Volume 247 — Pennsylvania State Reports

<p>Appeal, No. 160, Oct. T., 1914, by defendant, from judgment of G. P. Armstrong Co., March T., 1913, No. 180, on verdict for plaintiff in case of Lulu Rinehuls v. Yan Horn Ely, receiver of the Western Allegheny Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before King, P. J.’</p> <p>The facts appear in the opinion of the Supreme Court and in Rinehuls v. Ely, 242 Pa. 537.</p> <p>Verdict for plaintiff for $11,488 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various assignments referred to in the opinion of the Supreme Court.</p>

<p>Practice, O. P. — Trials—Bubpcena duces tecum — Bubpcena issued by court on own motion.</p> <p>1. In an action against a newspaper to recover damages for the publication of a libel, the trial judge did not err in directing on his own motion the issuance of a subpoena to compel the appearance of an officer of the defendant company for the purpose of proving its publication of the paper containing the alleged libel, especially where such action was taken not only without objection from counsel for defendant hut really at their suggestion.</p> <p>Libel — Publication in newspaper — Proof of publication — Measure of damages — Punitive damages. .</p> <p>2. In an action against a newspaper to recover damages for the publication of an alleged libel the defendant cannot raise the question as to the sufficiency of proof of publication where sufficient proof is found in the testimony of its own witnesses.</p> <p>3. Where in an action against a newspaper to recover damages for the publication of a libel it appeared that on the hearing of an adultery charge before an alderman the name of the plaintiff was mentioned in connection with the alleged adultery, and in publishing an account of the hearing the defendant erroneously stated that the plaintiff was the defendant in the adultery case and was held for court, the court did not err in leaving to the jury the question as to whether punitive damages should be awarded.</p>

<p>Appeal, No. 50, Oct. T., 1914, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1912, No. 60, for defendant on demurrer to plaintiff’s statement of claim in case of W. T. Hogue and R. F. Hogue, trading as Hogue Brothers & Company, v. American Steel Foundries, a corporation.</p> <p>Assumpsit to recover amount equivalent to dividends on preferred stock. Before Cohen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court sustained defendant’s demurrer to plaintiffs’ statement of claim, and entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Practice, Supreme Court — Appeals—Paper boohs — Statement of question involved — Statement of undue length — Supreme Court Bule No. SJf.</p> <p>Where the question involved in an appeal could have been adequately stated in two lines but occupied twenty nine lines, covering three-fourths of a page, in violation of Supreme Court Rule 34, the appeal was quashed.</p>

<p>Appeal, No. 210, Oct. T., 1914, by plaintiff, from judgment of C. P. Somerset Co., Dec. T., 1913, No. 248, on directed verdict for garnishee, in case of John G. Ogle, executor of W. H. Koontz, use of Francis J. Kooser v. Elsie S. Barron, defendant, and the Supreme Council of the Royal Arcanum, garnishee.</p> <p>Attachment execution. Before Ruppel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for the garnishee by direction of the court, and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence; in directing a verdict for the garnishee, in refusing to direct a verdict for the plaintiff and in refusing to enter judgment for the plaintiff n. o. v.</p>

<p>Corporations — Water companies — Water works — Acquisition by municipality — Acts of May 31, 1907, P. L. 355, and April 29,1874, P. L. 73, Sec. 7 — Public Service Company Law of July 26, 1913, P. L. 1374, Art. 3 — Inspection of books — Mandamus.</p> <p>1. The Act of May 31, 1907, P. L. 355, providing a method of determining the price when a municipality is willing to buy the plant of a water company, which the latter is willing to sell, is not inconsistent with section 7 of the Act of April 29, 1874, P. L. 73, providing a procedure by which a municipality may compel a conveyance to itself of a privately owned water plant within its boundaries, and does not expressly or by implication repeal the earlier statute.</p> <p>• . 2. The Act of July 26, 1913, P. L. 1374, Art. 3, requiring the approval of the Public Service Commission to the acquisition by a municipality of the plant of a water company does not effect a change of procedure merely, but qualifies the former rights of municipalities to take over the property of water companies within their limits and is not retroactive, so as to require the approval of the commission of proceedings pending at the date when the act became effective. .,</p> <p>3. A mandamus will issue at the instance of a municipality which has elected to take over the plant of a water company, under the Act of April 29, 1874, P. L. 73, to compel the water company to allow access to its books and papers so' that information as to the value of the plant can be. secured.</p>

<p>Appeal, No. 134, Oct. T., 1914, by defendants, from judgment of O. P. Armstrong Co., June T., 1912, No. 127, for plaintiff n. o. v. in case of Wellington R. Hare, administrator d. b. n. of the estate of Patrick O’Brien, deceased, v. Robert P. O’Brien, Helen O’Brien, Karl O’Brien, Gertrude O’Brien, Etta O’Brien and Robert A. O’Brien.</p> <p>Ejectment for the recovery of lands in Armstrong County. Before Painter, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendants for the land described in the writ. The court subsequently entered judgment for plaintiff n. o. v. Defendants appealed.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 191, Oct. T., 1914, by plaintiff, from judgment of O. P. Westmoreland Co., May T., 1912, No. .590, refusing to take off nonsuit in case of Frank W. Ruffner v. Jamison Coal & Coke Company. Trespass to recover damages for assault and battery. Before McConnell, J. The opinion of the Supreme Court states the facts. The trial judge entered a compulsory nonsuit which the court in banc subsequently refused to take off. Plaintiff appealed.

Appeal, No. 194, Oct. T., 1914, by plaintiff, from judgment of C. P. Westmoreland Co., May T., 1912, No. 863, on directed verdict for defendant in case of First National Bank of Mifflintown, Pa., v. First National Bank of New Kensington, Pa. Assumpsit for money had and received to plaintiff’s use. Before McConnell, J. The opinion of the Supreme Court states the facts. Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.

<p>Real property — Title to land — Equitable ejectment — Parol sale— Part performance — Evidence—Sufficiency—Relevancy.</p> <p>1. A parol contract in respect to land, although within the statute of frauds, will sometimes be specifically enforced and this is especially true if the contract has been partly executed.</p> <p>2. Where one enters into possession under a parol contract to purchase land and follows that possession by making valuable improvements thereon, cultivates the soil as his own and performs other acts which under the law are deemed to be the indicia of ownership, there may be such part performance as to take the case out of the statute.</p> <p>3. In an action of equitable ejectment to determine title to land of which plaintiffs were the record owners, the case was for the jury where defendant’s evidence tended to show that plaintiffs’ grantor had agreed by parol to sell the land to defendant, that defendant had paid a part of the purchase-price, in cash and securities, and that the balance had been satisfied, by the rentals of oil and gas leases made by plaintiffs’ grantor under an agreement with defendant that the rentals should be received on account of the purchase-price, that defendant had entered under the contract, and held possession as owner, not as tenant, and had paid taxes, cultivated the soil and made improvements.</p> <p>4. In such case, evidence of the payment of rentals to plaintiff and the amount thereof was relevant, as tending to show that the agreed purchase-price had been paid, there being evidence that when the conveyance to plaintiff was made she was chargeable with knowledge of her grantor’s contract with defendant for the conveyance of the land and the application of the rentals.</p>

Appeal, No. 196, Oct. T., 1914, by defendants, from judgment of C. P. Venango Co., April T., 1912, No. 49, on verdict for plaintiff in case of Elizabeth Forster v. Louis Rogers, Charles Rogers and Hugh Rogers, partners doing business as Rogers Brothers. Trespass to recover damages for the destruction of plaintiff’s house by an explosion of dynamite. Before Criswell, P. J. The opinion of the Supreme Court states the facts.

<p>Municipalities — Boroughs — Natural gas companies — License fees — Reasonableness—Cost of inspection — Case for jury.</p> <p>1. Municipalities cannot impose a revenue tax under the guise of a police regulation.</p> <p>2. Whether an ordinance imposing a license tax be reasonable and consistent with the law is generally a question for the court. When the reasonableness of the ordinance turns upon the amount of a license charge it may rightly be left to the determination of a jury as a mixed question of law and fact.</p> <p>3. Prima facie an ordinance fixing an annual license charge upon a public service corporation for police supervision is presumed to be reasonable but this is a presumption only which can always be rebutted by facts showing it to be unreasonable. It devolves upon the complaining company to show that the ordinance is not reasonable.</p> <p>4. When the reasonableness of a license charge under an ordinance is tried before a jury the parties are entitled to a finding of the jury upon that question unless the testimony is such as to compel a decision one way or the other, in which event the court may in a proper case direct a verdict.</p> <p>5. In an action by a borough to recover delinquent annual license fees charged against a natural gas company, where it was alleged that the charges were unreasonable, in that they were largely in excess of the actual cost of inspection, the case was necessarily for the jury, where there was evidence, although contradicted, tending to show the cost of inspection and from which the jury might have drawn the conclusion that the fees were not unreasonable.</p>

<p>Corporations — Water companies — Eminent domain — Act of April 29, 1874, P. L. 73 — Act of May 16,1889, P. L. 226; June 19,1871, P. L. 1360 — Equity—Bill for injunction — Approval of bond — Improper use of water — Collateral attack.</p> <p>1. A water'company incorporated by a private act, which has accepted the provisions of the Constitution of 1874, and the Act of April 29, 1874, P. L. 73, relating to the creation and powers of corporations, acquires under the Act of May 16, 1889, P. L. 226, amending the Act of 1874, and conferring upon water companies additional powers, the right of eminent domain, in the exercise of which, it may appropriate so much of the waters of a river, as may be necessary for its corporate purposes and docs not by accepting the provisions of the Act of 1874 lose or surrender its franchise to supply five boroughs, designated in its charter, and was not thereby required to confine its supply of water to one of the five boroughs mentioned therein.</p> <p>2. In a suit in equity to test the right of a water company to appropriate the water of a river under its alleged right of eminent domain, the fact that the bond filed to secure the payment of the damages had not been approved by the court is not material where it appears that the water of the stream had been appropriated by the company sixteen years before plaintiff purchased his land, of which plaintiff had full knowledge when he purchased.</p> <p>3. The propriety of the use made of water which a water company, in the exercise of its franchise, has the right to take, cannot be questioned under the Act of June 19, 1871, P. L. 1360 by a private individual collaterally. If such company makes any improper use of the water which it takes, it is answerable to the Commonwealth alone.</p>

<p>Wills — Will and codicil — Construction.</p> <p>Where testator devised six farms to his children, and further devised a vein of coal underlying said lands to his children, in a manner provided, and by a codicil to his will in making reference to the gift of the vein of coal, described it as underlying only two of the said farms, which he specifically named, the gift will be construed to carry the vein of coal underlying said two farms only, especially as it appeared that the gift of all six of the farms was in language sufficiently broad to carry the coal as well as the surface, except for the special gift of therein underlying the farms mentioned. The explanation in the codicil of the language previously used in the will will be read as a part of the will itself.</p> <p>Cruzen v. Boughner, 196 Pa. 12, followed.</p>

<p>Negligence — Master and servant — Cause of accident — Fellow servant rule — Judgment for defendant, n. o. v.</p> <p>In an aqtion of trespass to recover damages for the death of plaintiffs’ son, caused by his being struck with a red-hot iron rod, which was passing through a roll in the mill of defendant, his employer, judgment was properly entered for defendant n. o. v., where it appeared that while the negligence charged was in employing an incompetent workman, the cause of the accident was not the alleged incompetence of the workman, who was a fellow servant, but his negligence in passing the rod through the roll, after assuring deceased that he would not do so.</p>

<p>Appeal, No. 99, Oct. T., 1914, by plaintiff, from decree of O. P. Allegheny Co., Oct. T., 1912, No. 1769, in equity, dismissing bill in equity for partition in case of Leila Zug King v. Walton W. King, J. C. Garard, J. E. McKelvey, Milton R. Travis, Guardian of Margaret Virginia King, Caroline S. King Freeborn, Mary Teagarden, Frances Teagarden, Tillie Robinson, Union Trust Co., Guardian of John Lindsay King, Connolly-Fanning Company, a Corporation, Annie Louisa Lathwood and Annie Louisa Lathwood, Executrix of James Lathwood, deceased, and Frank R. Stoner.</p> <p>Bill in equity for partition. Before Shafer, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

Appeals, Nos. 124 and 125, Oct. T., 1914, by defendant, from judgment of C. P. Allegheny Co., May T:, 1911, No. 191, in case of Frank Wechsler, by his mother and next friend, Fannie Wechsler, and Fannie Wechsler in her own right, v. The Pittsburgh Railways Company. Trespass to recover damages for personal injuries. Before Evans, J. The opinion of the Supreme Court states the facts. Verdict for Frank Wechsler for $2,250, and for Fannie Wechsler for $1,427 and judgment thereon.

<p>Common carriers — Railroad companies — Demurrage regulations —Reasonableness.</p> <p>1. In an action by a common carrier against a furnace company to recover demurrage charges in accordance with the rules of the plaintiff company upon cars delivered to the defendant company and not unloaded within the prescribed period, it is not error for the court to refuse to submit to the jury the question of the unreasonableness of such regulations in the absence of evidence to the contrary; and this is particularly true where the question involved is the amount of free time allowed for unloading cars, and it appears that in addition to 48 hours free time accorded to all shippers the defendant was allowed from 72 to 102 hours free time for unloading the cars in question, besides Sundays and holidays, and under certain conditions 48 hours additional, which is in excess of the free time required to be allowed by the Act of May 24, 1907, P. L. 229.</p> <p>Principal and agent — Agency for receipt of freight — Industrial railroad companies — Evidence of agency.</p> <p>2. An industrial railroad, connecting a blast furnace with a common carrier, is properly found to be the agent of the furnace company for the receipt of freight from the carrier, and the furnace company is properly made defendant in an action to recover demurrage charges, where it appears that the industrial railroad operated only upon the premises of the blast furnace company and in connection with its business ; that freight received by the lateral railroad was receipted for in the name of the furnace company, and that delivery to the lateral railroad was regarded by the furnace company as delivery to itself. It is not material that the furnace and the railroad were owned by separate corporations, or that the common carrier paid a switching charge to the lateral railroad, where such payments were subsequently received by the furnace company.</p>

<p>Appeal, No. 31, Oct. T., 1913, by plaintiff, from order of O*. P. Lawrence Co., Sept. T., 1906, No. 221, opening judgment in case of Jay Crawford White v. Joseph S. White.</p> <p>Eule to open judgment. Before Porter, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court opened the judgment. The judgment plaintiff appealed.</p> <p>Error assigned was in opening the judgment:</p>

<p>Equity — Bill to enjoin obstruction of street — Dedication—Conflicting evidence — Findings of fact — Appeals.</p> <p>On a bill in equity to restrain defendants from obstructing a portion of a street which had been vacated by an ordinance of a city, in which plaintiffs, who were lot owners on the street, alleged they had a right to free and uninterrupted use, by reason of its dedication by former owners, in such a way as to guarantee the plaintiffs such free and uninterrupted use, where the main question was that of dedication, and.the essential findings of fact, based upon conflicting evidence, were against the plaintiffs’ contention, the decree refusing an injunction was affirmed.</p>

<p>Trespass — Suit for alienation of affections — Evidence—Charge of court — Answer to points — Remarles of counsel.</p> <p>1. In the trial of an action for the alienation of the affections of plaintiff’s wife, evidence that plaintiff had been attentive to another woman more than three years after the alleged wrong was committed, and after the beginning of his action, is irrelevant, and was properly excluded.</p> <p>2. It is not error for the court in affirming a point reciting facts to instruct the jury that they should take into consideration not only the matters stated in the point, but all other facts and circumstances established by the evidence.</p> <p>3. An alleged objectionable remark of counsel cannot be considered by the Supreme Court, where there was no motion to withdraw a juror and continue the case.</p> <p>4. Where there is no omission or instruction in a charge to the jury that calls for a disturbance of the judgment, the case will not be reversed because the charge did not recite the evidence in detail.</p> <p>Practice, Supreme Court — Points previously decided.</p> <p>5. Upon a second appeal to the Supreme Court, points decided upon the first appeal will not be re-considered.</p>

Appeal, No. 225, Oct. T., 1914, by the plaintiff, from judgment of C. P. Lawrence Co., Sept. T., 1913, No. 77, refusing to take off nonsuit in case of William A. Rhodes v. The Steel Car Forge Company. Trespass to recover damages for personal injuries. Before Porter, P. J. From the record it appeared that plaintiff was employed in a foundry and operated a drill press for drilling holes in steel plates or yokes.

<p>Appeal, No. 62, Oct. T., 1914, by defendant, from judgment of O. P. Butler Co., Sept. T., 1913, No. 64, on verdict for plaintiff in case of Anna L. Moore v. The Pittsburgh and Butler Street Railway Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband.</p> <p>The facts appear in the following opinion of Gal-breath, P. J., sur defendant’s motion for a new trial and for judgment n. o. v.:</p> <p>The jury before which this case was tried returned a verdict in favor of the plaintiff. The court is now asked to enter judgment in favor of the defendant notwithstanding the verdict. The plaintiff’s deceased husband was in the employ of the defendant company at its car barns in Mars. This barn was in charge of John Clark, master mechanic of defendant company, whose assistant was Mr. Adair. On part of plaintiff it is alleged that the deceased met his death by reason of being thrown from the top of a car which had been brought into the barn for repairs, and on which he was working, by receiving an electric shock which threw him to the cement floor, causing injuries resulting in his death on the succeeding day. On part of plaintiff it is alleged that the defendant company’s negligence consisted in not properly instructing the deceased as to the nature of his duties and the dangers incident thereto and in not keeping and maintaining proper and safe appliances for the prevention of injury to its employees and in not supervising and looking after the deceased in his work so as to protect him from injury, and in not keeping in repair all the instrumentalities and places in which the said deceased was working.</p> <p>The deceased had been in the employ of the defendant company in all, for a period of about one month, but not consecutively. His injury occurred on September 27th, 1912. That particular period of employment began on September 24th. His previous employment had not been in connection with the inspection and repair of cars, but in another department known as the shop. At the time of his injury, the deceased was working with Charles Angert, whose duty it was to inspect and repair cars brought into the barn. Angert testifies that Clark, the master mechanic, brought Moore to the department in which Angert was working and told him that Moore was to work with him and to show him what he was to do and that was all the instruction given by Clark to Angert relative to Moore. This was on Tuesday prior to the Friday on which the accident occurred. Angert testifies that he instructed Moore how to pull the switches in the switch box, by which the current was turned on and off from cars in the barn, explained those matters to him and also informed him that if he would touch a live wire he would be killed. The evidence discloses that one of the safety appliances for the protection of persons working on the cars was a ground wire, which, when in place, would knock out the fuse in case the current were turned on and thus prevent it from endangering those who were working on or about the cars. The evidence does not show that Moore was instructed as to the use of this wire or that it was in place at all when he was sent upon the car to work. The evidence indicates that it was not. Considering the dangerous character of the work and especially of the place where the work was to be done by the deceased in tbe department to which he had been recently assigned, we think it might well be left to a jury to say whether or not the somewhat casual and general instructions which were given to the deceased by Angert, his fellow workman, were a full compliance on the part of the defendant company with the duties which it owed to him in order to his safety.</p> <p>At the time Moore was working on top of the car Angert and another workman by the name of Rohrer were working beneath the car. Both of them were called away from the car to the shop which occupies the other side of the building and is separated from the department where Moore was working by a wall through which a door opened between the two departments. Rohrer says that there was no current in the car when he was called to the other department; that in from three to five minutes thereafter he was called back on account of the injury to Moore and that when he returned he thinks the light was in the car; that he went to the switch box and found that the switch was in, throwing power into the trolley. Angert testifies that he was called back for the same reason. He, too, says, that while he was working on the car, before being called to the shop department, the current was not on the car. He says that at the time of the accident he was employed at his bench in the other department about seventy-five feet away and that Clark, the master mechanic in charge of the barn, called on him to come. He says he saw Clark standing about thirty feet from the car calling and waving his hands and that when he went over Clark said to him that a man had got shocked. This statement of Clark, that a man had gotten shocked, was for the time being, excluded from the testimony for further consideration before admitting it. We are now persuaded that this evidence as to what was said by Clark who was a vice-principal of the defendant company at that time should have been received. Angert says that when he arrived at the car he found Moore on the ground and Adair seeking to straighten him out on the cement floor. Angert testifies further that when he arrived at the place of the accident Moore, Adair and Clark were the only persons there. Angert testifies that the fingers of Moore’s left hand showed that they had been burned and also that he detected the odor of burnt flesh, that he had experienced these things before and knew what the odor meant.</p> <p>Inasmuch as the evidence tends to show that there was no current in the.line when Angert and Rohrer were called away from the car and that within from three to five minutes thereafter upon their return the current was in the car, and inasmuch as the only persons besides Moore who were present at the time were Clark and Adair, the master mechanic and his assistant, it seemed proper to submit these facts to the jury for such inferences as might reasonably be drawn from them as to the agency by which the current had been turned on; and in this connection the jury were instructed in substance that if they were reasonably led to the inference from the facts in evidence that from the presence of Clark, the master mechanic in charge of the barn and his assistant, Adair, and no other person in position to turn on the current, it was turned on by them or either of them at a time when Moore was working on the car, thereby endangering his life, that such act would be the act of the defendant, company. We are not persuaded that there was any error in thus submitting this phase of the case to the jury. Admittedly, Moore himself was not in position to have turned on the current. The ground wire was not in place to protect him and in the apparent absence of any other agency by which it would have been possible for the current to be turned on, it seemed proper to leave to the jury the question whether or not it had not been done by either Clark or Adair, both of whom were present at the time. The absence of other persons excludes the supposition that the current might have been turned on by an outsider and thus the fact that the switch box was not protected, apparently, as it should have been from such intrusion, does not seem an important fact in the case.</p> <p>On part of the defendant company it is urged that there is no evidence in the case from which the jury could find that there was sufficient current in the line to cause a shock to Moore sufficient to effect the burns upon his hand or to throw him from the car. The evidence discloses that there was sufficient current, if turned on, to move the car. Not only had it been brought into the barn a short time before, but immediately after the accident, as the evidence is, the car was moved in order to give air to the injured man and the current was evidently sufficient for that purpose, and in these days of somewhat common knowledge of the force and effect of a current sufficient to move passenger cars, we think it was not improper to permit the jury, if in their judgment the facts warranted it, to draw the inference that the current in the line at the time was sufficient, if Moore were brought in contact with it, to throw him from the place where he had been working. It is further objected that there is no evidence that his death was the result of an electric shock. Whether death resulted immediately from the shock or from the injuries resulting is immaterial if the testimony was sufficient to warrant the jury in inferring and concluding that the injuries resulting from his fall were occasioned by his being thrown from the top of the car by reason of the turning in of the electric current.</p> <p>We were not persuaded at the trial of the case that it was the duty of the court to direct a verdict for the defendant, nor are we now persuaded that it is the duty of the court to direct a judgment in favor of the defendant, notwithstanding the verdict. We think there is evidence which it was proper and necessary to submit to the jury on the question of whether or not Moore had been properly instructed as to the dangers incident to his employment in the means whereby he might protect himself from such danger and also to find whether or not the current was turned in while Moore was working upon the car by some one representing the defendant company, and if so, whether or not his death resulted from the injury consequent upon coming in contact with a live wire. For this reason, the rule for judgment, n. o. v. is discharged.</p> <p>Verdict for plaintiff for $4,848, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, and in refusing to enter judgment for defendant, n. o. v.</p>

<p>Appeal, No. 149, Oct. T., 1914, by James W. Closser and Corbly K. Spragg, terre tenants, from judgment of C. P. Washington Co., Aug. T., 1912, No. 444, on directed verdict for plaintiff in case of John Hi Strawn, Trustee, v. James L. lams and George P. Auld, with notice to James W. Clouser and Corbly K. Spragg, assignees for the benefit of creditors of said James L. lams, and Clement Powell, terre tenants.</p> <p>Scire facias sur mortgage. Before McIlvaine, P. J.</p> <p>Prom the record it appeared that the mortgagor, more than four months after the execution and recording the mortgage, made an assignment for the benefit of creditors. The assignees offered evidence that the mortgage was given in fraud of the mortgagor’s creditors. The evidence was excluded.</p> <p>Verdict for plaintiff by direction of the court for the amount of his claim, $148,950.62, and judgment thereon. James W. Closser and Corbly K. Spragg, assignees for the benefit of creditors) appealed.</p> <p>Errors assigned were in excluding the evidence referred to above.</p>

<p>Appeal, No. 150, Oct. T., 1914, by George F. Auld, defendant, from judgment of O. P. Washington Co., Aug. T., 1912, No. 444, on directed verdict for plaintiff in case of John H. Strawn, Trustee, v. James L. lams and George F. Auld, with notice to James W. Closser and Oorbly K. Spragg, assignees for the benefit of creditors of said James L. lams, and Clement H. Powell, terre tenants.</p>

<p>Appeals, Nos. 163 and 164, Oct. T., 1914, by defendants, from judgments of Superior Court, Nos. 110 and 111, April T., 1914, affirming judgments of Q. S. Allegheny Co., Sept. Sess., 1913, No. 289, on verdict of guilty in case of Commonwealth v. W. J. Lavery and Leo Kennelly.</p> <p>Appeal from Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court and in Commonwealth v. Lavery, et al., 57 Pa. Superior Court 154.</p> <p>The defendants were indicted for pandering under the Act of June 7, 1911, P. L. 698. A verdict of guilty was found and sentence was imposed.</p> <p>The judgment of the Court of Quarter Sessions was affirmed by the Superior Court. Defendants appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Contracts — Technical terms — Testimony to explain — “Burlesque combinations"</p> <p>The words “burlesque” or “burlesque combinations,” used in a written contract calling for the production of theatrical attractions, are technical terms and it is not error to admit evidence to explain their meaning.</p>

<p>Appeal, No. 119, Oct. T., 1914, by defendant, from judgment of O. P. Indiana Co., March T., 1911, No. 186, on verdict for plaintiff, in case of Ford Parry v. Cambria & Indiana Railroad Company.</p> <p>Appeal from award of viewers. Before Telford, P. J.</p> <p>The opinion of the Supreme Court, states the facts.</p> <p>Verdict for plaintiff for $1,700 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were the third assignment, referred to in the opinion of the Supreme Court, and the first and second assignments, which were as follows:</p> <p>1. —The court erred in admitting the testimony of R. D. Holmes as follows:</p> <p>“Q. — From your knowledge of the Ford Parry farm and the market value in the community, what was the market value of the Ford Parry farm immediately before the condemnation and occupation of it by the railroad company, for railroad purposes?</p> <p>“The question is objected to for the reason that the witness has not qualified himself to answer it.</p> <p>By the Court :</p> <p>“Objection overruled, exception noted and bill sealed.</p> <p>“A. — $7,500.”</p> <p>2. —The court erred in admitting the evidence of E. B. D. Holmes as follows:</p> <p>“Q. — From your knowledge of market values, in the neighborhood of the Ford Parry farm, what was the market value of his farm, excluding the coal and mining rights, at and immediately before the appropriation of the right of way through it by the railroad company?</p> <p>“Objected to as the witness has not qualified himself to testify as to the market value, and the testimony is objected to as incompetent.</p> <p>By the Court :</p> <p>“Objection overruled, exception noted and bill sealed.</p> <p>“A. — $7,500.”</p>

Appeal, No. 189, Oct. T., 1914, by defendant, from judgment of O. P. Indiana Co., March T., 1910, No. 294, on verdict for plaintiff in case of Hugh E. Williams and Edward H. Williams v. Cambria & Indiana Railroad Company. Appeal from award of viewers in condemnation proceedings. Before Telford, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,810.40 and judgment thereon. Defendant appealed.

<p>Negligence — Master and servant — Bes ipsa loquitur — Evidence of negligence — Nonsuit.</p> <p>As between master and servant there is no presumption of negligence from the mere happening of an accident, and where an employee was injured by the fall upon him of a pile of frames ■which his fellow servants had erected, a nonsuit was properly entered where there was no evidence of negligence in the manner of piling the frames, or that if so piled notice thereof had been given to the defendant, its foreman or superintendent.</p>

Appeal, No. 138, Oct. T., 1914, by plaintiffs, from judgment of O. P. Lawrence Co., Dec. T., 1910, No. 96, refusing to take off nonsuit in case of Lena Darbrinsky, in her own right and in behalf of Walter Darbrinsky, Paul Darbrinsky, Richard Darbrinsky, Charles Darbrinsky, Alfred Darbrinsky, Andy Darbrinsky, Elsie Darbrinsky, and Fred Darbrinsky v. The Pennsylvania Company. Trespass to recover damages for the death of plaintiff’s husband.

<p>Appeal, No. 106, Oct. T., 1914, by defendants, from judgment of O. P. Allegheny Co.,. July T., 1912, No. 2931, on verdict for plaintiff, in case of Mortimer C. Miller v. Massachusetts Bonding & Insurance Company.</p> <p>Assumpsit on a policy of insurance. Before Evans, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $3,025.31 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 195, Oct. T., 1914, by Horace J. Miller, plaintiff, from decree of O. P. Allegheny Co., Oct T., 1909, No. 1139, discharging defendant’s person and property, respectively, from writs of attachment and sequestration in case of Adelaide Miller Blick and Horace J. Miller v. James M. Cockins.</p> <p>Bill in equity for a declaration of trust. Before Shaper, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The respondent having failed to comply with the decree of the court plaintiffs caused the issuance of writs of attachment and sequestration to enforce the order. Subsequently defendant filed an answer to the writs and the court discharged defendant’s person and property from the writs without specifically passing on plaintiff’s exceptions to respondent’s answer thereto. Horace J. Miller appealed.</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was the order of the court.</p>

<p>Contracts — Bonds — Coupons — Corporations — Presumption of payment — Burden of proof — Rebuttal of presumption.</p> <p>1. The presumption of payment of a bond arising from the lapse of twenty years does not extinguish the debt but places on the plaintiff the burden to show by a prima facie case that the debt has not been paid.</p> <p>2. Where an action against a corporation to recover the amount alleged to be due on interest coupons issued by the defendant, is not commenced until more than twenty years after their maturity, the fact that the coupons were in the possession of the payee and had not been surrendered to the defendant is admissible to rebut the presumption of payment, and is entitled to greater weight than it would be were the claim on an individual obligation.</p> <p>3. In an action by a personal representative of a decedent against a corporation to recover the amount evidenced by interest coupons accompanying a bond issue of the defendant, where suit is brought twenty-eight years after the maturity, it was error for the court to direct a verdict for the defendant on the ground that the presumption of payment had not been successfully rebutted, where the defendant company’s books failed to show that the coupons had ever been redeemed, and plaintiff offered evidence that the coupons were outstanding and had never been in the possession of the company since issue, and explained the delay in making demand by the fact that decedent had intrusted the coupons to counsel, who died without having returned them, and that decedent passed into a state of mental decline and had forgotten where the coupons were, and they were only obtained by plaintiff by an examination of counsel’s papers after his decease.</p>

<p>Jurisdiction, O. G. — Act of February 24, 1884, P. L. 78, Sec. 59 —Disputed title — Substantial dispute — Evidence—Act of May 25, 1887, P. L. 158 — Party dead — Practice, O. G. — Misjoinder of petitioners.</p> <p>1. Where in proceedings under the Act of February 24, 1834, P. L. 73, Section 59, providing a method for compelling the payment of legacies charged upon land, the testator’s title to the land at the time of his death is questioned, the Orphans’ Court may proceed with the investigation of the title so far as to inform itself whether the denial is made in good faith and whether a substantial dispute exists; and if it appears that the evidence is so insufficient that no issue is raised for submission to a jury, the. court rnay administer the relief prayed for, and it is not necessary that the petitioner’s right should first be settled at law.</p> <p>2. In such proceedings, where the devisee of the land charged with the legacy claimed to be the owner thereof by parol gift from his father, the devisor and record owner, he did not show a substantial dispute sufficient to oust the jurisdiction of the Orphans’ Court, where, while he proved that he had been in possession of the land in question for more than twenty-one years, it appeared by his own testimony that he entered by permission of his father, without any agreement or understanding that he was to become the owner; that subsequently a part of the land had been similarly occupied by his brother; that several years before his father’s death he had offered to purchase the property in question, thereby acknowledging Ms father’s ownership, and where it appeared that such improvements as he had erected were offset by the price which he had received from the sale of timber, brick and tile from the land, and especially where it appeared that the testimony of these facts was incompetent because of the death of one party to the controversy.</p> <p>3. In such case the improper joinder of the executor as petitioner will not invalidate the proceedings, where the proper legatees are also parties petitioners.</p>

<p>Appeal, No. 1, Oct. T., 1915, by defendant, from judgment of O. P. Butler Co., Sept. T., 1914, No. 141, from A. D. No. 10, March T., 1914, on verdict for plaintiff in case of Anna Lotz v. The Baltimore and Ohio Railroad Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Telford, P. J., specially presiding.</p> <p>There was evidence that a box car on a siding and flush with the street on which deceased was walking, obscured deceased’s view to the west, from which direction the train which killed deceased was moving at a speed of from 35 to 40 miles an hour, and that no warning of its approach was given. Other facts appear in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $3,500 and judgment thereon. Defendant appealed.</p>

<p>Appeal, No. 15, Oct. T., 1914, by defendant, from judgment of O. P. Washington Co., May T., 1913, No; 263, on verdict for plaintiff in case of Oscar G. Moyer v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Ruppel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $8,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury, answers to points, the refusal of the court to direct a verdict for defendant, and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 20, Oct. T., 1914, by defendant, from judgment of C. P. Washington Co., Feb. T., 1913, No. 99, on verdict for plaintiff in case of Charles F. McKinney and Nellie May McKinney v. The Baltimore and Ohio Railroad Company.</p> <p>Trespass to recover damages for the death of a minor child. Before Ruppel, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiffs, for $1,800 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant, and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 120, Oct. T., 1914, by plaintiff, from decree of C. P. Washington Co., No. 2195, in equity, refusing an injunction in case of E. G. Gillespie v. American Zinc & Chemical Company, a corporation.</p> <p>Bill in equity for an injunction. Before McIlvaine, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing refused the injunction and entered the decree set forth in the opinion of the Supreme Court. Plaintiff appealed.</p> <p>Errors assigned, were in dismissing exceptions to various findings of fact and conclusions of law of the trial judge, and the decree of the court.</p>

<p>Negligence — Personal injuries — Excessive damages — Refusal of new trial — Appeals—Act of May 20,1891, P. L. 101.</p> <p>The exceptional power conferred upon an appellate court by the Act of May 20, 1891, P. L. 101, to reverse the action of the lower court refusing a new trial, where it is alleged that the verdict was excessive, will be exercised only in cases of clear abuse of judicial discretion.</p>

<p>Appeal, No. 55, Oct. T., 1914, by defendant, from judgment of C. P. Beaver Co., June T., 1912, No. 231, on verdict for plaintiff in case of O. M. Bubb v. Pittsburgh, Harmony, Butler & New Castle Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Holt, P. J.</p> <p>Verdict for plaintiff for $12,000 which the court subsequently reduced to $10,000, and judgment thereon. Defendant appealed.</p> <p>Error assigned was iri refusing a new trial.</p>

<p>Municipalities- — Water companies — Acquisition of plant under Act of April 29, 187k, P• L. 78 — Mandamus to secure information as to value — Detailed information — Public Service Company Law of July 26, 1918, P. L. 187k-</p> <p>1. The first step in the acquisition of a plant of a water company by a borough under the Act of April 29, 1874, P. L. 73, is to make an investigation of the books, records and plant of the company tq ascertain the cost of the plant and the consideration which the municipality would be required to pay; and where access to the records is denied by the corporation, mandamus is the proper remedy. The company cannot be required to furnish detailed information at its own expense.</p> <p>2. In such case the owner of the water works is the proper party defendant, and the lessee of such works, even though it operates the same is improperly joined, where it appears from, the terms of the lease that the lessor and lessee had not merg’ed, and that the former maintained its corporate existence, a certain supervision over the business of the company, and shared in the net receipts, and that the lessee was required to account to the lessor company ; the awarding of a peremptory mandamus against the owner and lessee in such case is ¡a fatal error, and on appeal judgment must be entered generally for the defendants, as there can be no amendment of a peremptory writ.</p> <p>Mandamus — Mandamus Act of June 8,1898, P. L. 8Jf5 — Practice —Procedure—Judgment—Misjoinder of parties.</p> <p>' 3. Though the practice in mandamus is regulated by statute, yet it is a common law writ, and the rule prevails that there can be but one final judgment. Where a party is improperly joined and a judgment for a peremptory mandamus goes against the defendants generally, which is good as to the others, but erroneously entered against him, the proceedings fail.</p> <p>Public Service Company Act of July 26,1913, P. L. 1871¡. — Water companies.</p> <p>4. Proceedings for the acquisition of water works by a municipality, instituted since the Act of July 26, 1913, P. L. 1374, will be invalid unless they have been previously sanctioned by the Public Service Commission.</p>

<p>Street railways — Municipalities—Construction of line — Extension — Branch line — Contracts—Nonperformance—Legal obstacles —Penal bonds.</p> <p>1. It is only where a party by his contract creates a duty or charge upon himself, that he is bound to make it good notwithstanding prevented by inevitable necessity from performing. In all such cases he is held to the performance of his contract because he might have originally provided against it. When it is the law that creates the duty or charge, and the party is unable to perform it without fault on his part, the law excuses. The law never exacts performance of a contract whose performance would involve violation of law.</p> <p>2. A street railway company is not liable on a bond conditioned for the completion of its road on certain streets of a'municipality before a certain date, although practically no work has been done by the time specified, where it appears that other municipalities through which the company was chartered to construct its road have not consented thereto, and that consequently the company could not lawfully build its road.</p> <p>3. In such case, it is not material that such other municipalities are on a portion of the line authorized by an extension to the charter, and not by the original charter, where no work was done under the original charter until after the extension was authorized. Such extension is not a branch line, but a prolongation of the original line.</p>

<p>Negligence — Street railways — Wagon—Collision—Case for fury.</p> <p>1. Where the evidence tends to show that a street car ran into the rear of a wagon, being driven upon the track ahead of it, the case is for the jury in the absence of clear evidence of contributory negligence.</p> <p>2. In such case the driver of the wagon is entitled to warning, and to sufficient time to turn off the track into safety.</p>

<p>Negotiable instruments — Promissory notes — Collateral security —Application of collateral to other indebtedness — Bights of holder.</p> <p>Where a promissory note recites that collateral has been deposited as security for the payment of this or any other liability or liabilities “to the holder hereof now due or to become due or that may be hereafter contracted,” and authorizes the sale of the property pledged, on the nonpayment of any of the liabilities mentioned, and the application of the proceeds to the payment of “either or all of said above mentioned liabilities as the holder hereof shall deem proper,” a holder for value and before maturity by endorsement from the payee may apply the collateral to the payment of other obligations owing by the maker to him, as well as to the payment of the note,, and is not required upon tender of the amount of the note at maturity, to surrender the collateral as long as other obligations owing him by the maker remain unsatisfied.</p>

<p>Appeal, No. 228, Oct. T., 1914, by defendant, for judgment of O. P. Butler Co., March T., 1914, No. 25, on verdict for plaintiff in case of S. C. Morrison v. South Penn Oil Company.</p> <p>Trespass to recover damages for personal injuries. Before Reiber, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,750, and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant, and in refusing to enter judgment for defendant, n. o. v.</p>

<p>Contracts — Sales of personal property — Deceit—Voidable title —Conflict of laws — Bona fide purchaser for value — Notice of rescission — Evidence.</p> <p>1. A vendor, who has been induced by fraud to sell personal property to a vendee, may rescind the contract upon discovering the fraud, not only as against the original purchaser, but as against a transferee, who is not a bona fide purchaser for value.</p> <p>2. Where a contract for the sale of lumber was made by letters, one addressed to and received by the vendor at its place of business in Ohio, containing an offer, and the other mailed at the same place, accepting the offer, and the lumber was shipped from the same place, to points outside of Ohio, the contract is an Ohio contract and will be construed by the law of that State.</p> <p>3. Where in such case it was shown that the lumber sold by plaintiff to the fraudulent vendee had been resold to defendant in consideration of the cancellation of a pre-existing debt, and that under the law of Ohio such a consideration did not constitute defendant a bona fide purchaser for value, and that defendant had had notice that plaintiff claimed the lumber prior to a resale by it to a customer, a verdict and judgment for plaintiff was sustained.</p>

<p>Negligence — Survival of action — Death of plaintiff before trial —Act of April 15, 1851, Sec. 18, P. L. 669, Constitution of Pennsylvania, Article 8, Sec. 21.</p> <p>1. Where the plaintiff in an action for personal injuries dies before trial, his personal representatives may be substituted as party plaintiff and may prosecute the action for the benefit of the decedent’s estate.</p> <p>2. Section 18 of the Act of April 15, 1851, P. L. 669, relating to the survival of actions.for injuries resulting from negligence is not modified or annulled by Section 21 of Article 3, of the Constitution of Pennsylvania, providing that in such cases “the right of action shall survive and the general assembly shall prescribe for whose benefit such actions shall be prosecuted.”</p>

<p>Appeal, No. 204, Oct. T., 1914, by plaintiff, from judgment of C. P. Jefferson Go., Aug. T., 1913, No. 92, refusing to take off nonsuit in case of Jefferson County Gas Company v. United Natural Gas Company.</p> <p>Ejectment for lands in Jefferson County. Before Baldrige, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Negligence — Street railways — Passenger and carrier — Elements constituting relationship — Case for jury — Charge to jury — Inadequate instructions — Waiver.</p> <p>1. The undertaking on the part of a person to travel in a carrier’s conveyance and the acceptance by the carrier of the person for transportation are the necessary elements constituting the relationship of passenger and carrier and their existence may be implied from evidence that an intending passenger after being prevented by a motorman from boarding a summer car which was at a standstill, went to the side of the car which was closed to passengers by a guard rail, climbed over the guard rail so that his head and body were within the car, and said that ho was going to the car barn to report the motorman’s conduct, and that thereafter the car was started by the motorman.</p> <p>2. Where in such case there was further evidence that immediately after starting the car the motorman struck at the passenger, causing him to dodge the blow and strike his head against another car approaching from the opposite direction on another track, resulting in his fall to the street and death, the court did not err in submitting to the jury the right of such passenger’s mother to recover from the street railway for his death.</p> <p>3. The failure of the court to instruct the jury fully on questions of law affecting the case before them is not.ground for reversal where no additional instructions have been asked.</p>

<p>Appeal, No. 19, Oct. T., 1914, by defendant, from judgment of C. P. Allegheny Co., Feb. T., 1912, No. 238, on verdict for plaintiff in case of C. W. Ruse v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>From the record it appeared that at the time of the accident plaintiff was in good health, that he was 39 years of age and was earning a salary of $125 per month.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $10,571 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury.</p>

<p>Municipalities — Boroughs—Contracts—Execution of contract— Resolution — Advertisement—Approval by burgess — Act of April S, 1851, P. L. 820, Sec. 8 — Act of May 28,1898, P. L. 118, Sec. 8— Equity — Specific performance.</p> <p>Equity will not decree specific performance of an alleged contract between a borough and plaintiff for the grading by the ’borough of certain streets .abutting on plaintiff’s land where, though the plaintiff had executed the contract and performed all that was therein required of him, it appeared that the agreement was not signed by the burgess as directed by the resolution authorizing it and where it further appeared that such resolution was void because not approved by the burgess, in accordance with the provision of Section 3 of the Act of May 23, 1893, P. L. 113, or advertised as required by Section 3 of the Act of April 3, 1851, P. L. 320.</p>

Appeal, No. 26, Oct. T., 1914, by defendants, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1911, No. 18, on verdict for plaintiff in case of John D. Davis v. Webster Keasey and S. M. Jones. Assumpsit for commissions alleged to be due under an oral contract. Before Davis, J. The facts appear in the opinion of the Supreme Court. Verdict for plaintiff for $1,708.50 and judgment thereon. Defendants appealed.

<p>Negligence — Electric wires — Insulation—Wires out of reach— Proximate cause.</p> <p>An electric company maintaining heavily charged wires twenty-nine feet from the ground and twelve feet from a building cannot reasonably be held to anticipate that the janitor of such building in attempting to hoist a flag on a pole thereon by means of a copper wire, will manipulate the wire from his position on the ground in such manner as to bring it in close proximity to the electric wires, resulting in a shock, causing his death.</p>

<p>Distillers — Certificates for whiskey — Duplicate certificates — Innocent holders — Respective rights.</p> <p>Certificates issued by a distiller for whiskey stored in his own warehouse are not warehouse receipts within the meaning of Acts of Sept. 24, 1866 (1867), P. L. 1363, and Marfeh 31, 1909, P. L. 19, relating to warehousemen; title to whiskey represented by certificates can be transferred by the distiller only when there is a completed contract between him and the purchaser evidenced by payment of the consideration by the purchaser and delivery of the certificate to him; as between two innocent holders of certificates for the same whiskey the party who first paid the consideration therefor to the distiller will be entitled as against the bona fide holder of prior certificates issued without consideration, but purchased after the certificates of later date had been issued for value.</p>

<p>Beal property — Title to land — Purchaser at sheriff sales — Besulting trust — Insufficient averments — Writ of possession — Act of April 20, 1905, P. L. 289.</p> <p>The grantee of the purchaser of land sold under a mortgage in foreclosure proceedings will be entitled to possession as against the mortgagor where it appears that the purchaser, who was a guardian of minors, took the mortgage as security for a debt owing to his ward’s estate, and whore although the mortgagor attempts to establish that such guardian took title to the land under an arrangement that upon payment of the mortgage debt the land should be reconyeyed to the mortgagor, he does not aver that the land was purchased at the sheriff’s sale with his money or that the guardian had obtained authority from the Orphans’ Court to make the agreement relied on, particularly where the agreement was not made with the guardian personally but with an attorney not averred to have been expressly authorized to enter into such an agreement, and where such facts appeared in a petition and answer filed under the Act of April 20, 1905, P. L. 239, the court did not err in refusing a jury trial.</p>

<p>Appeals, Nos. 88 and 89, Oct. T., 1914, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1911, No. 498, on verdict for P. Rapaport, plaintiff, in case of P. Rapaport and Israel Rapaport, by his next friend and father, P. Rapaport, v. The Pittsburgh Railways Company. Before Fell, C. J., Brown, Potter, Elkin and Moschzisker, JJ. Reversed.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for P. Rapaport for $2,000 and for Israel Rapaport, a minor, for $2,500 and judgment thereon. Defendant appealed. The appeal from the judgment entered in favor of Israel Rapaport, the minor, was nonprossed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

Appeal, No. 90, Oct. T., 1914, by defendant, from judgment of O. P. Allegheny Co., Noy. T., 1911, No. 499, on verdict for plaintiff in case of L. A. Kramer and Helen S. Kramer, a minor by her next friend and father, L. A. Kramer v. Pittsburgh Railways Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 92, Oct. T., 1914, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1912, No. 1998, on verdict for defendant, in case of Potter Title & Trust Company, Administrator of the Estate of Lawrence P. Mangan, Deceased, v. Richard J. Quilter, Executor of the Estate of Bridget E. Mangan, Deceased.</p> <p>Scire facias sur mortgage. Before Carnahan, J.</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 rulings on evidence referred to in the opinion of the Supreme Court.</p>

<p>Decedents’ estates — Executors and administrators — Stock—Failure to convert — Loss—Surcharge—Improper surcharge.</p> <p>Executors who iu good faith have retained bank stock left by testator and have subsequently accepted in exchange therefor other bank stock issued in pursuance of a consolidation plan, will not be surcharged for the amount at which the testator’s stock could have been sold although the consolidated bank subsequently failed and the new stock became worthless, where it appears that shortly after testator’s death a financial panic rendered impossible the sale of the original stock at prices approximating its estimated value; that the consolidation was approved by the comptroller of the currency and that the dividends which the executors received were required by them to properly administer the estate and to pay legacies; under such circumstances it cannot be said that the loss was due to the failure of the executors to exercise that common skill, prudence and caution, which the law requires.</p>

<p>Appeal, No. 95, Oct. T., 1914, by defendant, from judgment of C. P. Allegheny Co., June T., 1911, No. 642, on verdict for plaintiff in case of Edward J. Kent v. Florence M. Fishblate.</p> <p>Assumpsit on a parol contract for the payment of counsel fees. Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $4,600 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury.</p>

<p>Wills — Revocation by mutilation — Republication.</p> <p>A will which has been revoked by mutilation may afterwards be republished, and where a jury have found that after tearing his signature from his will and after tearing off a portion of the codicil animo revocandi, testator pasted a piece of paper in the place of that torn off and rewrote his signature and the missing words of the codicil, the will and codicil were properly held to be republished and were properly admitted to probate.</p>

<p>Negotiable instruments — Promissory notes — Defenses—Failure of consideration — Evidence—Relevancy.</p> <p>1. In an action on promissory notes given by defendant in renewal of other notes which it contended were without consideration where there was evidence that at defendant’s request plaintiff had purchased a machine for defendant for shipment to defendant’s principal and that defendant gave the original notes to plaintiff in payment therefor the court made no error in submitting the case to the jury.</p> <p>2. In such case copies of advertisements describing defendant as special agent for the sale of a certain other appliance had no bearing upon the defense that defendant was plaintifE’s agent for the sale of the machine and the exclusion of such evidence was not error.</p>

<p>Appeal, No. 139, Oct. T., 1914, by Lauretta R. Mayes, from decree of O. C. Allegheny Co., Nov. T., 1912, No. 181, dismissing petition to charge legacy on land in Estate of John A. Wood, Deceased.</p> <p>Petition to require payment of a legacy charged on land. Before Trimble, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower. court dismissed the petition. Petitioner appealed.</p> <p>Errors assigned, among others, were various rulings on evidence and in dismissing the petition.</p>

<p>Appeal, No. 140, Oct. T., 1914, by Wilson-Snyder Manufacturing Co., from decree of C. P. Allegheny Co., April T., 1913, No. 202, dismissing exceptions to report of viewers, in the Matter of the Petition of the City of Pittsburgh for the Appointment of Viewers to assess the damages occasioned to properties by the change of grade of and regrading, repaving and recurbing and otherwise improving of Second avenue, from Ross street to a point 1,600 feet eastwardly therefrom; Try Way from Second avenue to Greenough street; Gasoline street from Second avenue to Greenough street; Iron alley from Second avenue to Greenough street and Brewery street from Second avenue to Black alley, First Ward.</p> <p>Exceptions to report of board of viewers in change of grade proceedings. Before Shafer, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The board of viewers decided that Wilson-Snyder Manufacturing Company was not entitled to recover damages. Exceptions to the findings of fact and conclusion of law of the board of viewers were dismissed by the court. Wilson-Snyder Manufacturing Company appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Practice, Supreme Court — Equity—Findings of fact — Appeal.</p> <p>1. Findings of fact by a chancellor which necessarily involved credibility of witnesses and the weight to be given their testimony have the force and effect of the verdict of a jury and will not be disturbed if there be testimony to sustain them.</p> <p>2. In a suit in equity brought by an agent to recover his proportion of profits accruing upon a certain lease where another agent claimed an interest in such profits under an agreement between the two agents, findings of fact depending upon the credibility of witnesses and supported by abundant evidence to tbe effect that the lease in controversy was not covered by the agreement will be sustained.</p>

<p>Street railways — Change of grade of street — Liability for damages to abutting property — Evidence.</p> <p>In an action by a property owner against a street railway company to recover damages caused by the lowering by the defendant of the street in front of plaintiff’s property, it appeared that the ordinance which gave the railway company the right to construct its road upon the street was conditioned that the road should conform to the established grade, but that when the line of the plaintiff’s abutting property was reached the company cut down the grade of the street, .and it further appeared that after the company started work on the street the borough by ordinance changed the grade, and the excavation in front of plaintiff’s property was just what was required under the ordinance. The plaintiff offered to show by a witness when it was that the work was done before plaintiff’s house, which offer was refused. Upon appeal, held, error, as this evidence was material, since, if the work was done by the defendant company subsequent to the adoption of the ordinance the plaintiff could look only to the borough for compensation for any damage sustained, but if it was done before, then the defendant company was answerable for the injury.</p>

<p>Statute of limitations — Change of grade proceedings — Permanent injury — Bar of statute. '</p> <p>The Statute of Limitations of March 27, 1713, 1 Sm. L. 76, is ■an absolute bar to the recovery of damages for injury to land caused by the change of grade of a street in proceedings instituted more than six years after the physical change was made. Such injuries are not, like a nuisance, temporary in character, but permanent, and one action only may be brought therefor; they do not give rise to successive actions for damages while the new grade is maintained, on the theory that it is a continuing nuisance.</p> <p>Hannum v. Borough of West Chester, 63 Pa. 475, distinguished.</p>

<p>Corporations — Foreign corporations — Business within the State —Failure to register — Acts of April 22, 187k, P- L- 108, and June 1,1889, P. L. W), Section 19.</p> <p>1. A foreign corporation whose principal office is located and whose capital is invested without the State and which does no business of any kind within the State other than negotiating and performing contracts for the furnishing and setting up of fixtures manufactured without the State is not doing business within the State within the meaning of the Acts of April 22, 1874, P. L. 108, and June 1, 1889, P. L. 420, Section 19, relating to foreign corporations and without having registered may bring actions in the courts of this State on such contracts made and performed here.</p> <p>Contracts — Building contracts — Subcontractors — Penalty for delay — C onstruciion — Intention.</p> <p>2. A contract between a contractor and a subcontractor for the furnishing and setting up of ornamental fixtures by the latter, and providing that the contractor upon the subcontractor's failure to perform may complete the work and that the subcontractor in such case shall pay a penalty for every day’s delay “the......penalty......remain in force for......every day’s delay after Nov. 15......” will not require a subcontractor to pay the penalty for delay after November 15, where he has satisfactorily completed his contract, the intention of the contract being that the subcontractor should only be liable for a penalty where the contractor is required to complete the work.</p>

<p>' Partnership — Limited partnership — General partnership — Partner’s interest in real estate — Personal property — Gonveyance by personal representatives — Validity.</p> <p>1. Where real estate is held by a limited partnership, the interest of the partners therein is personal property, and upon the death of one of the partners, passes to his personal representatives.</p> <p>2. Where, at the expiration of the term of a limited partnership, the business is, by agreement, conducted as a general partnership, although the real estate continues to be held in the name of the limited partnership, the same rule applies, and a conveyance by the personal representatives of .a deceased partner, of their decedent’s interest in the firm assets, will operate to convey his interest in the real estate of the partnership.</p>

<p>Equity practice — Appeals—Remittitur—Amendment of bill— Allowance.</p> <p>Where a decree for plaintiff in a proceeding in equity has been reversed by the Supreme Court with a procedendo, and direction that he be permitted to amend the bill by making an indispensable party a defendant and that if the amendment be not made within thirty days from the filing of the remittitur the bill shall be dismissed, and after such party was made a joint defendant the bill was found defective in substance on demurrer, the granting of leave to plaintiff to further amend within ten days is not violative of the letter or spirit of the decree of the Supreme Court.</p>

<p>Appeal, No. 190, Oct. T., 1914, by plaintiffs, from decree of C. P. Allegheny Co., July T., 1914, No. 457, in equity, refusing an injunction in case of James H. Hamnett, Cooke Bausman, Donald C. McKee, R. J. Hayden and Mollie S. Lewis v. John E. Born.</p> <p>Bill in equity to restrain an alleged violation of a building restriction. Before Reid, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court, on final hearing, dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned} among others, was the decree of the court.</p>

<p>Negligence — Mines and mining — Master and servant — Employee —Operation of motor — Walking on tracks — Duty to look — Contributory negligence — Judgment non obstante veredicto.</p> <p>1. It is the duty of an. employee working in a mine to look before going in a place of danger. Where he steps in front of a moving car without looking for the danger that immediately confronted him, he is guilty of contributory negligence unless there is something in the circumstances to absolve him from the duty to look.</p> <p>2. In an action against a mining company to recover damages for personal injuries sustained by a seventeen year old boy who had been employed in defendant’s mine for a period of a year, the court did not err in holding the plaintiff guilty of contributory negligence and in entering judgment for defendant non obstante veredicto, where it appeared that on the evening of the accident the plaintiff and two other workmen were leaving the mine by way of a parting on which were located two tracks, owing to an obstruction in the traveling-way used as a usual means of exit; that while they were walking along, two trains, one on each track, were started in opposite directions, and the plaintiff and his companions were compelled to stop between the tracks in a space of two feet where they remained standing until one of the trains had passed, there being apparently no other place of safety; that immediately on the passing of the last ear of the out-bound train, according to the plaintiff’s testimony, he stepped upon the track upon which the train had just passed and was instantly struck by a motor car which was being hauled with the train, and which was connected with the last car by a rope; that the driver, who sat on the front end of the motor, had a lighted lamp in his cap, and that the plaintiff and his two companions who stood beside him, had lighted lamps in their caps, furnishing sufficient light for the plaintiff to have seen the approaching ear had he stopped to look.</p>

<p>Appeal, No. 153, Oct. T., 1914, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1913, No. 121, on verdict for plaintiff in case of Jacob H. Francis, father and next friend of Howard Walter Francis, a minor, v. Baltimore & Ohio Railroad Company, Lessee and Operator of the Pittsburgh & Connellsville Railroad.</p> <p>Trespass to recover damages for personal injuries. Before Ruppel, P. J.</p> <p>The opinion of the Supreme Court states the facts. Verdict for plaintiff for $1,950 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, were in refusing' to direct' a verdict for defendant, and in refusing to enter judgment for defendant n. o. v.</p>

<p>Negligence — Automobiles—Lights—Instruction to jury — Act of April 27, 1909, P. L. 265.</p> <p>In the trial of an action to recover damages for personal injuries resulting from the alleged negligent operation of defendant’s automobile, it is not error for the court to instruct the jury that it is negligence to drive an automobile at a very rapid rate at night, without lights to give notice that the automobile is coming, and to enable the driver to see the road ahead. Such instruction is not in conflict with the Act of April 27,1909, P. L. 265, Section 12, which requires two side lights, visible for 200 feet ahead.</p>

<p>Appeal, No. 161, Oct. T., 1914, by defendant, from judgment of C. P. Cambria Co., March T., 1910, No. 71, on verdict for plaintiff, in case of Sherman M. Smith v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Stephens, P. J.</p> <p>The facts appear in Smith v. Pennsylvania R. R. Co., 236 Pa. 359, and in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $6,151, and the judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were, rulings on evidence.</p>

<p>Negligence — Master and servant — Mines and mining — Contributory negligence — Reliance on superior officer — Damages—Instructions to jury.</p> <p>1. In an action to recover damages for personal injuries sustained by an employee at work in a mine, in consequence of the fall upon him of rock, forming part of the roof of the mine heading, the question of the contributory negligence of the plaintiff could not be withdrawn from the jury, where it appeared that, although he had some reason to apprehend the danger and had complained of it to the superintendent, the latter after testing the roof with a pick, assured the plaintiff that it was s.afe and instructed him to proceed with his work. A servant is not called upon to set up his own unaided judgment against that of his superiors, and he may under some circumstances rely upon their advice and still more upon their orders, notwithstanding misgivings of his own.</p> <p>2. An instruction with respect to the measure of damages which, on consideration of the whole charge, is reasonably correct, will not be held reversible error because in one sentence of it the court seemed to say that plaintiff would be entitled to recover wages which he would have earned if he had not been injured rather than the present worth thereof.</p>

<p>Appeal, No. 152, Oct. T., 1914, by Amanda Reed, from decree of O. O. Allegheny Co., Dec. T., 1913, No. 6, dismissing exceptions to adjudication in the Estate of Hugh A. Reed, Deceased.</p> <p>Exceptions to adjudication. Before Trimble, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court dismissed the exceptions. Amanda Reed appealed.</p> <p>Error assigned was in dismissing exceptions.</p>

<p>Equity — Equity jurisdiction — Husband and wife — Suit to recover separate property — Equity practice — Gross-bill—Demurrer— Testimony — Proof of fact of desertion.</p> <p>1. Even before the Act of March 27, 1913, P. L. 14, married persons might sue one another in equity to protect and gain possession of their separate property, and this notwithstanding the provision of Section 3 of the Act of June 8,1893, P. L. 344.</p> <p>2. While a cross-bill in equity may properly introduce new facts and issues, they must relate to the subject matter of the original bill and must be so closely connected therewith as to constitute the cross-bill a mere auxiliary of the original or & dependency thereon; questions which are entirely distinct from those presented in the original bill cannot be introduced by a cross-bill, although such questions be connected with the subject matter of the original bill.</p> <p>8. In a proceeding in equity by a husband against his wife to compel the latter to permit him to remove certain goods which he claimed .as his own from their common domicile, which belonged to the defendant, from which he desired to move to a house of his own, to which his wife had declined an invitation to accompany him, an answer was filed in which defendant alleged ownership of the property in herself by gift from the plaintiff, and also cruel and barbarous treatment, and the husband’s failure to perform certain agreements with her. Subsequently the defendant filed a cross-bill in which she asked that a decree be made against the plaintiff for the enforcement of his alleged undertakings. A demurrer to the cross-bill was sustained and after trial upon the original bill the court found upon sufficient evidence that there was no gift of the property in question to the wife, and entered a decree awarding its possession to the husband. Held, that equity had jurisdiction of the case and that the cross-bill was properly dismissed.</p> <p>4. In such case, testimony on behalf of the defendant tending to prove that plaintiff had deserted the defendant and was guilty of cruel treatment and that his offer of a new abode was not made in good faith, was properly excluded as being immaterial.</p>

<p>Practice, G. P. — Payment into court — Mechanics’ liens — Act of April 22, 190S, P. L. 255 — Payment under act — Return of payment — Estoppel.</p> <p>1. Where a fund alleged to be duo a contractor was paid into court by a school district under a provision of the mechanics’ lien Act of April 22, 1903, P. L. 255, which was subsequently declared unconstitutional by the Supreme Court, the lower court erred in refusing the return of the fund to the school district and in ordering it paid into the hands of the trustee in bankruptcy of the contractor.</p> <p>2. In such case the school district, by the payment of such fund into court and proceeding under the act in question, is not es-topped from asserting its claim against the fund for damages alleged to have been suffered prior to such payment into court through the failure of the contractor to complete the contract, where the statute of limitation has not run, where no one has changed his position for the worse since or because the proceeding was taken, and where the court below h.as not thereby been led to adopt a particular course from which it could not properly recede.</p> <p>3. While under some circumstances a party who has availed himself of the benefits of an unconstitutional piece of legislation may be estopped from asserting its invalidity, even in such cases the usual rule is applied that an estoppel will never bo given effect when a refusal so to do will not prejudice the one who asserts the estoppel.</p>

<p>Equity — Trusts and trustees — Findings of fact — Evidence—Appeals.</p> <p>A hill filed by a grantee of land by a conveyance in fee simple to recover from the heirs of the grantor losses alleged to have been sustained while acting as trustee of the legal title for the grantor’s benefit is properly dismissed where there is a finding of fact, sustained by the evidence, that no trust, express or implied, was established.</p>

<p>Appeal, No. 162, Oct. T., 1914, from decree of C. P. Allegheny Co., Jan. T., 1913, No. 1929, in equity, dismissing bill in equity for discovery and for an accounting in case of Bose Allen Hathaway, Administratrix of the Estate of Frank H. Hathaway, deceased, v. John Newell.</p> <p>Bill in equity for discovery and for an accounting derived from the operation and sale of an oil and gas lease. Before Haymaker, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

Appeal, No. 141, Oct. T., 1914, from judgment of O. P. Allegheny Co., Nov. T., 1911, No. 246, on verdict for plaintiff in case of Charles F. Walthers v. The Borough of McKees Rocks. Assumpsit to recover balance of contract price for building a garbage incinerator. Before Macfarlane, J. Prom the record it appears that Charles F. Walthers entered into a contract on April 18, 1911, with the Borough of McKees Rocks to construct a garbage incinerator for $4,600.

<p>Negligence — Road law — Townships—Embankment beside road— Absence of barrier — Stumbling horse — Fall over embankment— Contract with boulevard company — Liability to repair — Primary liability.</p> <p>1. Those in control of public roads are charged with the duty of taking reasonable ■ care to erect proper barriers at dangerous places to guard against injuries which may arise from the well-known habits of horses.</p> <p>2. The fact that the supervisors of a township have authorized a boulevard company to use a township road as part of its boulevard does not relieve the township from its primary liability to keep the road in ¡a reasonably safe condition for public travel.</p> <p>3. In an action against a township to recover damages for personal injuries, the case is for the jury and a verdict for the plaintiff will be sustained where it appears that while plaintiff was driving a team along a road in the defendant township one of the horses stumbled and pulled its mate and the wagon over an unguarded and steep embankment directly on the side of the road, precipitating the plaintiff thereover; that the bed of the highway was occupied by two street car tracks, leaving but three or four inches between the outside rail and the edge of the road; that plaintiff was driving slowly down grade with a good hold on the lines and his foot on the brake; that the horse was gentle and not in the habit of stumbling; that the driver was on the proper side of the road according to the direction in which he was going, and testified that he considered it unsafe at that particular place to drive on the other side owing to the fact that at any time a car was liable to come down toward him on that track around a sharp curve seventy feet beyond the point of the accident; that the exact cause for the stumble of the horse did not appear other than that there was some break or unevenness in the surface of the road.</p>

<p>Appeal, No. 130, Oct. T., 1914, by The Monongahela River Consolidated Coal & Coke Co., a corporation, from judgment of C. P. Allegheny Co., Dec. T., 1910, No. 747, on verdict for plaintiff; in case of John J. Watson v. The Monongahela River Consolidated Coal & Coke Company, a corporation.</p> <p>Trespass to recover damages for personal injuries. Before Frazer, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff: for $2,500, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury, answers to points, and the refusal of the court to direct a verdict for defendant and to enter judgment for the defendant non obstante veredicto.</p>

<p>Guardian and ward — Investments—Purchase of real property— Good faith- — Surcharge.</p> <p>1. Ordinarily a guardian is relieved from liability for investing his ward’s money in real estate only after having obtained leave of court. He is justified in investing without leave of court only where it becomes necessary to avoid a loss which would otherwise certainly result to the estate he has in charge, and in every such case the burden is on the guardian to show that the exigency existed.</p> <p>2. Where a guardian has invested his ward’s money in a mortgage, under circumstances which do not impugn his good faith, but just before his ward becomes of age forecloses the mortgage, and purchases the property for her account, without leave of court, and without consulting her, and fails to exhibit any reason why it was necessary to make such purchase, the Orphans’ Court does not err in refusing to allow him credit for the amount so expended, and in requiring him to take the property and to pay the ward the amount of her money invested therein.</p>

<p>Appeals, Nos. 173 and 174, Oct. T., 1914, by plaintiffs, from decrees of O. P. Allegheny Co., July T., 1913, Nos. 302 and 454, dismissing bills in equity for injunction and accounting in cases of Carl C. Law v. First National Bank of Pittsburgh, and R. M. McConnell, and C. C. Murray, Receiver of First-Second National Bank; and George A. Martin v. First National Bank of Pittsburgh, and R. M. McConnell, and C. C. Murray, Receiver of First-Second National Bank.</p> <p>Bill in equity for an injunction to restrain the sale of stocks, and for a delivery thereof and an accounting. Before Macearlane, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The lower court entered a decree dismissing the bill at the cost of the plaintiff in each case. The plaintiff in each case appealed.</p> <p>Error assigned, in each case, among others, was the decree of the court.</p>

<p>Appeal, No. 142, Oct. T., 1914, by Emma I. Eose and Annie L. Moore, from decree of O. C. Allegheny Co., June T., 1913, No. 247, dismissing petition for payment of legacies in Estate of Margaret C. Loughrey, deceased.</p> <p>Petition to compel payment of legacies alleged to be charged on land under a will. Before Trimble, J.</p> <p>The Guarantee Title and Trust Company mortgagee of the land in question, was made a joint defendant. Further facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the petition. Emma I. Eose qnd Annie L. Moore, appealed.</p> <p>Error assigned, among others, was in dismissing the petition.</p>

Appeal, No. 185, Oct, T., 1914, by defendant, from judgment of O. P. Allegheny Co., April T., 1913, No. 239, on verdict for plaintiff in case of George H. Hamilton v. David P. Hopkins. Trespass to recover damage for personal injuries. Before Carnahan, J. The facts appear by the opinion of the Supreme Court. Verdict for plaintiff for $3,000 and judgment thereon. Defendant appealed.

<p>Practice, O. P. — Affidavit of defense — Affidavit insufficient in part — Rule for judgment — Appeals.</p> <p>1. The Supreme Court will reverse an order discharging a rule, for judgment for want of a sufficient affidavit of defense, only in cases free from doubt.</p> <p>2. In an action for the price of coke sold and delivered the refusal of the lower court to enter judgment for plaintiff for part of its claim as to which the affidavit of defense was alleged to be insufficient, was not reversible error, where although the delivery of the coke was admitted, it was doubtful from the pleadings whether the deliveries had not been under an entire contract which had never been fully performed by plaintiff, and whether defendants had not received the coke as agents for sale rather than as purchasers, and where the effect of a subsequent parol contract upon the transaction could only be explained by oral testimony.</p>

<p>Appeal, No. 112, Oct. T., 1914, from judgment of C. P. Allegheny Co., Oct. T., 191.2, No. 2564, for defendants, non obstante veredicto in case of W. J. Black and John G. Sell, Partners, trading as W. J. Black & Company v. J. Albert Hartrick and Lillian Brant Hartrick, Owners or Reputed Owners, and Thomas O. Reese and Charles McC. Reese, formerly Partners Doing Business as T. O. Reese & Brother, Contractors, for Whom Individually and as Partners, the Commonwealth Trust Company is Trustee in Bankruptcy.</p> <p>Scire facias sur mechanics’ lien. Before Evans, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for the plaintiffs for $2,179.53. The court entered judgment for the defendants non obstante veredicto. Plaintiffs appealed.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 212, Oct. T., 1914, by Kathleen T. Harper, from the decree of C. P. Allegheny Co., July T., 1913, No. 140, in equity, dismissing exceptions to report of auditor in re account of Commonwealth Trust Company of Pittsburgh, Trustee under Deed of Orlando M. Harper and Kathleen T. Harper, his wife.</p> <p>Account of Commonwealth Trust Company of Pittsburgh, trustee.</p> <p>Exceptions to report of distribution of J. Houston Johnston, Esq., auditor.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. Kathleen T. Harper appealed.</p> <p>Error assigned, among others, was in dismissing exception to auditor’s report awarding portion of the trust fund to Annie E. Copeland.</p>

<p>Appeal, No. 219, Oct. T., 1914, by Annie E. Copeland, from decree of C. P. Allegheny Co., July T., 1913, No. 140, in equity, dismissing exceptions to report of auditor in re account of Commonwealth Trust Company of Pittsburgh, Trustee under deed of Orlando M. Harper and Kathleen T. Harper, his wife.</p> <p>Account of Commonwealth Trust Company of Pittsburgh, trustee.</p> <p>Exception to report of distribution of J. Houston Johnston, auditor.</p> <p>The facts appear by the opinion of the Supreme Court and in the report In re Account of Commonwealth Trust Company of Pittsburgh, Trustee (No. 1), 217 Pa. 508.</p> <p>The court dismissed the exceptions. Annie E. Copeland appealed.</p> <p>Error assigned was in dismissing exceptions to auditor’s report..</p>

<p>Appeals, Nos. 178, 179, 180 and 181, Oct. T., 1914, by defendant, from judgments of C. P. Allegheny Co., Jan. T., 1913, Nos. 1726, 1435, 1702 and First Term, 1909, No. 312, on verdict for plaintiffs in cases of Farmers & Merchants Bank of West Newton, Pa., a Corporation, v. Alice R. Donnelly; George D. Harter Bank, of Canton, Ohio, a Corporation, v. Alice R. Donnelly; First National Bank of Punxsutawney, now for use of Punxsutawney National Bank, v. Alice R. Donnelly, and Diamond National Bank, a Corporation, v. Alice R. Donnelly.</p> <p>Assumpsit on promissory notes. Before Swearingen, J., and Siiaeer, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The Farmers & Merchants Bank of West Newton, the George D. Harter Bank and the Punxsutawney National Bank recovered verdicts of $6,925 each. The Diamond National Bank recovered a verdict of $6,352.50. Judgment was entered on the verdicts.</p> <p>Errors assigned, among others, were various rulings on evidence.</p>

<p>Criminal law — Murder—First degree — Intent—Premeditation— Deliberation — “Lying in wait” — Trials—Charge to jury.</p> <p>On the trial of an indictment for murder where it appeared that the victim, an eighteen years old girl, was employed in a restaurant; that before leaving the restaurant on the evening of the murder she held a conversation with the accused, who followed her and an escort to the theatre; that the accused went inside and a few minutes later left and returned to the restaurant; that when deceased returned she found him sitting at a table and told him to cease bothering her with his attentions, whereupon he arose, drew a revolver from his pocket and shot her twice in the neck, causing her death two days later; and that defendant told two witnesses that he had returned from the theatre to the restaurant for the purpose of awaiting her return and shooting her, the defendant cannot complain of the court’s definition of “lying in wait,” where the jury were given clearly to understand that the Commonwealth could not convict defendant of murder of the first degree unless they found an intent on his part at the time of the killing to take life, of which intent his mind was fully conscious, and for the accomplishment of his purpose there had been sufficient time to lay the plan and select the weapon to carry it into execution; and where there was no other error in the charge of the court, a verdict and judgment of guilty of murder of the first degree were sustained.</p>

<p>Contracts — Municipalities — Municipal ordinances — Uncertain terms — Oral evidence — Case for jury.</p> <p>In’an action by a gas company against a municipality to recover for gas furnished a municipal hospital under a contract, where it appeared that the ordinance which granted plaintiff’s franchise and which was prior in date to the contract provided that the gas company should “furnish to the city......free of cost and expense, all the natural gas necessary for fuel for the buildings of the police, fire, markets and .city property departments......” the right of the plaintiff to recover under the contract did not exist if the municipal hospital was included in the “city property departments,” referred to in the ordinance, but ¡as the connection between the municipal hospital and the city property departments was not apparent and could only be explained by oral testimony, it was error for the court to decide as a matter of law, that the hospital was a city property department, entitled to be furnished gas free of cost.</p>

<p>Appeal, No. 182, Oct. T., 1914, by plaintiff, from judgment of O. P. Allegheny Co., Oct. T., 1912, No. 2337, refusing to take off compulsory non-suit in case of Edward G. Lewis v. C. H. Wood.</p> <p>Trespass to recover damages for personal injuries. Before Frazer, P. 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 non-suit.</p>

<p>Appeal, No. 33, Oct. T., 1914, by plaintiffs, from order of C. P. Cambria Co., Dec. T., 1913, Nos. 120 and 18, striking off judgment, and quashing writ of habere facias possessionem respectively, in case of Homer D. Williams and John F. Williams, for use of George Panagotacos, v. A. Notopolos.</p> <p>Amicable ejectment for the recovery of leased premises.</p> <p>Rule to strike off a confessed judgment and to quash a writ of habere facias possessionem. Before Stevens, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court ordered the judgment to be stricken from the record, quashed the writ of habere facias possessionem and directed that the sheriff make restitution of the possession of the premises to the judgment defendant. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 49, Oct. T., 1914, by plaintiffs, from decree of C. P. Somerset Co., Equity Docket, 1912, No. 11, refusing an injunction in case of Margaret J. Phillips, Katharine M. Clifford and Mary L. Evans v. the Connellsville and State Line Railway Company.</p> <p>Bill in equity for an injunction. Before Ruppel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court, on final hearing, refused the injunction and dismissed the bill. Plaintiffs 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. 216, Oct. T., 1914, by petitioner, from order of C. P. Somerset Co., Sept. T., 1914, No. 324, refusing to approve bond filed in condemnation proceedings in case of Connellsville and State Line Railway Company v. Markleton Hotel Company. Petition for approval of bond filed by a railroad company in condemnation proceedings. Before Ruppel, P. J. Tbe opinion of tbe Supreme Court states tbe facts. Tbe court refused to approve the bond. Petitioner appealed.

Appeal, No. 60, Oct. T., 1914, by defendants, from judgment of C. P. Armstrong Co., Dec. T., 1912, No. 94, on verdict for plaintiffs in case of Harry Nulton and George Nulton v. Edward M. Nulton and William N. Nulton. Ejectment to recover lands in Armstrong County. Before Painter, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiffs for the land in suit and judgment thereon. Defendants appealed.

Appeal, No. 214, Oct. T., 1914, by plaintiff, from judgment of O. P. Westmoreland Co., Feb. T., 1914, No. 128, refusing mandamus in case of C. H. Bolton v. William MeKelvey, Horace Knight and David Errett, Supervisors of the Township of Sewiekley, and the Township of Sewickley. Petition for mandamus. Before McConnell, J. The opinion of the Supreme Court states the facts. The plaintiff demurred to the defendant’s answer.

<p>Appeal, No. 39, Oct. T., 1914, by plaintiffs, from decree of C. P. Lawrence Co., March T., 1908, No. 4, in equity dismissing bill in equity for partition and for accounting in case of Polly Permelia Cooley, Margaret Shoaff, Silveretta Eamsey, Elizabeth M. Houston, Delilah Ann Brown and Hamilton Clark v. William .1). Houston, John Clark, George Clark and Eliza Trask.</p> <p>Bill in equity for partition. Before Porter, P. J.</p> <p>The facts appear in Cooley v. Houston, 229 Pa. 495, and in the opinion of the Supreme Court.</p> <p>The court dismissed the hill. Plaintiffs appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Beal property — Lunatics—Sale of real estate — Price Act — Income — Personal property.</p> <p>The unexpended income from real estate of a lunatic together with the income received from the invested proceeds derived from the sale of such real estate under the Price Act of April 18, 1853, P. L. 503, is to he treated as personalty upon the death of the lunatic and is properly awarded to her administrator.</p>

<p>Appeal, No. 3, Oct. T., 1914, by defendant, from judgment of C. P. Allegheny Co., Nov. T., 1910, No. 514, on verdict for plaintiff in case of Viola Mack v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Haymaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $6,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n. o. v. and instructions to the jury relating to the measure of damages.</p>

<p>Eminent domain — Condemnation of land — Damages—Measure of damages.</p> <p>1. While in condemnation proceedings the owner of land condemned is entitled to have the jury consider the value of the property for any and every purpose for which it may be used, and to have the damages assessed upon a basis of the most valuable use to which the property may be adapted, he cannot show its value by proving that the land could be divided into lots and what the lots would be separately worth; and the testimony of experts as to the value of such land, based exclusively upon their estimate of the number of lots into which the land could be divided ¡and the value of each, should be stricken out, and the refusal of the court so to rule is reversible error.</p> <p>2. In showing the character of the land condemned plaintiff may show that it contained minerals by evidence that in drilling the property, for oil, veins of coal had been discovered; the sinking of a shaft, or other development, need not be shown.</p>