from the box, shot deceased twice and then turned and started to run, when he fired a third shot. The shots killed deceased. The Commonwealth did not prove a motive for the killing. The defense was that defendant was insane when he fired the shots, and evidence was offered that he was the subject of insane delusions that people were trying to poison him and that his wife had been unfaithful to him. The trial, judge charged the jury to the efEect that if by reason of insanity the defendant did not know the difference between right and wrong, that his mind was so diseased in relation to these delusions that there was an irresistible, overwhelming force driving him on and impelling him to commit the crime, he was entitled to an acquittal, but that if they, should not so find, then they should take into consideration the circumstances of the shooting with a view to determining whether defendant was guilty and the degree of guilt, if any. The jury found a verdict of guilty of murder of the second degree, upon which sentence was passed. Held, no error.</p>

<p>Negligence — Proximate cause — Street railway companies — Shifting cars — Breaking of coupling — Fellow servant — Nonsuit—Witnesses — Experts—G ompetency.</p> <p>1. In an action by a brakeman against his employer, a street railway company, to recover damages for personal injuries sustained by a fall between two freight cars belonging to the defendant company which were being shifted by defendant’s motor, it appeared that the cause of the accident was a violent jar of the cars, due to the sudden application of power by defendant’s motorman, which in turn caused the parting of the coupling between the two cars. There was no evidence that the coupling was out of repair or was defective or was any different from those in ordinary use. Held, the proximate cause of the accident was the act of plaintiff’s fellow servant in the management of the motor, and that a nonsuit was properly entered.</p> <p>2. In such case the court was not in error in refusing an offer to prove the inadequacy of the car equipment by an expert witness, who had testified that he had never seen the coupler in question, did not understand it, did not know the extent of its use, and that he would not be able to pass upon the adequacy of a car for the purpose for which it was used without seeing it.</p> <p>Appeal, No. 315, Jan. T., 1913, by plaintiff, from judgment of C. P. Lancaster Co., April T., 1906, No. 37, refusing to take off nonsuit in case of Harvey B. Cover v. Conestoga Traction Company.</p> <p>Trespass for personal injuries. Before Landis, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, entered a nonsuit, which it subsequently refused to take off.</p> <p>Error assigned, among others, was in refusing to take off nonsuit.</p>

<p>Railroads — City street — Private siding — Right to construct siding — Right of adjacent property owner — Consent of city — Bill in equity — Injunction.</p> <p>1. The legislature may authorize a railroad company to lay its track on a public street in a city.</p> <p>2. While ordinarily the right of a railroad company to construct tracks on the streets of a city carries with it by necessary implication the right to build and connect sidings, a railroad company, whose tracks occupy a city street, has no right to construct a siding asked for by an adjoining owner without the consent of the city, where the right given the company by the legislature to use, pass over and occupy such street in the construction of its road contemplated the continued use of the street as a public thoroughfare, and it appears that it could continue to be so used, if sidings from the railroad tracks were not constructed.</p> <p>3. A bill in equity by an owner of a coal yard fronting on a street occupied by the tracks of the defendant railroad company, alleged that plaintiff had demanded from the defendant company a siding, with switching connections, from the line of the railroad to his coal yard, to be constructed at his expense, and that the company had refused to construct the siding. The defendant company filed an answer denying the right of the plaintiff to connect with the railroad without the consent of the city and averring that the city had not only refused consent, but had notified defendants that it would enjoin them from constructing the siding if attempted. The city intervened as a party defendant and in its answer denied the' right of the complainant to make the siding connection without its consent. The case was heard on bill and answer under an agreement that the sole question to be considered and determined was “the question of law as to whether or not the plaintiff is entitled to a mandatory injunction against the defendants to lay the proposed siding on South Water street, in the City of Lancaster without the consent of the municipal authorities of said city, and after notice to the railroad companies, defendants, that the City of Lancaster has refused to grant such permission to the complainant in this bill.” Under its charter, the railroad company had express authority to lay its track on Water street, the right so given contemplating the use of the street as a public thoroughfare; and the court below, under the undisputed facts, reached the following conclusion, which was not assigned as error: “If the plaintiff has the right which he claims in his bill, every other resident along Water street is certainly vested with a like right and which if pursued to its extremity would render Water street almost useless as a public thoroughfare.” Held, the court did not err in dismissing the bill.</p> <p>4. In such case, the fact that there are already sidings connected with the railroad on such street does not justify the complaint of unlawful discrimination, in view of the fact that the city refused to give its consent to the construction of such siding.</p> <p>Beaver Borough v. Beaver Valley E. E. Co., 217 Pa. 280, distinguished.</p>

Appeal, No. 308, Jan. T., 1913, by defendant, from judgment of C. P. Lancaster Co., March T., 1912, No. 32, on verdict for plaintiff in case of William S. Yeager v. The Edison Electric Company. Trespass for personal injuries. Before Hassler, J. The facts appear by the opinion of the Supreme Court and in Yeager v. The Edison Electric Company, 242 Pa. 101. Yerdict for plaintiff for $3,000, and judgment thereon. Defendant appealed.

<p>Appeal, No. 266, Jan. T., 1913, by plaintiff, from judgment of C. P. Lancaster Co., Jan. T., 1912, No. 52, entering judgment n. o. v. in case of E. E. Weaver v. Consumers’ Box Board & Paper Company.</p> <p>Assumpsit on a contract. Before Hassler, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,000.</p> <p>The court subsequently entered judgment n. o. v. for the defendant. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for the defendant n. o. v,</p>

Appeal, No. 165, Jan. T., 1914, from judgment of C. P., Lancaster Co., April T., 1914, No. 69, on case stated in case of Rebecca D. Rengier v. Christian Kunzler. Case stated to determine title to land. Before Landis, P. J. Tbe opinion of tbe Supreme Court states tbe facts. Judgment for plaintiff. Defendant appealed. Error assigned was tbe judgment of tbe court.

<p>Appeal, No. 302 Jan. T., 1914, by defendant, from judgment of C. P., York Co., Aug. T., 1912, No. 889, on verdict for plaintiff in case of Lillian A. Senft v. The Western Maryland Railway Company.</p> <p>Trespass for personal injuries. Before Ross, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,049.46 and judgment thereon.</p> <p>The court refused defendant’s motion for judgment n. o. v. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

Appeal, No. 341, Jan. T., 1914, by Paul H. Forry and John E. Rhodes, administrators of the estate of Jesse Forry, deceased, and Annie E. Rhodes and Jessie Sell, from decree of O. C., York Co., making absolute rule to pay award in estate of Jesse Forry, deceased. Appeal from order to pay an award.

<p>Appeal, No. 368, Jan. T., 1914, by plaintiff, from judgment of C. P. York Co., Aug. T., 1912, No. 53, on directed verdict for defendant, in case of Annie M. Leader v. Northern Central Railway Company.</p> <p>Trespass for personal injuries. Before Wanner, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>On the trial the court directed a verdict for defendant. Plaintiff appealed.</p> <p>Error assigned was in directing a verdict for defendant.</p>

<p>Contracts — Municipalities—Building contracts — Construction of sewer — Time of completion — Damages for delay — Cost of cleaning —Inspection—Set-off—Notice to proceed with worh.</p> <p>1. In an action by a contractor against a municipality to recover a balance claimed to be due on a contract for the construction of part of a sewage system in the defendant city, and to secure incidental damages, the court did not err in leaving to the jury tbe question as to whether defendant was entitled to a,set-off for damages resulting from plaintiff’s failure to complete the work on contract time and for an additional amount expended by defendant for cleaning the sewer; where plaintiff introduced evidence to show that defendant had waived its right to a penalty for noncompletion on the specified date, and claimed that the contractors were not obliged to clean sewers and hence could not be charged with the cost thereof; and where defendant offered evidence that the contractors were without a sufficient number of men to complete the contract within the time limit, that they were arbitrary in the conduct of the work and if they had followed the instructions of the city’s authorized agents, the contracts could have been completed on time, that defendant could not inspect the work done by the contractors on account of the accumulation of cement, dirt and other substances stipulated against in the contract, which made it necessary to clean the sewers before they could be inspected, and the officers and engineers of the defendant proved the amounts expended by it in cleaning the sewer and in completing the work under the contract.</p> <p>2. In such case the fact that the plaintiff was ordered to proceed with the work shortly before and after the time limit specified in the contract, is not sufficient to show a waiver by the defendant of its right to damages for delay.</p>

<p>Appeal, No. 171, Jan. T., 1914, by defendant, from judgment of C, P., York Co., Aug. T., 1913, No. 109, on verdict for plaintiff, in case of Ivan R. Hartman v. Western Maryland Railway Company.</p> <p>Trespass for personal injuries. Wanner, P. J., filed tbe following opinion:</p> <p>The plaintiff having secured a verdict for damages for personal injuries, motions for a new trial, and for judgment non obstante veredicto, have been filed by the defendant in this case. The plaintiff’s only ground of recovery was the alleged negligence of the engineer of the defendant’s train:</p> <p>(1) In running at a rate of speed which was dangerous, and in excess of the maximum safe rate, fixed by the rules of the defendant company itself.</p> <p>(2) In negligently applying the brakes on the engine, thereby causing excessive and unusual jolting and swaying of the cars, which threw the plaintiff off, and injured him.</p> <p>The proof of defendant’s negligence practically rested upon the testimony of the plaintiff alone, who was a brakeman in its employ. He was contradicted by two engineers, one fireman, and another brakeman, who were on the same train at the time of the accident, as to the most material facts of the case.</p> <p>The average rate of speed maintained on that trip, according to the train record, was sixteen and one-fourth miles per hour. The maximum rate at. which the rules of the company permit freight trains to be run, was twenty miles per hour, and employees were instructed that a higher rate was unsafe. This train contained thirty-one cars loaded with seventeen hundred tons of freight, and was drawn by two locomotive engines.</p> <p>A new trial is asked for mainly because the verdict for the plaintiff was against the weight of the evidence, on the . subject of the defendant’s negligence, and because the court .refused binding instructions for the defendant. The .other reasons were not pressed. at the argument.</p> <p>The plaintiff testified that the accident happened at the foot of a down grade, on a short curve just at the beginning of an up grade, while the train was running at the rate of from twenty-five to thirty miles per hour. He alleges that he was thrown off the top of a swaying car, by a .series of violent and unusual jolts and jerks resulting from sudden and repeated application of the brakes by the engineer.</p> <p>The defendant’s four trainmen fixed the speed of the train at eight miles per hour, though the fireman admitted, his inability to properly judge the rate of speed. The other three were positive however,.and were employees of longer experience than the,plaintiff himself, in train work. If the weight of the. evidence depended solely upon the number of witnesses testifying to the rate of speed, with no reference to other collateral facts and circumstances, this testimony would be very strongly against the .plaintiff. But there are certain significant facts in the case, throwing light on the rate of speed that a heavily loaded train of cars like this, would probably have attained at the place of this accident. There was a stretch of straight track nearly two thousand feet long, down which it appears that the train ran, to the curve at the foot of it, where the accident occurred. Under ordinary running conditions the speed of a train, under such circumstances, would naturally be much accelerated, so that this one would most probably , have attained a rate above its average speed of sixteen and one-fourth miles per hour. Yet the trainmen estimated its speed at the time of the accident, at only half the average rate per hour, at which the train record shows that it had actually travelled during the entire trip. One of the men even fixed the rate, as low as six miles per hour. This would seem to be quite improbable, and the jury may have for that reason, found the fact, against the defendant’s witnesses.</p> <p>Under such circumstances, it was clearly for the jury to determine the credibility of the witnesses, and the weight to be given to their testimony and the court cannot reverse its finding. The plaintiff was a.much interested party. All the other witnesses as to speed and the application of the brakes, were employees of the defendant, and possibly influenced by that fact. There was some contradictory evidence as to where the upgrade began. Some of the defendant’s witnesses placed it farther west than the point fixed by the plaintiff. The civil engineer of the road fixes the up-grade at about one foot per mile going eastward at the point where the accident occurred. These differences in the testimony as to the actual grade, and as to the speed of the train at the time of the accident, were necessarily submitted to the. jury at the trial.</p> <p>The brakeman, Bowman, who was on the same car with the plaintiff at the time of the accident, denies that there were unusual or violent jerks, jolts, and swayings of the car when the plaintiff fell off. But the officer who subpoenaed the brakeman as a witness, testified that in telling how the accident happened, the latter said that the motion of the car was so violent, that he could keep his own feet with difficulty, at the time of the accident. The officer’s statement as to this was denied by the witness, and by his wife, who claimed to have been present when the subpoena was served upon her husband.</p> <p>It was also testified by one witness that the plaintiff had told him some time after the accident, that he was blinded by the bright light from the open furnace door of the engine, when he fell off the car. This was denied by the plaintiff, at the trial of the case.</p> <p>The proper determination of these and other conflicts of testimony, depends so much upon the credibility of the several witnesses concerned therein, that the case is peculiarly one of the kind in which the law makes the jury the final arbiter.</p> <p>•Where the decision is less dependent upon the credibility of the witnesses, and is more a matter of determining the relative weight and value of clearly proven facts, the court may be able to judge whether or not the testimony has been given due weight by the jury. Under such circumstances, where it is manifest that the jury has overlooked, or disregarded the weight of the admitted or clearly established facts of the case, it may become the duty of the court to set aside such a perverse verdict, and to grant a new trial. But it can never be properly done except in a clear case.</p> <p>This is not a case of that kind, because of the uncertainty and the inherent improbability of some of the testimony, and because the credibility of certain witnesses is called into question, not only by their verbal contradiction of each other, but by the inferences that may be drawn from some of the undisputed facts of the case. The court cannot, under such circumstances set up its own individual judgment against the findings of the jury as to the weight of the evidence, and the credibility of the witnesses, nor can it arbitrarily adopt the testimony of a majority of the witnesses as conclusive: Hitler v. People’s St. By. Co., 27 Pa. Superior Ct. 602; Sanson v. Philadelphia B. T. Co., 239 Pa. 505; Howett v. Philadelphia W. & B. B. B. Co., 166 Pa. 607; Bain v. Petroleum Iron Works, 226 Pa. 414; Bartholomew v. Kemmerer, 211 Pa. 277; Becker v. Traction Co., 52 Pa. Superior Ct. 93; Cromley v. Pa. B. R. Co., 211 Pa. 429.</p> <p>The same observations apply to the conflicting testimony of the several witnesses as to whether or not there were, at the time of the accident, such violent and unusual jolts and jerks of the car as the plaintiff testified had caused the accident to himself.</p> <p>Under all the circumstances of this case, whatever our own judgment might be as to the weight of the testimony on certain questions of fact, we are not prepared to say that the conclusions of this jury are so manifestly wrong, or showed such a disregard of their plain duty, or of the proven facts of the case, as to justify us in setting aside this verdict.</p> <p>We cannot enter a judgment non obstante veredicto, in favor of the defendant, because binding instructions in its favor, for the reasons already stated, could not be given at the trial..</p> <p>Now, to wit, April 27, 1914: The motions for a new trial and for judgment non obstante veredicto are overruled and refused.</p> <p>Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $3,970.20 and judgment thereon.</p> <p>The court dismissed defendant’s motion for judgment n. o. v. Defendant appealed.</p> <p>Errors assigned were in refusing motion for judgment n. o. v., the charge of the court and various an- • swers to points.</p>

<p>Statutes — Construction—Repeal—Subsequent statute — Statutes passed at same session of legislature — Presumption against repeal — Repealing clause — Amending statutes — Act of April 10,1905, P. L. 127; May 28, 1889, P. L. 277; May 28, 1907, P. L. 268; April 15, 1907, P. L. 66 — Boroughs—Election—Incorporation of third class city.</p> <p>1. Where two acts are passed at the same session of the legislature, the presumption is strong against implied repeal, and effect must be given to each, if possible.</p> <p>2. The usual legislative phrase that all acts and parts of acts inconsistent with the act passed are repealed, is only ex majore cautela, for such would be the effect without such a clause, and the question as to what acts are inconsistent is still left open.</p> <p>3. The Act of May 28, 1907, P. L. 268, was intended as an amendment of the Act of April 10, 1905, P. L. 127, which was itself an amendment of the Act of May 23, 1889, P. L. 277, providing for the incorporation and government of cities of the third class, and not as a repeal of the Act of April 15, 1907, P. L. 66. which was passed at the same session of the legislature. The legislature of 1907 intended to amend the Act of April 10, 1905, P. L. 127, in two particulars: (1) in respect to providing another and perhaps additional tribunal to issue the order for holding the election, to determine whether .a city of the third class shall be chartered, and ■ (2) as regards the' manner of voting, form of the ballot, the computation of the returns and the certification of the same.</p> <p>4. Where at a borough election a majority of the qualified electors of the borough voted in favor of incorporation as a city of the third class and all the preliminary steps were taken as provided by law and letters patent were issued by the governor, the court properly refused to strike down the charter in a proceeding instituted three years later in the name of the attorney general on the ground that the Court of Quarter Sessions had issued the order to hold the election as provided hy the Act of April 15, 1907, P. L. 66, whereas it was contended that this order should have been issued by the borough council under the Act of May 28, 1907, P. L. 268.</p>

<p>Negligence — Street railways — Passenger — Premature start — Signal — Charge of court — Inconsistent findings by jury.</p> <p>1. In an action to recover damages for personal injuries sustained hy a passenger in consequence of the premature start of defendant’s street ear at the moment when she was alighting therefrom, which premature start it was alleged was caused by the careless act of the conductor, it appeared from' plaintiff’s testimony that she was injured by a premature start but she offered no evidence as to who had given the signal to the motorman. Defendant proved by several witnesses that the signal to start the car was given by a passenger who was unauthorized by the conductor. The plaintiff, though called in rebuttal, refused to say that the conductor had given the signal. Whether the passenger was within the view of the conductor when he gave the signal was in dispute. The court submitted the question of the defendant’s negligence to the jury, instructing them that they might determine whether the conductor had given the signal to start the car. The jury made inconsistent findings that the conductor “gave the signal to start the car,” and that “the person who gave the signal was in full view of the conductor when it was given.” Held, a new trial must be granted, and that it was error for the court to submit to the jury the question whether the conductor gave the signal, in view of the uneontradicted evidence to the contrary, and the inconsistent findings showing that the jury was misléd by such instruction.</p> <p>2. In such case, where the plaintiff in her statement of claim alleged that the negligence which caused the accident was th-at of the conductor who started the car, it was error for the court to instruct the jury that if they found that the motorman started the car “suddenly, with a jerk or jar,” they might find a verdict for the plaintiff.</p> <p>3. In such case, the trial judge exceeded his discretion in commenting upon the testimony of a witness who had testified positively that plaintiff was safely on the ground before the car started by saying that “he (the witness) thought she had reached the ground,” and in characterizing the testimony of such witness as “remarkable”; and further saying, in referring to the testimony of the conductor, “he would have you believe it,” thus tending to throw discredit upon him.</p>

<p>Railroad companies — Eminent domain — Damages—Measure of damages — Verdict—Proper verdict — New trial — After-discovered evidence — Points for charge.</p> <p>1. The damages sustained by one a part of whose land has been appropriated in eminent domain proceedings is the difference in the market value of the land before and after the taking as affected thereby:</p> <p>2. On ascertaining the value of the whole tract prior to the taking, it is the duty of the jury to consider not only its present use and condition but any use to which it was then adapted or any prospective use which at the time gave it a present value, excluding, however, any use which was merely speculative and to which it, could not reasonably be anticipated the land would in future be applied.</p> <p>3. In a proceeding for - the assessment of damages resulting from the appropriation of plaintiff’s land by a railroad company where there was evidence that the land had a special value as a desirable site for a manufactory, blast furnace with accompanying equipment, or a coke plant with houses for the employees, because it was on a river and had a good harbor for boat landings and because of the facilities for rail transportation on both sides of the river, and where expert witnesses testifying for plaintiff stated that they were familiar with the values of property in the valley for the special uses to which the land was adapted and fixed the damages as ranging from $172,000 to $380,000 a verdict for plaintiff for $72,918 was not excessive although expert witnesses testifying for defendant estimated the damages as from $5,150 to $11,215, the credibility of the witnesses being for the jury.</p> <p>4. In such case, the court made no error in refusing a new trial where in support of the motion, after-discovered evidence was alleged, consisting of affidavits made by two of plaintiff’s' officers appended to reports made to the auditor general which averred that the assessed value of the capital stock of plaintiff company made in pursuance of the sworn statements of the company’s officers, for three years, was $8,000, where it appeared that defendant could have produced such evidence by use of the usual processes of the court at the trial, and especially where such evidence was simply cumulative and corroborative of the defendant’s other testimony as to the value of the plaintiffs property.</p> <p>5. An assignment of error complaining that a point for charge submitted by plaintiff although unobjectionable in its general tenor was not supported by testimony but was affirmed nevertheless by the court, was without merit where it appeared from the record that the point was answered by saying, “The point is correct and is affirmed, provided you should find the facts to be as stated therein.”</p> <p>Evidence — Witnesses—Experts—Opinion — Evidence — Assessments.</p> <p>6. The court did not abuse its discretion in permitting plaintiff’s witnesses on re-direct examination to explain matters brought out in cross-examination or in permitting an expert witness called for plaintiff to express his opinion as to the desirability of running a coke plant in conjunction with a furnace plant in his testimony as to the purposes for which the land could be used.</p> <p>7. Where the testimony disclosed that the land was not only suitable for a manufacturing site, a coke plant, etc., but that owing to its location and adaptability, it h’ad also a present market value for such purposes- on account of its situation, the objection that the estimates of values given by the witnesses were based upon mere speculation as to the possible future use of the land were without merit, and the evidence was properly received.</p> <p>8. The court was correct in permitting expert witnesses to express their opinion as to the market value of the property as a whole prior to the appropriation, where it appeared that the witnesses had knowledge of the district and had long experience in selling properties for manufacturing sites on various rivers in the vicinity; that they knew what was required for a manufacturing site and were familiar with the prices for lands along such rivers adapted to such use or at which they were held by the owners.</p> <p>9. It is proper to exclude answers to questions which are mere repetitions of other questions which had been answered without' objection.</p> <p>10. In eminent domain proceedings, the assessed valuation of the lands condemned may not be shown on cross-examination.</p>

<p>Appeal, No. 114, Jan. T., 1914, by defendant, from decree of C. P. Luzerne Co., Dec. T., 1897, No. 5, in equity, in tbe case of Sarah A. D. Hodgdon, Clarence P. Kidder, S. .Louise D. Davis, Charles E. Dana, A. H. VanHorn, Joseph Birkbeck, Mary G. Lewis and Henry Metcalf v. The Lehigh and Wilkes-Barre Coal Company.</p> <p>Bill in equity for an accounting. Before Fuller, J.</p> <p>The trial of the case was referred to Joseph D. Coons; Esq., as referee, who filed a report, certain exceptions to. which were subsequently sustained by the lower court. The court entered a decree directing the defendant to pay the plaintiffs the sum of $164,819.08. Defendant appealed.</p> <p>Errors assigned were in sustaining certain exceptions to report of referee and the decree of the court.</p>

<p>Insurance — Life insurance — Policies—Construction—Default in payment of premiums — Decision by company — Recovery of premiums previously paid — Absence of forfeiture clause.</p> <p>1. A contract of life insurance providing for the payment of a definite sum to the insured at a definite period, or to his legal representatives at his decease before the end of the period, in consideration of certain annual premiums to be paid by the insured during the continuance of the policy, without qualifying provision of any kind whatever, is not a contract of insurance for one year in consideration of an advance payment with the right of the insured to continue it from year to year upon payment of the stipulated premium, but a contract indivisible and continuous and the consequence of a default -in payment of one of the premiums is to be determined by common law principles parties themselves having failed to provide otherwise.</p> <p>2. In an action to recover premiums previously paid in a policy of life insurance by the terms of which the insurance company agreed in consideration of the payment in advance of a yearly premium and the annual payment of a like sum on or before a given date in each year during the life of the insured or until premiums for twenty full years should have been paid, to pay a principal sum to the insured’s estate, or to himself if he should be living, subject to certain printed conditions and stipulations, not, however, including any forfeiture for the nonpayment of premiums, where it appeared that after paying several premiums the insured became in default beyond the period of grace, that a short time later he tendered ,to the company his check for the amount of premium due with interest, which the company returned and declared the policy void, without any offer to refund the premiums previously paid, a verdict for the plaintiff for the amount of the premiums paid was sustained.</p> <p>3. In such case the’plaintiff’s default in the payment of premiums was a breach of contract and it was then open to the insurer either to waive the breach and accept payment of the premium when offered, in which case the contract would continue uninterrupted, or regarding the default as indicating a desire on the part of the insured to rescind the contract, it could join in that rescission and thereby relieve itself from all further liability on the policy, but only upon refunding what it had received, thus placing the insured in the position he was in before the contract was entered into.</p> <p>Mutual Life Insurance Company v. Girard Life Insurance Company, 100 Pa. 172, distinguished. American Life Insurance v McAden, 109 Pa. 399, followed.</p>

<p>Appeal, No. 33, January T., 1914, by plaintiff, from judgment of C. P. York Co., Oct. T., 1913, No. 20, for defendant, on demurrer to plaintiff’s statement of claim, in case of J. William Jones v. Harry E. Dusman.</p> <p>Assumpsit to recover fees paid to a de facto tax collector. Before Ross, J.</p> <p>From tbe record it appeared that the statement of claim alleged that plaintiff, the duly elected treasurer of the City of York, entered upon his duties on December 4, 1911; that under the Act of June 20, 1901, P. L. 578, it was plaintiff’s duty to collect school taxes assessed or levied in the School District of the City of York, and his right to receive fees and emoluments for so doing; that on May 9,1912, the Board of School Controllers of said district illegally appointed the defendant tax collector of the said school district, who collected taxes and received fees therefor to the amount of $1,-794.42; that on plaintiff’s suggestion for a writ of quo warranto defendant had been ousted from the office of tax collector of said school district and that thereafter plaintiff had demanded said sum of $1,794.42 of defendant and that his demand had been refused. This action was brought for the recovery of said fees.</p> <p>The defendant demurred to the statement. The court sustained the demurrer and entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 7, May T., 1914, by William C. Hagan, from order of C. P. Dauphin Co., Commonwealth Docket, 1908, No. 23, refusing to direct a receiver to surrender certain securities to petitioner in case of Commonwealth of Pennsylvania ex rel. M. Hampton Todd, Attorney General, v. Traders & Mechanics Bank of Pittsburgh, Pa.</p> <p>Proceedings upon the suggestion of the attorney general to wind up the business of a bank.</p> <p>Rule to show cause why a receiver should not be ordered to deliver certain securities to petitioner. Before MgCaeeell, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. Petitioners appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 2, May T., 1914, by plaintiff, from judgment of C. P. Dauphin Co., Sept. T., 1910, No. 544, refusing to take off nonsuit in case of Esther Stahl v. D. S. Sollenberger.</p> <p>Trespass to recover damages for the death of plaintiff’s minor son. Before McCarrbll, 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>Appeal, No. 246, Jan. T., 1914, by defendant, from judgment of O. & T., Bradford Co., Feb. T., 1914, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Samuel Wheeler.</p> <p>Indictment for murder. Before Maxwell, P. J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder of the first degree, upon which sentence of death was passed. Defendant appealed.</p> <p>Error assigned was the charge of the jury.</p>

<p>Appeal, No. 268, Jan. T., 1914, by defendant, from judgment of O. & T., Philadelphia Co., October Sessions, 1913, No. 642, on verdict of guilty of murder of the first degree, in case of Commonwealth v. James Boyd.</p> <p>Indictment for murder. Before Kinsey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The jury found a verdict of guilty of murder of the first degree, upon which sentence of death was passed. Defendant appealed.</p> <p>Errors assigned were various assignments referred to in the opinion of the Supreme Court and the fifth assignment which was as follows :</p> <p>5. That the learned trial judge erred in his charge to the jury wherein he stated......as follows:</p> <p>“The law is that one who so uses upon the body of another, at some vital part, with a manifest intention to use it upon him, of a deadly weapon, such as a pistol, must, in the absence of qualifying facts, know that his action is likely, to kill, and, knowing this, must be presumed to intend the death, which is the probable and ordinary consequence of such an act. And he who so uses a deadly weapon, without sufficient cause of provocation, must be presumed to do it wickedly and.from a bad heart. Therefore, one who takes the life of another with a deadly weapon, and with a manifest design thus to use it upon him, with sufficient time to deliberate and fully to form the conscious purpose of killing, without any sufficient reason or cause of extenuation, is guilty Of murder in the first degree.”</p>

<p>Criminal law — Criminal procedure — Jurors—Challenge for cause —Misconduct of jurors — Continuance—Judicial discretion.</p> <p>1. At the empanelling of jurors for the trial of an indictment for murder, the trial judge did not improperly exercise his discretion in overruling defendant’s challenge for cause of a juror who admitted that he held an opinion as to the guilt or innocence of the defendant, formed from reading an account of the case, where such juror stated that he would he able to render such a. verdict as would be warranted by the evidence, unaffected by the opinion which he held.</p> <p>2. In such case the court acted within its discretion in refusing to withdraw a juror and continue the case, although it was alleged that one of the jurors had slept during a part of the trial, where no proof in support of the allegation was produced and where the investigation of the matter by the trial judge satisfied him that the juror was not asleep during any portion of the trial.</p> <p>Evidence — Cross-examination—Proper questions.</p> <p>3. Where in such case a witness for. the defendant had been questioned in his examination in chief as to occurrences preceding the killing and as to the whereabouts of himself and deceased, and in reply to a question “as he (deceased) went in the house (where the killing took place,) where did you go,” the witness replied, “I stopped in the kitchen for about one second and then went in the front room,” the trial judge made no error in permitting the Commonwealth to cross-examine the witness as to what he said and heard and what was done in the kitchen and front room, although as to such matters the witness had not been interrogated in chief.</p> <p>Manslaughter — Charge to jury — Definition of manslaughter— Proper charge.</p> <p>4. In such case, after explaining to the jury the difference between murder and manslaughter, the court made no error in defining voluntary manslaughter as a “homicide or killing intentionally committed under the influence of passion. The term passion as here used includes both anger and terror, provided they reach a degree of intensity sufficient to obscure temporarily the reason of the person affected......Passion which will reduce homicide to manslaughter consists either of anger or terror......”</p> <p>Murder — Murder of the first degree — .Evidence—Proper conviction.</p> <p>5. Where on the trial of an indictment for murder, there was evidence that defendant had been entertaining a party of friends, among whom was deceased, at his house; that deceased and one of the guests became engaged in an altercation, that defendant with a shotgun in his hand walked into the room where deceased was standing at the corner of the fireplace, passed behind deceased to the other side of the fireplace and shot deceased who was standing with his hands in his pockets, the evidence contained the ingredients necessary to constitute murder of the first degree and a conviction thereof was affirmed.</p>

<p>Appeal, No. 300, Jan. T., 1914, by defendant, from judgment of O. & T., Lancaster Co., April Sessions, 1914, No. 31, on verdict of guilty of murder of the first degree in case of Commonwealth v. Rocco Tassone.</p> <p>Indictment for murder. Before Landis, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree upon which sentence of death by electrocution was passed. Defendant appealed.</p> <p>Errors assigned were in permitting the indictment to be amended after verdict, in refusing to arrest judgment, and the sentence of the court,</p>

<p>Actions — Bes adjudicata — Ejectment—Prior suit in equity between same parties — Binding instructions.</p> <p>1. The rule that a cause of action once finally determined, without appeal, between the parties, on the merits, by a competent tribunal, cannot afterwards be litigated by new proceedings, either before the same or any other tribunal, applies where the cause, of action, while not technically the same, is nevertheless so related to the cause in the prior litigation that some matter, the establishment of which is essential to recovery in the second, was determined in the first.</p> <p>2. At the trial of an action of ejectment where it appeared that plaintiff’s right to possession had been finally adjudicated against him in a suit in equity for specific performance of a contract to convey the land in suit to defendants’ assignors, wherein the decree which was unappealed from, .determined every question raised on the trial of the action of ejectment, the court made no error in directing a verdict for defendants.</p>

<p>Corporations — Corporate elections — Equity—Equity jurisdiction —Preliminary injunction — Appeals.</p> <p>1. A court of equity has jurisdiction to entertain a suit in equity to restrain the holding of a corporate election except under the supervision of the court, where the bill alleges that the defendants have by fraudulent means prevented the holding of a fair and just election, and that if tbe stockholders’ meeting is not controlled by the court, disorder, violence and possible bloodshed will occur.</p> <p>2. Upon appeal from a decree granting or refusing a preliminary injunction, the Supreme Court will look only to see if there were apparently reasonable grounds for the action of the court below.</p>

<p>Decedent’s estates — Executors and administrators — Inventory— Account — Removal—Judicial discretion.</p> <p>1. While the Act of May 1, 1861, P. L. 680, makes the failure to file a true and perfect inventory of the personal property of a decedent, a dereliction for which ah executor or administrator may be discharged, but leaves it in the discretion of the court whether so severe a consequence shall follow, the law does not for this reason look indulgently upon such omission.</p> <p>2. Where in a proceeding for the removal of an executrix it appeared from the petition and answer that a very considerable part of the estate had been omitted from the inventory, and that the executrix had without excuse failed to settle her account for more than three years, the decree of the Orphans’ Court refusing to remove the executrix was amended so as to require such executrix to file a true and perfect inventory, and a just and true account within sixty days.</p>

<p>Appeal, No. 102, Oct. T., 1914, by plaintiff, from judgment of O. P. Armstrong Co., March T., 1914, No. 21, on directed verdict for defendant in case of Essa Seybert v. Hay Walker Brick Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before King, P. J.</p> <p>On the trial it appeared that while deceased was directing and assisting in moving a piece of structural steel by means of gas pipes, the weight of the steel caused it to skid and fall on deceased, killing him.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>Verdict, for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was in giving binding instructions for defendant.</p>

<p>Appeal, No. 116, Oct. T., 1914, by plaintiff, from decree of O. P. Armstrong Co., March T., 1914 No. 133, refusing an injunction in case of Howard Smeltzer v. The Borough of Ford City, Pittsburgh Plate Glass Company and Pennsylvania Railroad Company.</p> <p>Bill in equity for an injunction. Before King, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the injunction and dismissed the bill. Plaintiff 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>

Appeal, No. 68, Oct. T., 1914, by defendant, from judgment of O. P. Westmoreland Go., May T., 1913, No. 177, on verdict for plaintiff in case of Amelia Lee v. The Baltimore and Ohio Railroad Company. Trespass to recover damages for the death of plaintiff’s husband. Before Doty, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,400, and judgment thereon. Defendant appealed.

<p>Equity — Equity practice — Preliminary injunction — Appeals— Practice, Supreme Cjourt.</p> <p>1. On appeal from a decree granting or refusing a preliminary injunction the Supreme Court will not consider the merits of the controversy but will determine only, whether on the facts de-' veloped, an injunction should have been granted or refused.</p> <p>2. Where on appeal from a decree in equity continuing until final hearing an injunction restraining defendant school directors from collecting a tax, issuing bonds and acquiring land for a school building, it appeared that there was a finding by the lower court that the undertaking on which the school directors proposed to enter would increase the indebtedness of the school district beyond the legal limit, the Supreme Court would not further consider the merits of the controversy and affirmed the decree.</p>

<p>Appeal, No. 101, Oct. T., 1914, by defendant, from decree of O. P. Indiana Co., March Term, 1910, No. 201, granting peremptory writ of mandamus in case of John H. Rochester v. Indiana County Gas Company, Harry W. Wilson, President; Joseph W. Clements, Treasurer; Board of Directors of the Indiana County Gas Company.</p> <p>Petition for mandamus to permit inspection of books of corporation.</p> <p>John H. Rochester, the owner of forty-two shares, of capital stock of the Indiana County Gas Company, filed a petition for a writ of mandamus against the Indiana County Gas Company and its officers to produce, and permit the petitioner to examine, the books, papers, records and vouchers of the company for the purpose of ascertaining its true financial condition, the petition averring fraud and mismanagement of the affairs of the company by its officers. Respondent answered and a replication to the answer was filed. On the trial the disputed question Of fact as to whether respondents had refused petitioner’s demand for an inspection of the books was found in favor of the plaintiff.-</p> <p>Ryan, P. J., filed the following opinion:</p> <p>The petitioner is the owner of forty-two shares of the capital stock of the Indiana County Gas Company, a corporation existing under the laws of the Commonwealth, having its chief place of business in the Borough of Indiana, in said County of Indiana. In Ms petition he avers inter alia his belief that the said corporation has been extravagantly managed, that annual statements issued by the officers of said company are so compiled as to furnish no information as to the true disbursements and expenditures of the corporation, the items therein being mixed and lump charges, and that the true value of the stock of said corporation is fraudulently concealed from him that he may be forced to sell out to the majority, represented by the said Harry W. Wilson and Joseph W. Clements, at a price below the real value thereof. He further avers the belief that charges for meters as they appear in the annual statements are incorrect and excessive as are the salaries paid by the company, and that the sums charged in said statements to the cost of drilling new wells are largely in excess of the actual cost thereof and incorrect. He asserts that although the business of said corporation has been increasing, the price of gas raised, and the income increased since the formation of such corporation, the dividends on the stock thereof have been small, and for two years last past no dividend has been declared. He further believes that the said Harry W. Wilson and Joseph W. Clements, are attempting to acquire the stock of the petitioner. The petitioner alleges that in October, 1909, he made a demand upon the said Joseph W. Clements, as treasurer of said company, for permission “to examine the books, papers, records and vouchers of such corporation for the purpose of ascertaining the true financial condition thereof,” which request was refused, and a further application on November 15, 1909, and January 1,1910, upon the said Harry W. Wilson, president, and Joseph W. Clements, treasurer, which demands were also refused. The petitioner declares it to be his belief that “he has been defrauded of a large amount of profits, moneys and dividends to him justly due and owing from said corporation and the officers thereof by reason of the premises aforesaid.” He prays for a mandamus, commanding the said Indiana County-Gas Company, Harry W. Wilson, President, Joseph W. Clements, Treasurer, and the Board of Directors of such corporation “to produce at some convenient time and place, as by the court may be designated, all books, vouchers, papers, stocks and accounts of the said Indiana County Gas Company, for the inspection of the said John H. Rochester, and to permit him, the said John H. Rochester, together with such expert or experts and counsel as he may designate, to inspect and examine the same and make extracts therefrom.” In his notice to the said Harry W. Wilson, President, and Joseph W. Clements, Treasurer, of January 1, 1910, the petitioner alleged the purpose for which he desired to make the examination to be the ascertaining of the amount of profits and the disposition of the entire receipts of such corporation, the value of the stock of such corporation, and who are the stockholders, whether the said corporation has been extravagantly managed and its funds misapplied to the injury and loss of the stockholders and especially of the petitioner, to the end that the petitioner may prepare a bill in equity for an accounting between him and the said corporation and its officers for all profits, dividends and moneys that may be found on such inspection to be in any way due and owing to the petitioner or to which he may be entitled. The respondents in due course filed an answer, to which the petitioner responded with a replication. The material matters put in issue by these pleadings are, first, the charge of the refusal of petitioners’ demand by Messrs. Wilson and Clements as officers of the said corporation, and, second, the right of the plaintiff, under the circumstances, to the remedy of a mandamus, which he invokes. The question of fact involved in the first issue has been determined by a special verdict rendered by a jury, in favor of the plaintiff. There remains to be considered the question of the plaintiff’s right to the remedy which he seeks. We think that this case is ruled by Commonwealth v. Phoenix Iron Company, 105 Pa. 111, and Phoenix Iron Co. v. Commonwealth, 118 Pa. 563. Here, as there, a stockholder, who has been refused access to the books, papers and records of the corporation, by its officers, asks for a mandamus to compel the latter to permit him to inspect the same that he may prepare and file a bill in equity, to obtain relief against the abuses of which he complains. The right of a stockholder to an inspection of the books and papers of a corporation, in a proper case, is clearly established and it would be an affectation of learning to cite authorities in support of the proposition. See Phoenix Iron Company v. Commonwealth, supra. “Such a right is of course not to be exercised to gratify curiosity, or for speculative purposes, but in good faith, and for a specific, honest purpose, and where there is a particular matter in dispute, involving and affecting seriously the rights of the relator as a stockholder.” Phoenix Iron Company v. Commonwealth, 113 Pa. 563. The language of the Supreme Court in its first opinion in the above cited case reported in Commonwealth v. Phoenix Iron Co., 105 Pa. Ill, may be adopted here. “The relator avers that he purposes filing a bill in equity against the corporation and its officers, and that it is necessary that he see the books and papers in order that he may correctly state the facts now concealed from him. Upon learning the facts he may abandon his purpose for want of matter of complaint. He desires ‘to inspect and see whether he can raise a particular case in his favor by examining the books’; upon the verity of the facts set forth in his petition, we are of opinion that he is entitled to an alternative mandamus. The writ should not extend to any books and papers other than such as contain information upon the subjects specified in the prayer of the petition.”</p> <p>The court granted the writ of mandamus as prayed for. Respondents appealed.</p>

<p>Appeal, No. 166, Oct. T., 1914, by plaintiffs, from judgment of C. P. Washington Co., in equity, No. 2222, sustaining demurrer to bill in equity in case of Maggie A. Rice, Peter Kane, Daniel Kane, Owen Kane, John Bellew, Malachy Bellew, Joseph Bellew and Bernard Bellew v. Anna Braden and O. D. Bleakley, Trustee under the last will and testament of Sarah McKeown, deceased.</p>

<p>Appeal, No. 202, Oct. T., 1914, by plaintiff, from judgment of C. P. Washington Oo., May T., 1913, No. 81, refusing motion to take off non-suit in case of Mary Eliza Robison v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Telford, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing to take off nonsuit.</p>

<p>Appeal, No. 156, Oct. T., 1914, by plaintiff, from decree of O. P., No. 4, Allegheny Co., Second T., 1911, No. 578, dismissing bill in equity for injunction in case of William H. Stevenson v. Walter C. Mellor, George B. Mellor, and Charles Albert Dickson, Executors and Trustees under the last will and testament of C. C. Mellor, deceased, Laura Mellor, and the Reinforced Concrete Construction Company.</p> <p>Bill in equity to enjoin the use of a party wall and enforce payment of a portion of the cost thereof.</p> <p>After hearing exceptions to findings of fact and conclusions of law, and supplemental findings and conclusions, Ford, J., filed an opinion which was in part as follows : “Upon the hearing of this case we were of opinion that the building as remodeled and reconstructed by the defendants imposed a different burden on the party wall and was therefore a new use for which the defendants were bound to pay. Since the filing of the findings of fact and conclusions of law the case of the German National Bank v. Mellor, 238 Pa. 415, Was decided by the Supreme Court. The case arose over the erection by the defendants herein of a building and concerning a party wall on the opposite side of the same lot.......</p> <p>In the case at bar the facts, in so far as the plaintiff claims differ from the facts in the German Bank case, are substantially that defendants excavated the cellar to an average depth of three feet below the old surface; that the German Bank case disclosed no evidence regarding the condition of the old party wall; that.the expert testimony on the part of the plaintiff states that the old wall was insufficient to maintain the Mellor building; that a new ceiling was constructed on the fourth floor of the Mellor building; that the erection of a chimney or smoke stack in the rear of the Mellor building is a new construction and that the cutting of channels is a new use.</p> <p>In the German Bank case, as in this, the cellar was excavated to an additional depth of three feet. Here the party wall was old and out of repair, but the experts called by the plaintiff did not testify that the old wall would not support the new Mellor building. In the old building the ceiling followed the line of the roof. In the new building the ceiling was lowered, hung partly from the roof and rested partly on the party wall. The construction was in effect new, but the use of the new party wall was substantially the same as in the old wall.</p> <p>There is no testimony that the chimney or smoke stack in the rear could not have been built against the old party wall.</p> <p>Upon careful consideration, we think the facts shown in this case do not differ materially from the facts and the case is governed by the decision in the German National Bank case, 238 Pa. 415. The changes and alterations, though varied, made by the defendants in their building could have been made had the old wall not been removed and a new wall constructed.</p> <p>Applying the rule that “the reasonable test of what a new use is whether it is a use that could not have been made of the old wall,” it would seem to be clear that the defendants have not made such new use of the wall as to make them liable to pay the one-half of the cost thereof.</p> <p>The court dismissed the bill at plaintiff’s costs. Plaintiff appealed.</p> <p>Error assigned was, among others, the decree of the court.</p>