Volume 248 — Pennsylvania State Reports

Appeal, No. 231, Oct. T., 1914, by plaintiff, from order of O. P. Allegheny Co., Oct. T., 1914, No. 388, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Margaret Hays, now for use of J. K. Anderson v. Thomas A. Anderson, with notice to Allan Kirkpatrick, Jr., terre tenant. Scire facias sur mortgage. Buie for judgment for want of a sufficient affidavit of defense.

<p>Negligence — Railroads—Railroad yard — Use as playground — —Permissive use — Infants — Trespassers ■— Evidence — Case for jury.</p> <p>1..While a railroad company has the right to insist upon the exclusive use of its tracks, and any person, infant or adult, going upon them is a trespasser, yet when the children of a community have for many years constantly used the railroad yards as a playground, with the company’s knowledge and tacit acquiescence, the rights and duties of the parties change; children so using the yards and tracks are not trespassers, and it is the duty of the company to exercise such care towards them as the circumstances require.</p> <p>2. In an action against a railroad company by the parents of a four year old boy to recover damages for his death, where it appeared that plaintiffs lived near a large unenclosed yard of the defendant company; that a short distance from plaintiff’s residence and on the same side of such yard, was a piece of ground used by the children of the neighborhood as a common playground; that on the day of the accident deceased, after crossing several tracks and while attempting to recross into the playground, was struck by the last car of one of defendant’s trains which was being run backward with no brakeman on the rear car; and where there was admittedly no negligence on the part of the parents of the deceased, the trial judge erred in excluding testimony offered in behalf of the plaintiffs, to the effect that the playground in question had been used as such almost daily by numbers of children for many years with the knowledge and acquiescence of the defendant, and in entering a compulsory- nonsuit.</p>

<p>Appeal, No. 114, Oct. T., 1914, from order of O. P. Allegheny Co., Oct. T., 1913, D. S. B., No. 788, discharging rule to strike off judgment in case of Commonwealth of Pennsylvania v. Isadore S. Grossman and Joseph H. Reich.</p> <p>Rule to strike off judgment entered on bond given in pursuance of Act of Juné 19, 1911, P. L. 1060. Before Shafer, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court discharged the rule to strike off the judgment. Defendants appealed.</p> <p>Error assigned, among others, was in discharging the rule to strike off judgment.</p>

<p>Lease — Oil and gas leases — Partial exploration — Abandonment— Bill in equity.</p> <p>1. Where the lessee under an oil and gas lease drilled one well and for a period of sixteen years thereafter failed to explore the premises further, and had no intention of drilling any additional wells, in a proceeding in equity to require the lessee to develop or abandon the premises, the court properly decreed that the defendants had abandoned their interest in the demised premises, except such curtilage as was necessary to operate the one well.</p> <p>2. It is an implied condition of every lease of land for the production of oil therefrom that when the existence of oil in paying quantities is made apparent the lessee shall put down as many wells as may be reasonably necessary to secure the oil for the common advantage of both lessor and lessee.'</p>

<p>Negligence — Automobiles — Master and servant — Employee of garage — Returning car to garage — Scope of employment — Deviation from route — Case for jury — Trial—Admission of hearsay without objection — Motion to strike out.</p> <p>1. In an action against a garage owner to recover damages for personal injuries sustained by the negligent operation of an automobile while being driven by defendant’s employee, who was returning the car to the garage .after having taken its owner to his home, the case was for the jury and a verdict for the plaintiff will be sustained where the evidence was conflicting as to whether the sum paid monthly by the owner of the car to the garage keeper included payment of services of defendant’s employees in driving the car to and from its owner’s home, and where, at the time of the accident, the deviation from the direct route of return to the garage was not so great as to warrant the conclusion of law that defendant’s employee was acting outside the scope of his employment.</p> <p>2. Where on the trial of such case the owner of the car testified as to a matter which was purely hearsay, and the question when asked was not .objected to and no motion was made then or immediately after the cross-examination'of the witness to strike his answer from the record, the court did not err in refusing to strike such answer from the record the following day of the trial after the defendant had moved for a nonsuit, and opened his case to the jury and in permitting such testimony to be considered by the jury.</p> <p>3. In an action to recover damages for injuries received by being struck by an automobile, the plaintiff must show that the relation of master and servant existed between the defendant and the person in charge of the car at the time of the accident, that the servant was engaged in his master’s business, and was acting within the scope of his employment at the time the tortious act was committed resulting in injury to the plaintiff. The servant must not only be engaged in and about his master’s business, but must be acting within the scope of his employment in operating the machine, to impose liability upon the master. The master, however, may not be relieved of liability for the tortious act of his servant when acting for him in furthering his business, although he is acting contrary to instructions and the act was done by the servant at a place to which the performance of his duty did not necessarily call him. The master is responsible for the negligent acts or omissions of his servants in the course of their employment, though unauthorized or even forbidden by him, and although outside of their line of duty and without regard to their motives.</p>

<p>Negligence — Automobiles—Master and servant — Defective tire —Notice to owner — Injury to chauffeur — Assumption of rish— Court and jury — New trial.</p> <p>1. In an action by a chauffeur to recover damages sustained while replacing a punctured tire on the wheel of his employer’s automobile by reason of an alleged defect in the iron retaining ring which blew out while the tire was being pumped by plaintiff, where the evidence as to whether the owner had notice of such defect and had promised to correct it was conflicting, the question of assumption of risk was for the jury, and where opposing counsel agreed that there was no question of assumption of risk in the case and the trial judge agreed to disregard such question in his charge, and after verdict for plaintiff, the court, in considering defendant’s motion for judgment non obstante veredicto, treated such question as the controlling one in the case, a new trial was awarded on appeal.</p> <p>Practice — Supreme Court — Issue tried in court below — Agreement as to issue.</p> <p>2. A party will not be heard to question the correctness of the submission of a ease after the court has submitted it from the standpoint in which both parties to the issue manifestly tried it. The Supreme Court reviews only questions considered and determined in the court below, and will not convict a trial court of error in not having ruled the ease on a question which both parties concede was not in it.</p>

<p>Beal property — Partition—Eminent domain — Opening of street —Bale of property — Party entitled to damages — Judicial sale— Notice at sale — Estoppel.</p> <p>1. The object of a proceeding in partition is to make a physical division of the real estate among the several cotenants in accordance with their respective interests, and if this is not practicable, .the statutes provide for the contingencies which may arise, one of which is the sale of the premises, or any of the purparts thereof.</p> <p>2. The decree quod partitio fiat does not dissolve the cotenancy or sever the possession, nor does it divest the title to the premises held by the tenants in common.</p> <p>3. Until a proceeding in partition is completed by the confirmation of the allotment or of the sale of the property by the court, the title and ownership remain in the tenants in common. The title' does not vest in the purchaser until, the confirmation of the sale and the purchase-money is paid or secured.</p> <p>4. Damages arising from the location and opening of a street in a city are ;a claim personal to the owner of the land at the time the injury occurred, and do not pass to a subsequent purchaser.</p> <p>5. In such case where the street was opened upon certain land after a decree in partition and order of sale thereof had been made but before the sale, the right of action accrued to the former owners and not to the purchasers at the sale.</p> <p>6. Where the property was bought at such sale by three or four tenants in common, the contention of the purchasers that the widow and heirs of the deceased tenant were estoppéd from claiming any part of the damages by reason of the announcement and notice to bidders at the time of the sale that the purchaser would be entitled to the damages, could not be sustained where it was denied that such notice was given, and where it did not appear that the widow and heirs of such deceased tenant heard the notice, if given.</p>

<p>Appeal, No. 34, Oct. T., 1915, by defendants, from decree of O. P. Somerset Co., Equity Docket, 1914, No. 7, in Equity, dismissing exceptions to report of master, in case of Levi Deal, Henry Brant, James M. Deal, Mrs. Henry F. Brant and Ezra Deal, v. Erie Coal & Coke Company, Perry C. Miller, H. L. Miller, Fred Rowe, E. M. Beachley, W. N. Moser, C. J. Rowe and J. C. Reed.</p> <p>Bill in equity for an injunction and to compel the holding of a corporate election under supervision of the court.</p> <p>Exceptions to report of master. Before Ruppel, P. J.</p> <p>The facts appear in Deal v. Erie Coal & Coke Company, 246 Pa. 552, and in the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. Defendants appealed.</p> <p>Errors assigned were in dismissing the exceptions and the decree of the court.</p>

<p>Appeal, No. 136, Oct. T., 1914,</p> <p>by plaintiffs, from decree of C. P. Butler Co., June T., 1914, No. 2, in equity, refusing an injunction in case of the Erie Coal and Coke Company, a Corporation, and Perry O. Miller, H. L. Miller, Fred Rowe, E. M. Beachley, W. N. Moser, C. J. Rowe, and J. C. Reed, Directors of the said Erie Coal and Coke Company v. Levi Deal.</p> <p>Bill in equity for an injunction.</p> <p>Motion to continue preliminary injunction. Before Reiber, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dissolved the preliminary injunction. Plaintiffs appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 221, Jan. T., 1914, by plaintiffs, from judgment of C. P. No. 1, Philadelphia Co., June T., 1911, No. 5815, refusing to take off a non-suit, in case of John Hoffman, by and Through His Father and Next Friend, Edward Hoffman, and Edward Hoffman, v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a nonsuit which the court in banc subsequently refused to take off. Plaintiffs appealed. <</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 222, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1910, No. 2823, entered n. o. v. in case of Frank Buckley v. Brown Hoisting Machinery Company.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 122, Jan. T., 1914,</p> <p>by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1910, No. 4539, on verdict for plaintiff, in case of Samuel H. Baker v. David M. Ellis.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, 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 14th and 15th assignments which were as follows:</p> <p>14. The court below erred because it permitted the witness George J. Robinson to testify in accordance with the following offer:</p> <p>George J. Robinson, called by plaintiff, sworn.</p> <p>Mr. Saul. I ask for an offer.</p> <p>Mr. Patton. I am going to show by this witness that he is an inspector in the Bureau of Elevator Inspection; that he inspected the elevator at 213-15-17 South American street in the year 1909, and in January, 1910, shortly before this accident; that at the time of these two inspections the elevator gate was not in place in front of the elevator on the first floor.</p> <p>Mr. Saul. I object to that.</p> <p>(Objection overruled; exception to defendant.)</p> <p>15. - The court, below erred because it asked the following question of the witness George J. Robinson:</p> <p>By the court.</p> <p>Q. Who did you have down there on your paper to be notified, if anybody?</p> <p>A. Anybody?</p> <p>Q. Who did you have down to be notified about this gate?</p> <p>A. Mr. Ellis.</p> <p>(Objected to by counsel for defendant.)</p> <p>Q. What Mr. Ellis?</p> <p>A. D. M. Ellis, Provident Building.</p> <p>Q. That was yoür report, was it?</p> <p>A. Yes, sir.</p>

<p>Appeal, No. 12, Oct. T., 1915, by defendants, from decree of Superior Court, Oct. T., 1913, No. 67, modifying decree of C. P. Venango Co., April T., 1912, No. 5, in Equity, fixing compensation for use of a county bridge in case of The Citizens Traction Company v. John L. Shaffer, J. T. Wallace and P. H. Culbertson, Commissioners of Venango County.</p> <p>Appeal from Superior Court.</p> <p>The facts appear in Citizens Traction Company v. Shaffer, 56 Pa. Superior Ct. 544, and in the opinion of the Supreme Court.</p> <p>The Superior Court modified decree of the Court of Common Pleas by disallowing the item of $600 for “rental on account of design and construction, including increase in width of bridge.” Defendants appealed.</p> <p>Error assigned was the decree of the Superior Court.</p>

<p>Appeal, No. 127, Jan. T., 1914, by Estella D. Myers, from, decree of O. C. Philadelphia Co., Oct. T., 1913, No. 202, dismissing exceptions to adjudication in estate of Charles E. Myers, Deceased.</p> <p>Exceptions to adjudication.</p> <p>The facts appear in the following excerpt from the adjudication of Gest, J.:</p> <p>The facts upon which this claim is founded are somewhat unusual and have been the subject of careful consideration by the auditing judge. In order to understand them, it is advisable that they be recited in chronological order. Estella D. Myers, the former wife of the testator, was divorced from him at a date not appearing in the testimony. On May 1, 1911, while the divorce suit was pending, the testator, Charles E. Myers, executed a deed of trust to the Commonwealth Title Insurance & Trust Company, reciting this fact, that the libellant was about to enter a rule for alimony and that the parties desired to adjust the question of alimony without the necessity of such rule. Accordingly, Myers agreed to deposit the sum of $30,000 with the Commonwealth Title Insurance & Trust Company ánd to purchase a dwelling house for the said Estella D. Myers, his then wife, to cost between $5,000 and $6,000, for her use during her life, and to pay the taxes, water rent and fire insurance and the cost of the necessary repairs during that period, and further to deliver certain household furniture and pay $1,000 in cash to said Estella D. Myers. The trust deed provided that the Commonwealth Trust Company should invest the. said sum of $30,000, and pay the income to Mrs. Myers, and at her death the said fund with any real estate included in the trust should be paid and conveyed to Myers if he were' living and if he should be dead to such persons as might be directed by his last will or in default thereof to his heirs and next of kin under the intestate laws.</p> <p>On July 1,1911, the parties executed a supplementary deed of trust, by which Myers agreed to convey to the Commonwealth Trust Company in lieu of the dwelling house referred to in the first agreement certain premises in Green Lane in trust to permit Estella D. Myers to use and occupy the same for the term of her life and on her decease in trust to permit Carrie Graeves to occupy the same for the term of her life and on her decease the real estate or the proceeds thereof should be paid or conveyed as provided in the deed of May 1, 1911, together with certain other unimportant modifications not necessary to be recited. The terms of the agreement as thus modified, were carried out.</p> <p>According to the testimony of Dr. James D. Schofield, a friend of Myers and associated with him in the practice of medicine, he was told by Myers, in January, 1912, that he had not treated his wife right; that he would give anything in the world to undo what he had done and that he intended to do everything possible for her while he lived. In that month Myers twice gave the witness money to give to Mrs. Myers, which the latter paid to her without counting it, and Myers also, accompanied by the witness, called at Mrs. Myers’ residence on Green Lane. In that month, January, 1912, Myers went to the South and told the witness that he had provided for Mrs. Myers as best he could, and if he could, he would give her the whole damn business. It further appeared that on or about January 18,1912, the testator gave a $1,000 Richmond & Washington four per cent, bond to Mrs. Myers, which was sold by a broker at the instance of the Commonwealth Trust Company, to which Mrs. Myers gave the bond for that purpose, and the proceeds of said bond, $985.22, were placed by the trust company to the account of Estella D. Myers.</p> <p>On January 18,1912, Myers borrowed from the Manayunk National Bank $17,000 on his note, depositing as collateral certain securities and it was practically admitted by all parties that this sum so borrowed was paid over by Myers' to Estella D. Myers, though how the payment was made did not affirmatively appear. Mr. Zug, the trust officer of the Commonwealth Trust Company, testified that Myers had previously stated to the witness his intention to make some further provision for Mrs. Myers. On January 24,1912, Estella D. Myers executed a deed of trust to the Commonwealth Trust Company as trustee in trust to invest the same and pay over the income to her, reserving the right, on ten days’ notice in writing, to terminate the trust and to receive back from the Commonwealth Trust Company the said moneys or such proportion thereof as she might request.</p> <p>On February 6, 1912, Myers, being then in-Florida, wrote two letters, one to Estella D. Myers as follows: “Miami, Biscayne Bay, Fla., Feb. 6, 1912. Mrs. Estella D. Myers. Dear Madam: I have improved so much that I have decided to return the money that I left in your keeping thereby avoiding interest on the same and Mr. Preston will arrange with you for the return of the same and give you a proper receipt for same. I have written to Mr. Preston to that effect. Respectfully, Charles E. Myers.” The other letter was addressed to Edward H. Preston, the president of the Manayunk National Bank, as follows: “Miami, Biscayne Bay, Fla., Feb. 6, Í912. Mr. Edward H. Preston. Esteemed Friend: Your letter received, regarding the matter I wrote you about. I have improved so much that I think best to cancel the loan and save the interest expense. The money was placed in Mrs. Myers’ care, so that if anything happened to me she would be better provided for. This was purely my own thought and in no way influenced by her. The money is in cash in a box in the safety vault of the Commonwealth Trust Company, Twelfth and Chestnut street. If you will kindly call on her at 170 Green Lane, Myk., and arrange to have her meet you at the trust company and she will return the money to you and you can give her a receipt for the same. You can also send me a receipt for the money stating that the loan has been paid off and that the securities are in your care at the bank. Let the transaction with Mrs. Myers be of a purely private nature so far as any bank proceedings are concerned. Truly yours, Dr. Chas. E. Myers. My address will be Hotel Alcazar, St. Augustine, Florida.”</p> <p>On receipt of this letter Preston sent it to Mrs. Myers, who returned it to him, at which time he had an interview with Mrs. Myers, who was in doubt whether she should pay the money. Mr. Preston told her that it was a matter for her to decide herself, the bank having sufficient collateral for the loan. Mr. Preston testified that he saw Estella D. Myers on another occasion and told her it was for her to determine whether she would pay the money or not. On February 13, 1912, Estella D. Myers revoked the deed of trust of January 24, 1912, by writing delivered to the trustee as follows:</p> <p>“Philadelphia, Pa. Feb. 13, 1912.</p> <p>“I hereby exercise the power reserved to me under the deed given by me to the Commonwealth Title Insurance & Trust Company, dated- January 24th, 1912, conveying to them in trust the sum of $17,000 in cash, and I hereby terminate said trust and request said company to turn over to me the estate.</p> <p>“Estella D. Myers,” In accordance with this notice, the Commonwealth Trust Company, as trustee, gave to Estella D. Myers its check dated February 23, 1912, on Franklin National Bank to the order for $17,000, which was endorsed by Mrs. Myers and given to the Manayunk National Bank, the president of Avhich, Mr. Preston, gave her a receipt as follows: “Philadelphia, Pa., Feb. 23, 1912. Received of Mrs. Estella D. Myers seventeen thousand dollars ($17,000) to be used in payment of loan of the same amount of Charles E. Myers. Manayunk Natl. Bank, by Edw. H. Preston, president.” The check was placed to the credit of the account of Charles E. Myers with the bank and was produced at the audit showing the following endorsement: “Pay Myk. National Bank or order Estella D. Myers. Manayunk Natl. Bank, Edw. H. Preston, Presdt. Received payment Feb. 23, 1912, 39. Through the Clearing House.” The note was returned with the check drawn against the account and the securities deposited as collateral with the Manayunk National Bank were retained until Myers’s death and were then delivered to the executor.</p> <p>Under these circumstances it was claimed on behalf of Estella D. Myers that her payment of $17,000 to the Manayunk National Bank was not a payment of the loan or a gift to the decedent, but intended as a loan to him to be repaid to her after the decedent returned to Philadelphia, and that Estella D. Myers was entitled to be subrogated to the claim of the Manayunk National Bank- as a creditor of the estate.</p> <p>The facts are certainly unusual and the auditing judge had some doubt whether the testimony disclosed all that existed, but counsel for all parties asserted that no further testimony could be secured. And the auditing judge observes that Estella D. Myers, although competent under the Act of June 11, 1891, P. L. 287, Stew. Purd. 1502, to contradict the testimony of Mr. Preston as to the conversations he had Avith her in February, 1912, was not called as k witness. It would thus appear that Myers borrowed $17,000 from tbe Manayunk National Bank and gave tbe money to bis divorced wife in order to fulfill tbe moral obligation wbicb be evidently felt to provide for ber. With this money sbe established a trust for herself and reserved tbe right of revocation. Subsequently, at bis request, sbe, having revoked the trust, paid over tbe money to bis creditor wbicb cancelled tbe loan, and tbe money thus went back to its starting place. Tbe question whether tbe transaction created any indebtedness from Myers to Estella D. Myers is a narrow one, and depends upon tbe intention of tbe parties at tbe time it took place. Tbe facts attending tbe original payment of $17,000 by Myers to tbe claimant did not clearly appear, but tbe auditing judge will assume that tbe condition existed wbicb is most favorable to tbe claimant, to wit, that it was an absolute gift by him to ber without any obligation whatever upon ber part to return tbe money at any time or for any purpose ; and tbe auditing judge will further disregard as probably incompetent tbe statements made by Myers in bis letter to Preston dated February 6, 1912, to tbe effect that tbe payment by him to ber was only intended as a temporary provision if “anything happened” to him. This would be a declaration in bis own favor after the event and therefore not binding upon ber, although apparently tbe contents of tbe letter were communicated to tbe claimant before sbe acted in compliance with bis request to pay back tbe money. However, it is impossible to disregard tbe letter of February 6, 1912, from tbe decedent to tbe claimant, in wbicb be said to ber that be bad “decided to return tbe money that I left in your keeping,” for it was upon this letter that sbe acted in revoking tbe trust sbe bad created and in paying over tbe money to tbe Manayunk National Bank. Furthermore, sbe accepted from the bank a receipt stating explicitly that tbe money was to be used “for payment of tbe loan of tbe same amount of Charles E. Myers.” It cannot be urged that tbe claimant acted hastily or without a proper understanding of the transaction. True, she did not consult counsel, but she was in doubt and acted after two conferences with Mr. Preston, who, although not a lawyer, was a mature and experienced business man, president of the bank, who put the matter squarely up to her own decision and apparently did not influence her. Indeed, as the bank was amply secured he had no object to urge her to make the payment. This was the time for her either to have refused to make the payment altogether or to have made it conditionally or to have secured herself by an assignment of the note with or without collateral security, or in some other way; but she did not do so and while she may possibly or probably have made the payment in the hope or expectation that Mr. Myers would make further provision for her in the future, a debt cannot be created in this way, for it requires the meeting of the minds of the parties at the time of the transaction, and therefore a gift cannot be afterwards changed by the donor into a contract or revoked. Thornton on Gifts and Advancements, 101, 105; Wandel’s Est., 16 Philadelphia 230,. The case is similar- in some respects to Fassett’s App., 167 Pa. 448, where the facts were more favorable to the claimant than they are in the present case.</p> <p>The doctrine of subrogation invoked by the learned counsel for the claimant has no application for the reason that the claimant was under no liability for the debt. If she had been so, as for example if she had been an endorser on the note and had paid it, she would be entitled to it against the maker or his estate. The claim of Estella D. Myers is dismissed.</p> <p>Anderson, J., filed the following opinion of the court in banc on exceptions to the adjudication: The evidence shows that moneys raised by a loan created on securities owned by the decedent had been handed by him to the claimant, his former wife, evidently as a donatio causa mortis, he being at that time about to go South for the benefit of his health, she handed the money back so that this loan might be repáid. Under these circumstances we think the learned trial auditing judge was clearly right in holding that the payment by her was not a loan to the decedent, but rather the giving back of that which had been given to her voluntarily.</p> <p>The exceptions are therefore dismissed, and the adjudication confirmed for the reason given by the learned auditing judge.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Negligence — Freight elevator — Customary use by employees— Contributory negligence — Proximate cause — Effort to escape danger — Case for jury — Evidence—Relevancy.</p> <p>1. In an action against an employer to recover damages for death of plaintiff’s husband, the case is for the jury and a verdict for the plaintiff will be sustained where it appeared that at tbe. time of tbe accident 'decedent was riding on a turntable on a freight elevator,', under defendant’s ■ control and customarily used by defendant’s .employees, that- while the elevator was in transit the turntable-, due to defects .in the elevator of which deceased was ignorant, tilted and swayed and plaintiff was killed in an effort to escape the^apparent danger.</p> <p>2. In such case the fact that decedent would not have been injured if he had not attempted to escape from the elevator, is not material, where it appeared that he was in good faith endeavoring to escape ,an apparent danger.</p> <p>3. In such ..case, .where it appeared that no method was provided by which the elevator could be stopped in transit by the men riding thereon, and that such lack of control increased the danger to men riding on the elevator, the trial judge made no error in admitting evidence to show that such method was not that in customary uáe. • ...... ■</p>

<p>Wills — Construction—Gift to classes — Husband and children as classes — Intention—Words and phrases — “Between."</p> <p>1. Where a gift is directed to be divided between one individual named and others not individually designated but who compose a class, except as ¡a contrary intention can be derived from the will the division contemplated by the testator is by moieties.</p> <p>2. Where a testatrix bequeathed her residuary estate “to be divided equally' between my husband and our children, the children’s money to be held in trust until they are 21 years respectively,” and was survived by her husband and three children, the court properly construed the will as dividing the gift equally between two classes, one of which consisted of the husband, and the other, of the children.</p>

<p>Appeal, No. 204, Jan. T., 1914, by W. P. Barba, Executor of the Estate of Christina Miller, deceased, from decree of O. C. Philadelphia Co., July T., 1899,.No. 267, dismissing exceptions to adjudication in Estate of Gottlieb Letterle, deceased.</p> <p>Exceptions to adjudication. Before Gest, J.</p> <p>The opinion of the Supreme Court states the facts. ■ •</p> <p>The court dismissed the exceptions in the opinion by' Dallett, P. J. W. P. Barba, executor of the Estate of Christina Miller, deceased, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Negligence — Safe place to work — Electricity — Permit — Mistaken assurance of safety — Proximate cause — Case for fury.</p> <p>In an action against an electric company to recover damages for personal injuries it appeared that the plaintiff, a carpenter who had no knowledge of electrical appliances, was employed by a contractor engaged in making repairs in the switch room of the defendant company’s electrical plant and was injured by coming in contact with a live switch. The plaintiff had commenced to work in such room after notice by the defendant’s operating department and after the issuance by the latter of a permit, upon which all parties had the right to rely, and the work being uncompleted the first day, had returned the succeeding day, when the accident happened. It appeared that under the defendant company’s rules a new permit was necessary for each day’s work, and that the permit previously issued had been returned by the foreman of the defendant company’s construction department at the end of the first day’s work, of which facts plaintiff had no knowledge. An employee of the defendant upon the ground who turned the electric current on and off in the compartment in which plaintiff was working at the time of the accident gave additional assurance of safety, but in the course of the work the plaintiff came in contact with a switch to which the defendant had permitted current to flow and was injured. Held, that the question of defendant’s negligence was properly left to the jury.</p>

<p>Appeal, No. 186, Jan. T., 1914, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1912, No. 354, on verdict for plaintiff in case of Bertha Danner v. Mark P. Wells.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Davis, 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 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. 229, Jan. T., 1914,</p> <p>by John W. Sparks and J. Maurice Wynn, Trading as J. W. Sparks & Company, from decree of C. P. No. 4, Philadelphia Co., March T., 1913, No. 2395, for plaintiff on bill in equity for an accounting in case of Ella E. Cornwell v. The Philadelphia Company; John W. Sparks and J. Maurice Wynn, Trading as J. W. Sparks & Company, Alexander H. DeHaven, William B. DeHaven, Samuel Shanbacher, B. Frank Townsend, Jr., Jeremiah F. J. Murphy and William D. Grange, Trading as DeHaven & Townsend; and Andrew J. Reilly and Walter S. Humphreys, Trading.as Frank F. Bell & Company.</p> <p>Bill in equity for discovery and for an accounting. Before Willson, P. J.</p> <p>From the record it appears that on or prior to- April 8, 1908, two certificates for 40 and 25 shares respectively of the stock of The Philadelphia Company were in the name of plaintiff and so registered. On and prior to said date, Gibbons Gray Cornwell, plaintiff’s husband, had been buying and selling stocks through J. W. Sparks & Co., and was indebted to them on this account, for which indebtedness they held collateral securities. On that date, in compliance with a demand for additional collateral, he gave them the said two certificates of stock, with the powers of attorney signed with plaintiff’s name and witnessed by him. The signatures were guaranteed in writing by Jamison Brothers & Co., members of the Philadelphia Stock Exchange, then in good standing. The certificates were sent by J. W. Sparks & Co. to Guarantee Trust & Safe Deposit Co. of Philadelphia, the transfer agent of The Philadelphia Company, and a new certificate for 65 shares was issued to J. W. Sparks & Co., who later sold 34 shares of Philadelphia Company stock to the other defendants, who purchased in good faith and for value, and the 65-share certificate was surrendered and three new certificates issued, one of them, for 31 shares, to J. W. Sparks & Co., but 65 shares were continued as collateral to Gibbons Gray Cornwell’s account, other shares of the same stock being substituted for those sold.</p> <p>Col. Cornwell died August 6,1912.</p> <p>On May 27, 1913, after notice to plaintiff, J. W. Sparks & Co. sold the 65 shares, receiving $43 a share for 55 shares and $43.50 for 10 shares, and also sold all other stocks held as collateral for the indebtedness of Col. Cornwell, and the total amount realized was not sufficient to pay said indebtedness. The market price of The Philadelphia Company shares on April 8, 1908, the lowest and highest prices thereafter, and the dividends since that date, were agreed upon.</p> <p>At the hearing, the plaintiff testified, under objection to her competency, that the signatures to the powers of attorney were not hers and were not authorized by her. Other witnesses testified that the signatures were not in plaintiff’s handwriting, but no one except the plaintiff testified in denial of the authority of her husband to sign her name.</p> <p>In the adjudication, the trial judge held that the plaintiff was incompetent to testify to matters occurring in her husband’s lifetime, and disregarded her testimony. Nevertheless, he sustained the bill' as to The Philadelphia Company and J. W. Sparks & Co., holding that the testimony (excluding that of the plaintiff herself) established that the signatures were forgeries. He found as a fact that The Philadelphia Company, in making the transfer on the powers of attorney, acted solely in reliance upon the written guaranties of Jamison Brothers & Co.-, but declined to make any finding as to the equities as between The Philadelphia Company and J. W. Sparks & Co.</p> <p>Exceptions to the adjudication were dismissed, and a final decree was entered that The Philadelphia Company and J. W. Sparks & Co. were severally liable to plaintiff in the sum of $2,800, with interest from May 27,1913; and in the further sum of $56.87, with interest from November 1, 1912, and in the further sum of $56.87, with interest from February 1,1913, “to be forthwith paid by said defendants to plaintiff.”</p> <p>John W. Sparks and J. Maurice Wynn, trading as J. W. Sparks & Company, appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and conclusions of law of the trial judge in the decree of the court.</p>

<p>Appeal, No. 128, Jan. T., 1914, by defendant, from judgment of O. P. No. 1, Philadelphia Co., June T., 1911, No. 1479, on verdict for plaintiff, in case of Edgar Kirby v. Elwood R. Kirby and Sarah A. Kirby.</p> <p>Assumpsit on an oral promise to pay a decedent’s debt. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,748.50 and judgment thereon. Defendants appealed.</p> <p>Errors assigned were instructions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 244, Jan. T., 1914, from decree of C. P. No. 8, Philadelphia Co., Sept. T., 1913, No. 805, in equity, dismissing bill in equity to set aside deeds in case of Charles H. Green v. Elbert A. Sumby.</p> <p>Bill in equity to set aside two conveyances. Before Ferguson, J.</p> <p>The lower court dismissed the bill. Plaintiff appealed.</p>

<p>Practice, Supreme Court — Error not excepted to or assigned— Radical error — Erroneous order — Appeal—Condemnation proceedings — Collateral proceeding for costs.</p> <p>1. Ordinarily the Supreme Court will not consider an error which is not made the subject of exception or assignment, hut where there is a radical error patent on the face of the record, especially when the lower court has made a final order which cannot be executed and which in itself is erroneous, such error may he corrected on appeal in the absence of exception or. assignment.</p> <p>2. Where, pending an appeal from an award of viewers in condemnation proceedings, the ordinance appropriating the land in question and directing its condemnation is repealed, the court has no power in a collateral proceeding to determine what costs a land owner may recover, and in such proceeding a decree directing payment of such costs is so fatally erroneous that on an appeal therefrom the Supreme Court will correct such error, even where it is not made the subject of an assignment.</p>

<p>Practice, Supreme Court — Judgment on warrant, of attorney— Order to strike off — Failure of lower court to state reasons— Record remitted.</p> <p>When a judgment confessed by virtue of a warrant of attorney is opened or stricken ofi, the court’s reasons for disturbing it must appear with the record when an appeal is taken to the Supreme Court; otherwise the record will be remitted.</p>

<p>Negligence — Street railways — Automobiles—Collision — Injury to passenger in automobile — Passenger’s duty to be on loolcout— Passenger and driver on common enterprise — Judgment n. o. v.</p> <p>1. Ordinarily a passenger is not chargeable with the negligence of his carrier, but that rule does not relieve him of the duty of exercising reasonable care to avoid danger.</p> <p>2. In an action against a' street railway company to recover damages for death of plaintiff’s husband resulting from a collision between one of defendant’s cars and a small roadster automobile in which deceased was a passenger sitting beside the driver, judgment for defendant n. o. v. was properly entered, where it appeared that at the time of the accident deceased and the driver of the automobile were engaged in a common, purpose; that the driver was clearly negligent in'driving upon the tracks without observing the approach of a car; and that deceased was familiar with the neighborhood, ■ saw the car tracks, and was aware that a car might pass at any moment, but made no effort to observe whether or not the track was clear.</p> <p>3. In such ease it was the duty of the deceased to be on the lookout for -an approaching car and to have warned the driver of its approach.</p>

<p>Negligence — Railroads—Assault by brakeman on passenger— Nonsuit.</p> <p>Where a passenger on a railroad car was assaulted by a brakeman, his action against the company to recover damages for personal injuries thus sustained, was properly nonsuited where the assault was wilful and malicious and nothing was shown from which it could have been reasonably inferred that it had been committed in the line or discharge of any duty to the defendant.</p>

<p>Appeal, No. 326, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., March T., 1912, No. 6200, n. o. v., in case of Hugh Lesley v. J. Hunter Ewing, Thomas L. Elwyn, and William E. Whelen, who were with Henry Whelen and Charles C. Whelen, late trading as Townsend, Whelen & Company.</p> <p>Affirmed.</p> <p>Assumpsit to recover amount paid on forged endorsement of check. Before Ralston, J.</p> <p>The facts appear in Lesley v. Ewing, 244 Pa. 480, and in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff. The court subsequently granted defendant’s motion for judgment n. o. v. Plaintiff appealed.</p> <p>Error assigned, among others, was in entering judgment for the defendant n. o. v.</p>

Appeals, Nos. 131 and 132, Jan. T., 1914, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1912, No. 2039, on verdict for plaintiff in case of Mary Sisson, by her father and next friend, Thomas Sisson, and Thomas Sisson v. City of Philadelphia. Trespass for personal injuries. Before Baldrige, J., specially sitting.

Appeal, No. 133, Jan. T., 1914,' by defendant, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1912, No. 3871, on verdict for plaintiff in case of Kathryn P. McNulty v. City of Philadelphia. Trespass for personal injuries. Before Willson, P. J. From the record it appeared that at the time of the accident plaintiff was riding in an automobile as the guest of the owner’s chauffeur, who was driving.

<p>Negligence — Municipalities—Defects in ■ street — Notice of defect — Automobiles—Passengers—Case for jury — Trials — Continuance — Refusal—Judicial discretion.</p> <p>1. Where an automobile ran into a hole in a public street whereby injuries resulted to a passenger in the car, the case was properly submitted to the jury in an action brought by such passenger against the municipality, there being evidence that the street had been negligently maintained, that defendant had actual or constructive notice of its defective condition for a sufficient time prior to the accident to have enabled it to make repairs and that the defective condition of the street was the proximate cause of the accident.</p> <p>2. In such case the court committed no abuse of judicial discretion in refusing to continue the case where counsel for the plaintiff in cross-examination of a witness for defendant sought to elicit hearsay evidence and upon objection thereto argued the admissibility of such evidence; the court sufficiently protected defendant’s' rights by sustaining the objection thereto.</p>

<p>Appeals, Nos. 110, 112, 150, 170, 172, Jan. T., 1914, by defendants, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1913, Nos. 1857, 1861, 1859, 1858, 1860, on verdicts for plaintiff in cases of Blum Brothers, Incorporated, in the hands of Edward Wolf and Willard P. Barrows, Receivers, v. The Girard National Bank of Philadelphia; Blum Brothers, Incorporated, v. Franklin National Bank; Blum Brothers, Incorporated, v. Philadelphia National Bank; Blum Brothers, Incorporated, v. Bank of North America; Blum Brothers, Incorporated, v. Fourth Street National Bank.</p> <p>Assumpsit on promissory notes.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense. Defendants appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 154, Jan. T., 1914, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1913, No. 2940, on verdict for plaintiff in case of John Kane v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Patterson, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $15,000 and judgment thereon. Defendant appealed. Errors assigned, among others, were rulings on evidence.

Appeal, No. 255, Jan. T., 1914, by Richard Y. Cook, surviving executor under the will of Rachel A. South, and .as executor under the will of H. Louisa More, deceased, from decree of O. C. Philadelphia Co., Oct. T., 1885, No.. 177, sustaining exceptions to adjudication in estate of George W. South, Deceased. Exceptions to adjudication. Before Gest, J. The opinion of the Supreme Court states the facts.

<p>Appeal, No. 299, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1913, No. 5160, on verdict for plaintiff in case of Julius Sher v. John Byrd.</p> <p>Trespass to recover damages for personal injuries. Before Staples, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,100 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>G ontracts — Sales—Guaranty—Evidence — Insufficiency — Eon-suit.</p> <p>Where in an action to recover damages for breach of an alleged guaranty to sell certain wool on or before May 1st, at 31 cents a pound, it appeared that plaintiff had dealt with defendants’ agent and that whatever proposals the latter made were not accepted by plaintiff, that plaintiff subsequently delivered the wool to defendants for sale without condition and that on receipt of the bill of lading, defendants stated that they would sell the wool on commission, but did not guarantee to sell before May 1st, as alleged; and where it appeared that before bringing the suit plaintiff never took the position that defendants had contracted to sell wool for him at any fixed price there was no sufficient evidence of the contract relied upon and a nonsuit was properly entered.</p>

<p>Appeal, No. 258, Jan. T., 1915, by plaintiff, from judgment of,C. P. No. 4, Philadelphia Co., March T., 1913, No. 2401, refusing to take off non-suit, in case of Jacob Young y. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Willson, 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 nonsuit.</p>

<p>Appeal, No. 336, Jan. T., 1914,-by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1912, No. 3000, on verdict for plaintiff, in case of Girard Trust Company, Trustee under the will of Thomas H. Powers, Deceased, and Mary Powers Harris, Curator for the time being of the Trusts under the said will, v. City of Philadelphia.</p> <p>Appeal from award of board of viewers in condemnation proceedings. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiffs for $85,625 and judgment thereon. Plaintiffs appealed.</p> <p>Errors assigned, among others, were rulings on evidence and in refusing to grant a new trial.</p>

<p>Negligence — Railroads—Infant trespassers — Children picking coal on tracks — Nonsuii.</p> <p>In an action against a railroad company to recover damages for. personal injuries sustained by a nine year old girl, a compulsory nonsuit was properly entered where it appeared that the plaintiff,. in company with her brother, a boy eleven years old, had been sent by their mother to pick coal on defendant’s tracks; that they entered the tracks at a crossing where a watchman of defendant’s was stationed and saw them pass with a basket and bucket; that they commenced picking coal when about 200 feet from such crossing at a point where a ditch and steep embankment were located immediately by the side of the north track, and a freight train was standing on the south track; that a space of five feet separated tbe north and south tracks, and allowing for overhangs there was not more than two feet between trains passing at this point; that after the children had been picking coal for several minutes a train approached on the north track, and, not having time to go around the standing cars, they stood with their backs against them and while in such position plaintiff fell, or was struck by or drawn under the passing train, there being no evidence that any one in charge of the train saw them until the moment of passing.</p>

<p>Negligence — Railroads—Automobile — Grade crossing — Safety gates open — Failure to stop — Contributory negligence — Nonsuit.</p> <p>The fact that the safety gates at a railroad crossing are open does not relieve the driver of an automobile of the duty of stopping the machine before he attempts to make the crossing, and where he fails to stop but is driving his car at a rapid pace until within so short a distance of the tracks that he cannot stop in time to avoid a collision, he is precluded from recovering in an action against the railroad company. The gates do not absolve the public from exercising proper care to protect themselves.</p>

<p>Contracts — Equity—Specific performance — Set-off.</p> <p>Where a trust company guaranteed certain payments by the owner of land to a contractor for work to be done in erecting a building thereon, agreeing to assign to the contractor certain mortgages, upon default in payment by the owner of the land, and such owner made certain cash payments to the contractor, who wrote to the trust company that such payments would be used for extra work “with your approval,” the court made no error in inferring the trust company’s assent to such application of the payments from its failure to object thereto, and the contractor, upon the failure .of the owner of the land to make the guaranteed payments, could not be required to return such payments to the trust company before it would be entitled to an assignment of the mortgages.</p>

<p>Appeal, No. 353, Jan. T., 1914, by, plaintiff, from decree of C. P. No. 1, Philadelphia Co., Sept. T., 1913, No. 3141, in equity, dismissing bill in equity for an accounting in case of George Wright v. William Levis, Incorporated.</p> <p>The facts appear in the following opinion by Kinsey, J.:</p> <p>This is a bill in equity asking for an accounting, and the return to plaintiff of the sum of $1,500 alleged to have been loaned to defendant, together with arrearages of salary at the rate of $75 per month, from May 3, 1913, to the time of the trial.</p> <p>The circumstances surrounding the loan of the $1,500, as contained in the bill, are these:</p> <p>On September 30th, 1912, plaintiff and William Levis, who is the president of the defendant corporation, entered into a written agreement, under the terms of which plaintiff agreed to loan William Levis the sum of $1,500. In consideration of the loan, Levis agreed that plaintiff would be employed by the defendant corporation, in the real estate business, for such length of time as the loan should remain unpaid, at a salary of $75 per month, and ten per cent, of the net profits of the business.</p> <p>Plaintiff made the loan of $1,500, and on October 1st, 1912, entered the employ of the defendant. On May 3d, 1913, plaintiff was discharged by defendant, as the result of some difficulty that arose between them as to minor cash items of expenditure, such as carfare, made by Wright. Wright objected to the discharge, stating that he had performed his duties faithfully in every respect, and that he would not acquiesce in the discharge except upon the return to him of his $1,500. Defendant would not do this, but stated that it would pay the loan back at the end of the year. Thereafter, on July 10th, 1913, defendant paid plaintiff $43.34, being ten per cent, of surplus as shown by a statement submitted.</p> <p>Plaintiff now complains that, although defendant has promised to pay him the moneys due,' it has refused to do so.</p> <p>Defendant admits the agreement between Wright and Levis, but denies that Levis acted for the corporation of William Levis, Incorporated; on the other hand, that he was acting individually. Defendant denies the loan was received by Levis for the corporation, but alleges that it was made personally to Levis, and was not turned over to the defendant corporation. Defendant admits plaintiff was employed at the salary of $75 per month, and 10 per cent, of profits, and alleges that plaintiff was discharged for inattention to duties.</p> <p>This suit was brought against William Levis, Incorporated, but the testimony, as well as the written contracts, shows that the agreement was made between George Wright and William Levis individually, disconnected with the corporation. This being so, the bill will have to fee dismissed with costs.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was in dismissing the bill.</p>

<p>Elections — Election booths — Arrangement — Agt- of June 10, 189S, Sec. 19, P. L. 419 — Violation—Invalidity of election — Certiorari — Practice, Supreme Court.</p> <p>1. Where a legislative provision is accompanied by a penalty for failure to observe it, the provision is mandatory.</p> <p>2. The provisions of the Act of June 10j 1893, Sec. 19, P. L. 419, relating to the arrangement of the rooms in which elections are held are mandatory and where they have been disregarded without excuse or justification, the ballots cast will be void and the returns from wards wherein such violations occurred cannot properly be reckoned in the general count.</p> <p>3. Where in a contested election case it appeared from the findings of the lower court that in violation of the Act of June 10, 1893, Sec. 19, P. L. 419, two separate rooms were employed for holding the election, one of which was occupied by the election board and in which the ballot box was placed, and the other contained the booths wherein the voters marked their ballots, that instead of a guard rail, a rope was employed which did not serve the purpose of excluding from the space reserved for voters all but the election board and persons actually engaged in voting, so that there w;as no restraint upon interference with voters who entered the booth, and that at the election certain votes cast for an office other than that contested had been purchased, the Court of Quarter Sessions erred in refusing to find that all the votes cast under such circumstances were invalid, although no actual fraud was shown as to the contested vote for the office in contest.</p> <p>4. While ordinarily on certiorari to the Supreme Court the power of the court is revisory and is restricted to the record, in election contests, which occupy a middle ground between common law and proceedings in equity, the opinion of the lower court, though not strictly a part of the record, is open to examination to discover the grounds of the court’s action.</p>

<p>Appeal, No. 292, Jan. T., 1914, by George Baymond Hall, from decree of O. O. Philadelphia Co., Jan. T., 1907, No. 182, dismissing exceptions to adjudication, in Estate of George W. Hall, deceased.</p> <p>Exceptions to adjudication. Before Gummey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions in the opinion by Anderson, J. George Baymond Hall appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Agency — Authority of agent — Insufficient evidence■ — Ratification —Case for jury — Forbearance to sue — Consideration.</p> <p>1. Where the wife of an injured employee made an agreement with her husband’s employer to refrain from bringing suit in consideration of certain payments to her, and where though the authority of the agent was not shown, it appeared that for twenty-seven months following the accident payments had been made at defendants’ office by an authorized employee, with the knowledge of defendants, and without objection or protest from them there was sufficient evidence in an action on the agreement for arrears that the agent’s contract had been ratified by defendants, to carry the case to the jury.</p> <p>2. While it is a general rule that a promise to forbear a suit against a person against whom the plaintifE has no legal cause of action is not a sufficient consideration, the rule is not applicable to an agreement of settlement made by plaintifE during the lifetime of her husband for injuries sustained by the husband, where both plaintifE and the agent of the company in whose employ the husband was injured believed that he would die as a result of the injuries, in which case plaintifE would have had a right of action.</p>

<p>Negligence — Street railways — Signal—Evidence—Negative tes~ timony — Positive testimony — Relative weight — Instructions to the jury.</p> <p>1. The purpose of the signal of the approach of a car on a street railway is to warn persons approaching a crossing, but, where one sees a car coming he needs no other warning or notice.</p> <p>2. Where in an action to recover damages for injuries resulting to plaintiff in consequence of a collision between his wagon and a trolley car at a street crossing, two witnesses for plaintiff who were present at the accident, testified that they heard no warning .given by the approaching car, and the motorman, a witness for defendant, testified that the gong was rung twice as the car approached the crossing, the trial judge made no error in characterizing the testimony of such witnesses for plaintiff as negative testimony and in stating that it was not as strong as positive evidence. Such instruction, even though erroneous, was not harmful to plaintiff it having appeared that plaintiff saw the car one hundred and fifty feet away before he drove upon the tracks of the defendant.</p> <p>Practice, G. P. — Trials—Misquotation of testimony — Harmless error.</p> <p>3. In such case the fact that the trial judge charged the jury that plaintiff “must show a case free from contributory negligence” was not harmful where the trial judge further correctly and fully discussed the elements necessary to constitute negligence and contributory negligence, nor was it reversible error in referring to plaintiff’s testimony to say tbat plaintiff “speeded up” his horse, where plaintiff stated that he “whipped up” his horse. If plaintiff’s counsel considered that he was harmed by such an error, he should have called the attention of the trial judge thereto before the jury left the court room and his failure so to do was a waiver thereof.</p>

<p>Appeals, Nos. 226 and 227, Jan. T., 1914, by plaintiffs, from judgment of C. P. No. 5, Philadelphia Co., Dee. T., 1909, No. 2181, refusing to take off nonsuit in case of John L. Douglas, Jr., by his next friend and father, John L. Douglas, and John L. Douglas in his own right,, v. John W. Converse.</p> <p>Trespass to recover damages for personal injuries. Before Staake, 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. Plaintiffs appealed.</p> <p>Errors assigned were in refusing to take off the non-suit.</p>

<p>Appeal, No. 176, Oct. T., 1914, by plaintiffs, from judgment of O. P. Allegheny Co., Fourth T., 1910, No. 103, on directed verdict for defendant, in case of Joseph Windish and Mary Windish v. Peoples Natural Gas Company.</p> <p>Trespass to recover damages for injuries resulting from an explosion of natural .gas in plaintiffs’ dwelling. Before Reid, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p>

<p>Negligence — Gas companies — Explosion—Failure to prove negligence.</p> <p>Where in an action to recover damages for injuries to plaintiff’s house resulting from the explosion of natural gas, the negligence charged was in failing to detect and report leaks in the service line of another house whereby gas percolated into plaintiff’s dwelling and in failing to know of the alleged defective condition of the meter, regulator and service line of such house, the court did not err in directing a verdict for the defendant where the evidence failed to show that defendant had been negligent in installing or maintaining its mains, meters, or connections or was charged with a duty to maintain in proper repair a service line to the dwelling houses which it served, but did show that it was the duty of the owners, or occupants, to maintain such service line, and there was no evidence that defendant knew of the leaks in the service pipe.</p>

<p>Appeal, No. 44, Oct. T., 1914, by plaintiff, from judgment of O. P. Allegheny Co., June T., 1911, No. 131, on directed verdict for defendant, in case of O. J. Smith, now Elmer A. Smith, administrator of the estate of O. J. Smith v. Peoples Natural Gas Company.</p> <p>Trespass to recover damages for injuries resulting from an explosion of natural gas in plaintiff’s dwelling. Before Reid, J.</p> <p>The facts appear in Windish v. Gas Company, 248 Pa. 236, and in Pouder v. Gas Company, 248 Pa. 242.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>Error assigned was in directing a verdict for defendant.</p>

<p>Negotiable instruments — Promissory notes — Judgment note — Payment by third person — Purchase—Presumption of purchase— Extinguishment — Court and jury■ — Case for jury.</p> <p>1. Where a stranger to a note voluntarily pays and extinguishes the indebtedness, he cannot recover against the maker; where the transaction between him and the holder of the note is a purchase, he can enforce payment against the maker.</p> <p>2. Whether the payment of an indebtedness by a stranger to the creditor is a purchase or an extinguishment of the debt depends upon the intention of the parties at the time the transaction takes place. It is prima facie a purchase. Where the evidence is conclusive, the question of intention is for the court, but where the testimony would warrant different conclusions as to the intentions of the parties, the question is for the jury.</p> <p>3. Both makers of a judgment note, one a principal and the other a surety, died before the amount was paid. Later the widow of the principal paid the amount of thg note to the payee and the note was thereupon delivered to her. The widow then brought suit on the note against the executors of the surety and recovered. In a subsequent action by the executor of the surety, against the widow, as executrix of the principal, to recover the amount of the judgment, the defense was that the widow had paid the amount of the note individually, out of her own money, and that the debt was extinguished. It appeared that there was no assignment or transfer made on the notes but the holder thereof did not declare that he would not sell the note or that it should not be held by the widow as a purchaser with the right to recover from the makers; and two persons who were present and received the moneys for the payees at the time it was paid by the widow testified that at that time she said she wanted to pay the debts of her deceased husband and “that ended the debt” as far as the payees were concerned. Meld, the case, was for the jury and the court erred in directing a verdict for the plaintiff on the ground that 'there was no evidence of extinguishment of the indebtedness.</p> <p>4. In such case the contention of the defendant that the right to recover in this action was settled by the verdict and judgment in the suit brought by the widow against the plaintiffs is untenable, neither the principal nor his executrix, as such, having been a party to such suit.</p> <p>5. The fact that the time of payment of a promissory note has been extended without the consent of the surety- is a defense for the benefit of the surety, the use of which is optional on his part, and the fact that he has not set up such defense in an action against him by the owner of the note, and there is a recovery against him, is of no avail to the principal in an action over against the principal by the surety. The principal obligor cannot demand that his surety interpose such a defense at the risk of defeating subrogation against the principal.</p>

<p>Appeal, No. 326, Jan. T., 1913, by defendant, from judgment of C. P. Huntingdon Co., Dee. T., 1911, No. 6, on verdict for plaintiffs in case of Hermine Pauline Brown, Harry Brown and Lewis R. Brown, Executors of Philip Brown, Deceased, v. Frances. Marmaduke, Executrix of John A. Brown, Deceased.</p> <p>Assumpsit on a promissory note under seal. Before Woods, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiffs for $4,711.20 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence.</p>

<p>Constitutional law — Statutes—Defective title — Act of May 21, 1918, P. L. 279 — Constitution of Pennsylvania, Article 8, Section 8.</p> <p>1. While the title to an act of assembly is not required to he a complete index to its contents and the title to an amending or supplemental act sufficiently complies with the requirements of Section 3, Article 3, of the Constitution, if it declares itself to he an amendment or supplement, and its provisions are germane to the subject of the original act, the title must not only embrace the subject of the proposed legislation but also express the same so clearly and fully as to give notice of the legislative purpose to those who may be specially interested therein.</p> <p>2. The Act of May 21, 1913, P. L. 279, amending the Act of April 27, 1909, P. L. 262, which provides for the regulation and management of county prisons in counties having a population in excess of 150,000 and less than 250,000, is violative of Article 3, Section 3, of the Constitution of Pennsylvania and is void, in so far as it creates a new class of counties having a population in excess of 150,000 and not exceeding 325,000, by reason of its title failing to disclose the intention of the legislature to create a new class of counties for any purpose. In so far as the Act of 1913 amends the provisions of the Act of 1909, regulating the management of jails or prisons in the class of counties specified in the Act of 1909, it is not open to the objection that its title is defective.</p>

<p>Appeal, No. 259, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co.,'June T., 1913, No. 2283, for defendant entered n.o.v., in case of Adolph Wáchs & Manasha Steinberg, trading as Wachs & Company, v. Fidelity & Deposit Company of Maryland.</p> <p>Assumpsit on a team liability insurance policy. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,546.43. The court subsequently entered judgment for defendant n. o. v.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 162, Jan. T., 1914, by Annah B. C. DeHaven, from decree of O. C. Philadelphia Co., Jan. T., 1910, No. 445, sustaining exceptions to adjudication in estate of Holstein DeHaven, deceased.</p> <p>Exceptions to adjudication. Before Gummey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained the exceptions of the residuary legatees in an opinion by Gest, J. Annah B. C. DeHaven, testator’s widow, appealed.</p> <p>Errors assigned were in sustaining the exceptions.</p>

<p>Negligence — Railroads — Workmen on or about tracks — Contributory negligence — Case for fury.</p> <p>1. The rights and duties of a person lawfully engaged on or near a railroad track are essentially different from those of a person about to cross such tracks at a public crossing. The law-does not impose upon a person so employed the duty of taking the precautions which are required of the public using a crossing, and does not require him to be constantly looking out for an-approaching train. His duty is to keep a reasonable'lookout for trains, and to exercise care commensurate with the danger and consistent with the faithful performance of his services.</p> <p>2. In an action against a railroad company to recover damages for personal injuries where it appeared that the plaintiff was an employee of an independent contractor engaged in work about the piers of a railroad bridge, in a place of danger from passing trains, and was struck -by a train which approached without warning, that the presence of the plaintiff at the place of the accident was known to defendant’s engineers, and plaintiff relied on them to warn him by signal of the approach of trains, the question whether plaintiff kept a reasonable lookout for trains and whether he was in the proper discharge of the duties of his employment at the time of the accident were for the jury, and the court erred in entering.judgment for defendant n. o. v.</p> <p>3. In such case the question whether plaintiff should have familiarized himself from the schedule with the time at which each passenger train would pass the place of the accident, was for the jury.</p>

<p>Wills — Trusts—Life estates• — Remainders — Rule against perpetuities — Violation—Validity of gift.</p> <p>1. A valid limitation which is associated with, but practically jjossible of separation from, one that transgresses the rule against perpetuities, will not be struck down, unless the will as a whole not only shows the void limitation, but that the general scheme and dominant purpose of the whole disposition was to tie up the testator’s estate beyond the time allowed by law.</p> <p>2. The validity'of a life estate or succession of life estates at the death of the testator, or during a life or lives in being, and 21 years thereafter, is not always affected by reason of ultimate limitations which transgress the rule against perpetuities.</p> <p>3. A testator bequeathed his estate to trustees with directions to pay the net income; therefrom to his wife for life; upon her death to his daughter for life “free from the control of any husband she may now have or hereafter take”; upon the death of said daughter to divide the principal among the children of said daughter in equal shares “the shares of any male issue or children......to be paid to them on their respectively attaining the age of 21 years,” the shares of the female children to be held “upon the like trusts hereinabove set forth and declared for my said daughter, and upon the decease of any of my said grandchildren who are daughters of my daughter......to divide and pay over such share in my estate as herein given to such grandchildren......to and among their lawful issue or children,...... in the event of my said daughter......dying not leaving any lawful issue or children her surviving, then I order and direct my said trustees......to divide and pay over the said principal of my residuary estate” among certain charitable institutions. Testator was survived by a widow and by a daughter who was married but had no children. The widow died and thereafter a female child was born to the daughter. The daughter sought to have the trust terminated and the estate awarded to her under the intestate laws, alleging that the provision for testator’s descendants violated the rule against perpetuities and that upon the death of the widow, an intestacy resulted. Held, that even though the bequest for the use of granddaughters and their issue were void, the limitations over to the charitable uses were valid, that the predominant intent of the testator after providing for his wife was to provide for and to protect his only child during her life,' to which the subsequent limitations to the daughter’s descendants were secondary, and that the trust for the life of the daughter was valid.</p> <p>Coggins’ Appeal, 124 Pa. 10, distinguished.</p>

<p>Negligence — Concurrent negligence — Joint liability — Points for charge — Refusal.</p> <p>1. Where an injury results from the concurrent negligence of several persons, they are liable jointly and severally.</p> <p>2. Where a trolley car moving at an excessive speed collided with a wagon which was being negligently driven across the tracks, causing the wagon to skid and strike a pedestrian standing on the curb, the street railway company and the owner of the wagon were properly made codefendants in an action by the pedestrian to recover damages for injuries sustained.</p> <p>3. In such case the refusal of a point submitted by the owners of the wagon, that if the jury found there was no negligence on the part of the driver of the wagon, a verdict should be found in their favor, did such defendant no harm where the trial judge charged the jury that plaintiff could not recover unless he had shown that both defendants had been negligent.</p>

<p>Negligence — Railroads — Interstate commerce — Federal safety appliance acts — MaJcing up trains — Shifting cars.</p> <p>The Federal Safety Appliance Act of March 2, 1893, c. 196, 27 Stat. 531, as amended by the Acts of March 2, 1903, c. 976, 32 Stat. 943, and March 4, 1911, c. 285, 36 Stat. 1363, 1397, requiring engines and cars engaged in interstate commerce to be equipped with air brake apparatus, does not apply in cases where drafts of ears engaged in interstate commerce are being shifted about in the process of making up trains and the failure of railroad employees to couple the air brakes on such drafts of cars will not render the railroad company liable for injuries occasioned by such failure.</p>

Appeal, No. 357, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1907, No. 4818, refusing to take off non-suit in case of S. Hammer Benson v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries. Before Ferguson, 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.

<p>Evidence — Gross examination — Extent of cross-examination — Judicial discretion — Physical condition of plaintiff — Testimony at another trial as to physical condition — Relevancy</p> <p>1. The range of a cross-examination is largely within the sound discretion of the trial judge, and unless that discretion has been abused to the injury of the party complainant, it is not ground for reversal.</p> <p>2. It is not error for the court to refuse to permit plaintiff’g attorney to examine one of defendant’s witnesses on cross-examination in regard to matters not touched upon in the direct examination and not intended to show bias, or to test the integrity of the witness or the accuracy of his statements.</p> <p>3. In an action against a street railway company to recover damages for personal injuries, where it appeared that shortly before the accident plaintiff and her sister had testified in a previous trial of another action for personal injuries that plaintiff was sick and was just as b.ad as when first hurt, the admission of the record of such evidence was proper to show that at the time of the second accident plaintiff was not in good health, for the purpose of reducing damages, and to discredit their testimony to the effect that at the time of the second accident plaintiff was in good health.</p> <p>Damages — Personal injuries — Permanent injury — Insufficient evidence'.</p> <p>4. In an action to recover damages for injuries sustained by a passenger on a trolley car in consequence of a collision, where the only evidence relating to injuries of a permanent character was that of a physician who in reply to a question whether plaintiff would “ultimately get well or require treatment indefinitely” replied “It would be difficult to answer that question definitely. She is still complaining. Of course, I do not see any evidence of it and I have to take her statement,” the trial judge did not err in refusing to permit the jury to assess damages for permanent injuries.</p>

<p>Appeal, No. 271, Jan. T., 1914, by defendant, from judgment of C. P. No. 5, Philadelphia Co., March T., 1914, No. 3535, for want of a sufficient affidavit Of defense in case of Charles Ehinger v. John Baizley Iron Works.</p> <p>Buie for judgment for want of sufficient affidavit of defense.</p> <p>The court made the rule absolute. Defendant appealed.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Error assigned was in making absolute plaintiff’s rule for judgment for want of sufficient affidavit of defense.</p>

<p>Appeal, No. 340, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., June T., 1913, No. 1754, discharging rule for judgment for want of sufficient affidavit of defense in case of Oxford Coal Company v. Fidelity and Casualty Company of New York.</p> <p>Assumpsit on an employers’ liability policy.</p> <p>Rule for judgment for want of sufficient affidavit of defense. Before Sulzberger, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court discharged the rule. Plaintiff appealed.</p> <p>Error assigned, among others, was in discharging rule for judgment for want of sufficient affidavit of defense.</p>

<p>Appeal, No. 197, Oct. T., 1914, by plaintiffs, from decree of C. P. No. 2, Allegheny Co., July T., 1911, No. 598, in equity, granting an injunction restraining defendants from operating oil wells and ordering an accounting in case of Mary M. Findley (nee Warren) wife of James T. Findley, Ida A. Findley (nee Warren) wife of Robert E. Findley, and Maggie E. Wolford (nee Warren) wife of Frank Wolford, Sylvester B. Warren and William J. Warren, children of John Warren, v. John Warren, William Munhall, The Forest Oil Company, a corporation, and the South Penn Oil Corn-pan, a corporation.</p> <p>Bill in equity to enjoin defendants from operating oil wells and for discovery and an accounting. Before Fkazer, P. J.</p> <p>The facts appear from the following findings of fact and conclusions of law:</p> <p>The purpose of this bill was to enjoin defendants from pumping and taking away oil from a farm in Marshall Township, Allegheny County. From the bill, answer and proofs we find the following</p> <p>FINDINGS OF FACT.</p> <p>First. George W. Warren being the owner of a farm situate in Marshall Township, Allegheny County, and containing about seventy-five acres, died in the year 1879, and by his last will and testament, duly probated, devised his farm to his son, John Warren, “during his life, and then to his children after his death.” Upon the death of the testator John Warren entered into possession of the farm devised to him for life by his father.</p> <p>Second. John Warren, the life tenant, is still living, and is the father of the following children, namely: Mary M. Warren, born October 29, 1871, now intermarried with James T. Findley, Sylvester B. Warren, born June 20, 1871, Ida A. Warren, born May 18, 1877, now intermarried with Robert E. Findley, William J. Warren, born June 8, 1881, and Maggie E. Warren, born November 25, 1883, and now intermarried with Frank Wolford. At the date of the death of George W. Warren three of these children, namely: Mary M., Ida A., and Sylvester B. Warren, were living. William J. and Maggie E. Warren were born after the death of their grandfather.</p> <p>Third. At the date of the death of George W. Warren and of the entry by the life tenant, John Warren, the Marshall Township farm was not encumbered by leases for oil or gas purposes, and no operations for the drilling of oil or gas wells upon the farm had-been begun at that time.</p> <p>Fourth. On July 9, 1887, John Warren, the life tenant, executed and delivered to William Munhall, one of the defendants, a lease of the Marshall Township farm for oil and gas purposes, a true copy of the lease being attached to plaintiff’s bill.</p> <p>Fifth. In pursuance of the lease referred to in the previous finding of fact, William Munhall entered upon the Marshall Township farm in the Fall of 1887, and drilled a well thereon for oil or gas, known as No. 1, which well was nonproductive. Again in the Fall of 1889, Munhall, together with the Forest Oil Company, and the South Penn Oil Company, drilled a second well, known as No. 2, upon that farm, which in September of that year reached the oil-prodncing sand and became a large producer of oil, and has continued to the present time to produce oil in paying quantities. On or about November 20, 1889, well No. 3 drilled on the dividing line of the farms of John and William Warren began producing oil. Defendants subsequently completed three additional wells, known as Nos. 4, 7 and 8, on the Marshall Township farm, all of which produced oil in paying quantities at the date of their completion, and have since that time produced oil in paying quantities. There is no testimony tending to show that lessees did not act in good faith in entering upon the Marshall Township farm and producing oil therefrom.</p> <p>Sixth. The defendant, the South Penn Oil Company, assignee of William Munhall, was at the time of filing this bill, and continued thereafter to be in possession of the leasehold estate alleged to have been created by virtue of the lease of John Warren to William Munhall for the purpose of mining and producing oil or natural gas from the Marshall Township farm, to the exclusion of and notwithstanding the rights of the children of John Warren as owners in remainder of the fee to the farm.</p> <p>Seventh. Large quantities of oil were produced from the wells drilled upon the Marshall Township farm between June 13,1891, and May 8,1912. Well No. 2 at first flowed at the rate of 300 barrels per day for approximately sixty days and well No. 3 at the rate of 175 barrels per day for from four to six months, at the end of which respective periods the production ■ materially decreased. The production of well No. 4 did not at any time exceed ten barrels per day. The total production from the Marshall Township farm, including one-half of the production from well No. 3 from September 7, 1889, to May 8,1912, was 96,843.2 barrels, the aggregate value of which was $106,765.69. The one-eighth royalty upon the same would amount to $13,343.21. The royalty upon a one-sixth basis of the oil produced from wells Nos. 2 and 3 would amount to the sum of $11,475.58; and the royalty upon the residue of the oil, produced from wells other than Nos. 2 and 3, at one-eighth would amount to $4,739.02, mating the total royalty upon the above basis $16,214.60. The aggregate amount of oil produced from the Marshall Township farm for the period of six years next preceding the filing of the bill .in this case was 16,-154.40 barrels of the value of $25,156.34. The royalty upon that amount upon a one-eighth royalty basis would amount to the sum of $3,144.54%; and a one-sixth royalty upon the production of wells Nos. 2 and 3 during the six years preceding the filing of the bill would amount to the sum of $1,677.09, and the one-eighth royalty upon all the remaining production of the farm for six years preceding the filing of the bill would amount to $1,866.73.</p> <p>Eighth. John Warren the life tenant is still living and has received from the defendants the full amount of the royalties at one-eighth of one-sixth which accrued as between the lessor and the lessee from September 7, 1889, to March 8, 1912, at which latter date the waste complained of ceased. No damage was done to the freehold of plaintiffs, other than the removal of the oil therefrom by the defendants.</p> <p>Ninth. The cost of drilling wells, maintaining and pumping them, and of producing the oil therefrom, cannot be determined, as no evidence on the subject was offered.</p> <p>Tenth. The usual and ordinary royalty paid by operators for oil leases in the locality in which the Warren farm is situate was at the time of the execution of the John Warren lease, one-eighth, in the majority of instances, and one-sixth where the production of wells exceeded a certain amount of oil.</p> <p>Eleventh. Neither plaintiffs nor their brothers, Sylvester B. Warren and William J. Warren, the two sons of John Warren, who were added as defendants in pursuance of the decision of the Supreme Court, advised nor encouraged operations under the lease made by their father with William Munhall, nor have they ever received any oil or proceeds from oil produced from the farm under the lease with Munhall, nor any benefit therefrom either directly or indirectly.</p> <p>Twelfth. Although Sylvester B. Warren and William J. Warren have been for some time employed by defendant oil companies to pump oil wells, and have from time to time worked and pumped the wells on the John Warren farm, they, as well as plaintiffs, were ignorant of their right to object to the lease and to the taking of oil thereunder from the Marshall Township farm, until about the time these proceedings were instituted. Both plaintiffs and their two brothers, however, knew that their father had but a life estate in the farm and that upon his death they would succeed to the property. Plaintiffs, as well as their brothers, having lived on the farm, had personal knowledge of the wells on the property, and also of the fact that the wells were producing oil, and were being operated by defendants.</p> <p>CONCLUSIONS OF LAW.</p> <p>First. That John Warren had no authority to lease the Marshall Township farm for oil and gas purposes there can be no doubt. Having, however, executed and delivered a lease for those purposes to William Mun-hall, who, with his codefendants, developed the property and have taken therefrom large quantities of oil, the testimony and the facts found above raise two questions: (1) Whether or not the children of John Warren are estopped from recovering in these proceedings, and (2) if not estopped, the extent to which they can recover. If the children either individually or collectively are entitled to a decree in their favor, in our opinion it makes no difference whether they appear in this proceeding as plaintiffs or defendants. A decree in either case can be made in accordance with the facts and the law without a cross-bill, Kelley v. Shay, 206 Pa. 208; particularly so in this case because the two sons of John Warren were added as defendants by order of the Supreme Court for the purpose of fixing their rights, Findley v. Warren, 244 Pa. 64. Whether or not the children of John Warren are estopped from having a decree in their favor depends entirely upon their actions since becoming of age. The testimony, which is not disputed, is that while all the sons and daughters of John Warren knew that the farm would be theirs upon the death of their father, neither of them was aware of their rights in the oil until about the time this bill was filed, when they consulted counsel and were advised that their father had not the power to lease the property for oil and gas purposes. At the time the lease was made all the children were under age; the oldest was sixteen years old and the youngest in her fourth year. At that time the children, who all lived at home on the farm could hardly be expected to know. their legal rights as remaindermen. Since reaching their majority have their actions been such as to estop them from now recovering for the oil taken from the farm? We are of opinion that they have not, unless it was their duty to consult counsel upon becoming of age. We have not been referred to any law or decision that casts this duty upon remainder-men under the circumstances of this case. Although the daughters remained at home until their marriage, there is nothing to indicate a knowledge upon their part of their legal rights sufficient to estop them from maintaining this proceeding. While the two sons remained at home until they became of age, and both were employed by the defendant, The South Penn Oil Company, and as such employees pumped the wells upon the Marshall Township farm, as well as other wells in that neighborhood, there is no testimony tending to show knowledge of their right to. or interest in the oil produced from the farm. The mere fact of employment by the oil company would not be sufficient, considering the fact that the lease was made by John Warren during the minority of all his children, the remaindermen, and that the children acted immediately upon learning of their rights, notwithstanding they were aware of the lease made by their father, that the farm would belong to them upon the death of their father, and also that the sons as employees of the South Penn Oil Company worked on the wells. We are of opinion they are not estopped' from maintaining this bill.</p> <p>Second. Plaintiffs’ contention is that the remainder-men are entitled to recover the full value of all oil taken from the farm. In this contention we do not agree. Plaintiffs are asking equity, and they must do equity. If this were a case of malicious and unwarranted trespass there would be force in their contention. The testimony, however, shows that the defendants acted in good faith, supposing that John Warren owned the farm in fee. Perhaps defendants were careless in not having the title of John Warren to the land examined. Such carelessness, however, does not amount to a malicious trespass. Under such circumstances the remaindermen should recover no more than what they would have realized had they made the lease; and especially is this the case here for the reason that had not the lease been made the oil under the farm would in all probability have been taken out through wells on adjoining property, and the remaindermen realized nothing. Was the lease a fair one? The testimony shows that it was. The terms given John Warren were those upon which land was generally leased in that neighborhood. Therefore, if the remaindermen had made the lease they would not have secured better terms than those contained in the lease to Mun-hall. Plaintiffs* claim that this case is ruled by Crawford v. Forest Oil Company, 208 Pa. 5, and that the measure of damages adopted in that case should be applied here, cannot be sustained. The facts are essentially different in that case from those found here. While the wells there were drilled during the lifetime of the life tenant, the defendant the assignee of the original lessee, did not come into possession of the property until after the termination of the lease by the death of the life tenant, and then with notice of the claims of the remaindermen. It drilled no wells and had no property rights. Under such circumstances the court held the measure of damages to be the value of the oil taken out less the cost of production. We are, therefore, of opinion that the remaindermen should receive royalty at the rate set forth in the lease of John Warren to William Munhall.</p> <p>Third. To what extent should the remaindermen recover? Their .contention is that their right to compensation extends back to the first oil produced from the farm, while defendants contend that if a recovery is allowed, it cannot be for more than six years immediately preceding the filing of the bill. Unless the statute of limitations applies, the claim of the remaindermen must be sustained. Oil is a mineral in situs like coal, and its mining is subject substantially to the same principles of law that apply to the mining of coal. In Trustees of the Proprietors of Kingston v. Lehigh Valley Coal Company, 241 Pa. 469, it was held that a remainderman must exercise due diligence in protecting Ms estate and proceed within six years after he discovers the injury to his estate if he desires to recover damages. In that case the remainderman sued to recover for coal taken out of land leased by a tenant for 999 years, the lessee of the tenant having been in possession of the property for about thirty years, and having paid to the tenant royalties to an amount exceeding flOO,000.00. An action was brought to recover for all coal mined and taken away by the lessee. The statute of limitations was set up as a defense. The court sustained the contention of the lessee and limited a recovery to the six years immediately preceding the suit. We are unable to see any difference in principle between that case and this. It seems to us it is immaterial whether the waste is committed by drilling wells or driving shafts and entries, or whether the property taken is fluid or a solid. In this case the remaindermen having knowledge that their father had but a life estate in the farm, and also knowing that the oil was being taken from the farm, it was their duty to inquire as to their legal rights and assert them, at least upon their becoming of age. As all the children of John Warren were of age more than six years before filing the bill in this case, we are of opinion that under the law as laid down in Trustees of the Proprietors of Kingston v. Lehigh Valley Coal Company, 241 Pa. 469, the statute of limitations applies, and that the remainder-men are limited to a recovery for the six years immediately preceding the filing of the bill in this case.</p> <p>Fourth. Under the terms of the lease to Munhall as we understand them, the royalty payable to the remaindermen should be at the rate of one-sixth of the oil produced from wells Nos. 2 and 3 for the six years preceding the filing of the bill in this case, the production of those wells having exceeded sixty barrels per day for thirty days; and one-eighth of the oil produced from wells Nos. 4, 7 and 8, for six years immediately preceding the filing of the bill in this case.</p> <p>On exceptions to the findings of fact and conclusions of law, Frazer, P. J., filed the following opinion:</p> <p>The exceptions filed ex parte plaintiffs to our findings of fact and conclusions of law, in substance .are: (1) to our not finding that plaintiffs were entitled to receive compensation for all the oil taken from the Marshall Township farm; (2) in holding that the statute of limitations applied and limiting plaintiffs’ right to recover to the six years preceding the filing of the bill in this case, and (3) to our failing to award interest upon the damages allowed.</p> <p>We have considered the argument and the brief filed by plaintiffs and have not been convinced that our conclusions in limiting plaintiffs’ recovery to royalty upon the oil produced within the last six years are erroneous. These questions were considered by us at the time of preparing our findings of fact and conclusions of law, and neither the arguments of counsel nor the briefs furnish any new reasons in support of plaintiffs’ contention. As to plaintiffs’ right to receive interest and whether it should be computed yearly upon the amounts due them as claimed by plaintiffs’ counsel, or from the time demand was made upon defendants for the value of the oil taken out is a question that we can consider and determine at the time of filing the final decree in this case.</p> <p>The court granted a decree perpetually enjoining defendants from operating the wells and ordered defendant to pay plaintiffs $4,604.05 in equal shares with interest from June 25, 1914, the costs to be paid by defendants, such amount being sum equal to royalties due under lease between life tenant and other defendants.</p> <p>Errors assigned were various findings of fact and conclusion of law and the decree of the court.</p>

<p>Equity — Partition—Parties—Voluntary bid — Award — Exceptions — Estoppel.</p> <p>A party in a partition proceeding who, upon notice from a master to appear mid bid over or accept or refuse purparts ,as made, valued and confirmed, comes in without objection and submits a written bid. for one purpart, at which' it is awarded to her, is thereafter estopped from excepting to the master’s authority to make such award.</p>

<p>Partition — Joint tenancy — Expenditures by one cotenant — Liability of other cotenant.</p> <p>Where in. a proceeding in partition on bill and cross-bill it appeared that subsequent to the purchase of the property by the parties, the defendant paid off a note for the purchase price, which note had been made by himself and the plaintiff jointly, and paid out of his own pocket large sums for improvements and for the discharge of encumbrances upon the property, and it did not appear that the plaintiff was not obligated to bear his share of the expenditures, the court commits no error in assessing half the amount of such expenditures against the value of the plaintiff’s purpart.</p>

Appeal, No. 354, Jan. T., 1914, by defendant, from judgment of C. P. Lehigh Co., Sept. T., 1913, No. 57, for plaintiff for want of a sufficient affidavit of defense in case of Crane Railroad Company v. Central Railroad Company of New Jersey. Assumpsit for a balance for services rendered in and about the transportation of cars. Rule for judgment for want of a sufficient affidavit of defense. Before Grom an, P. J. The facts appear by the opinion of the Supreme Court.

<p>Negligence — Automobiles—Highways — Bicycle — Contributory negligence — Case for jury.</p> <p>In an action to recover damages for the death of plaintiff’s decedent the question of the deceased’s contributory negligence is for the jury where it appears that the latter was struck by the defendant’s automobile which was running at an excessive rate of speed upon the wrong side of the highway and that the plaintiff’s decedent was crossing the street and had to travel over a space of but five feet three inches to reach the side, where it was his duty to go, in following the rules of the road, at a time when the defendant’s automobile was 160 feet away.</p>

<p>Appeal, No. 109, Jan. T., 1914, by defendant, from judgment of C. P. No. 4, Philadelphia Co., June T., 1910, No. 5595, on verdict for plaintiff in case of Annie Rowand v. Germantown Trust Company, Executor of the Will of James P. Fleming, deceased.</p> <p>Trespass to recover damages for personal injuries. Before Willson, P. J.</p> <p>From the record it appeared that defendant’s decedent had been arrested on Broad street, Philadelphia, for the careless driving of his automobile, that while he was in custody another person named Maxwell, came up, stated to the officer that he knew defendant’s decedent, that he knew how to handle the car and that he would take it to the garage. The officer, who did not know him, asked defendant’s decedent if this was correct and whether he knew the man and would let him take charge of the machine, to which he replied in the affirmative. Maxwell then went into the street and started to crank the car; while he was so engaged, the car started, knocking him down, and the hub of one of the wheels caught in the plaintiff’s dress and she was thrown to the ground, receiving the injuries complained of.</p> <p>Verdict for the plaintiff for $3,000, and judgment thereon. Defendant appealed.</p> <p>Error assigned was in refusing defendant’s motion for binding instructions.</p>

<p>Appeal, No. 235, Jan. T., 1914, by George Gorgas Pierie, from decree of O. C. Chester Co., Jan. T., 1914, No. 235, dismissing exceptions to report of auditor in Estate of John Gorgas, deceased.</p> <p>Exceptions to report of Robert T. Cornwell, Esq., auditor. Before Butler, J.</p> <p>The opinion-of the Supreme Court states the case.</p> <p>The court dismissed the exceptions.</p> <p>Error assigned, among others, was the dismissal of various exceptions to the auditor’s report.</p>

<p>Appeal, No. 392, Jan. T., 1914, by defendants, from judgment of C. P. Chester Co., Jan. T., 1913, No. 48, on verdict for plaintiff in case of Commonwealth of Pennsylvania v. Keystone Graphite Company, with notice to Hiram C. Himes, Charles L. Reid and Edmund B. Seymour, trustees for the bondholders of New Philadelphia Graphite Company, terre tenants.</p> <p>Sci. fa. sur tax lien.</p> <p>The facts appear by the following opinion by Johnson, P. J., specially presiding:</p> <p>On June 9, 1905, A. C. Spencer conveyed by deed to the New Philadelphia Graphite Company certain real estate in the County of Chester, Pennsylvania, and took in payment certain bonds secured by a mortgage .given to the Union Trust Company as trustee.</p> <p>This mortgage contained the following provisions: “If any default shall be made by the company in payment of the principal or in interest of said bonds, or any of them when due, according to the tenor thereof, and of this indenture or if said company shall fail to make the yearly payment to the sinking fund required by Section 12 of this indenture, or shall fail faithfully to observe and perform any of the requirements imposed upon it by said bonds and coupons, or by this indenture, and such default or failure shall continue for the period of six months after written notice thereof has been given by the trustee or its successors to the company, then and thereupon it shall and may be lawful for the trustee or its successors, upon, the written request of the holders of not less than 60 per centum in amount of the bonds then outstanding and unpaid, to proceed to sell at public auction unto the highest bidder all and singular the property real and personal, rights and franchises and privileges hereby conveyed, transferred, set over or pledged or intended so to be, that shall then be subject to the lien, operation and effect of this indenture, and pledged with the appurtenances and benefits of the equity and redemption of the company, its successors. or assigns therein. Such sale shall be made by the trustee or its successors their company or companies, in the City of Philadelphia after ten days’ notice of the time and place of sale shall be given by the trustee or its successors by publication in such newspaper or newspapers as shall be required by the laws of New Jersey and in at least two daily newspapers published in the City of Philadelphia once in each week for not less than six consecutive weeks, together with such other notice, if any, as may be required by law, and the trustee or its successors without further advertising such sale made by announcement made at the time and place fixed by publication, or at an adjourned sale from time to time for such period or periods as may be advisable and upon such sale and receiving the purchase-money therefor, it shall be lawful for the trustee or its successors to convey, assign, transfer and set over the property real or personal rights, franchises and privileges so sold the purchaser or purchasers thereof and such sale and conveyance, transfer or assignments shall convey, transfer or assign all the right, title, estate, property and interest of the company of, in and to the said property real and personal, rights, franchises and privileges to the purchaser or purchasers thereof absolutely and forever, free, clear and discharged of and from any and all the provisions and conditions hereby created without liability on the part of the purchaser or purchasers to see to the application or disposition of the purchase-money, and shall be a perpetual bar, both in law and equity against the company, its successors and against all and every person claiming or to claim the same or any part thereof under it forever, and the receipts of the trustee or its successors for the purchase-money shall be a sufficient discharge to the purchaser or purchasers of all or any part of the property real and personal right, franchises or privileges so sold.”</p> <p>Also article 10 which reads as follows:</p> <p>“The proceeds of any sale under the provisions! of this mortgage shall be applied by the trustee or its successors first to the payment of the cost and expenses of such sale, including reasonable compensation to the trustee or its successors, its agents, attorney and counsel and all expenses, liabilities and advances made or incurred by or under the authority of the trustee or its successors in connection with the trusts hereof, and all taxes, assessments, insurance premiums and other charges thereon, second, to the payment of the whole amount of the principal and interest then owing or unpaid upon said bonds, or any of them whether said principal by the default of said bonds be then due or yet to become due, and in case such proceeds are insufficient to pay in full the amount of the principal and interest then owing and unpaid upon said bonds the same shall be paid ratably upon all of said bonds then owing or unpaid without preference to any bond over any of the others of them, or of interest over principal, third, to pay over the surplus if any, on demand to the company, the successors or assigns, or as any court of competent jurisdiction may direct.”</p> <p>On October 26th, 1905, the New Philadelphia Graphite Go., executed a deed of trust to the said Union Trust Company.</p> <p>This deed contained the following: “In trust nevertheless to, for and upon the uses, intents and purposes as set forth in the mortgage or deed of trust hereinbefore recited, and none other, and subject to all the provisos, conditions, limitations and agreements of the same as fully to all intents and purposes as though said provisos, conditions, limitations and covenants and agreements were herein set forth in full or at large.”</p> <p>The above mortgage and deed describe all . the lands covered by the mortgage and against which the liens were filed.</p> <p>On June 5th, 1907, The New Philadelphia Graphite Company by deed conveyed these lands to The Keystone Graphite Co., under and subject to the mortgage held in trust by the Union Trust Company.</p> <p>December 14th, 1910, the Commonwealth of Pennsylvania filed in the Court of Common Pleas of Chester County a tax lien for tax on capital stock amounting to one thousand three hundred and fourteen dollars and eighty-four cents.</p> <p>About a week after the filing of these liens the trustee by virtue of the authority set forth in the mortgage sold the property to the bondholders for $5,000.00.</p> <p>Sci fas were issued on the lien, and on the trial the court directed the jury to render verdicts for the Commonwealth.</p> <p>A motion was made for judgment in favor of the defendants notwithstanding the verdict, and motion for a new trial.</p> <p>The contention of the defendant is that the tax liens were divested by the sale under the mortgage and therefore there can be no recovery on the liens.</p> <p>In our view the sale by the trustee under the terms of the mortgage in no way affected the tax liens.</p> <p>We are not convinced that the direction of the court to the jury to render a verdict for the plaintiff was error.</p> <p>Yerdict for plaintiff for $1,746.54 and judgment thereon. Defendants appealed.</p> <p>Error assigned was in discharging defendant’s motion for judgment non obstante veredicto.</p>

<p>Appeal, No. 474, Jan. T., 1914, by Charles O’Brien, from decree of O. C. Bucks- Co., dismissing husband’s petition for leave to take against his wife’s will in Estate of Catharine O’Brien (or O’Brine), deceased.</p> <p>Petition by husband for leave to take against will of his deceased wife. Before Evan, P. J.</p> <p>From the record it appeared Catharine O’Brien (or O’Brine), the decedent, died in the Borough of Bristol, Bucks County, on January 8, 1913, testate, leaving to survive her, the petitioner, her husband, and certain collateral heirs but no issue. Her will, which was dated March 24, 1909, was duly admitted to probate by the register of said county, and letters testamentary were granted thereon, to John S. McFadden, the executor named therein, on January 16, 1913. Under the provisions of the will all the decedent’s estate, both real and personal, was devised and bequeathed to her husband for life, and at his death distributed among nephews and nieces and a sister.</p> <p>According to the inventory and appraisement filed, the personal estate amounted to $480.70. The real estate valued at $2,700.</p> <p>Charles O’Brien presented his petition setting forth inter alia that he elected to take against the will of his wife in writing on September 11,1913, and praying that he be allowed $5,000, as the surviving husband out of said estate, “under the. provisions of the Act of May 4, 1855, P. L. 430, and the Act of April 1, 1909, P. L. 87, and the decisions of the Supreme Court thereunder.” John S. McPadden, the executor and legatee and devisee under the will of the said Catharine O’Brien, filed an'answer to said petition and exceptions to the allowance prayed for. One exception averred that on January 15, 1913, the petitioner executed and delivered to the respondent, McFadden, a paper in the following form: “Bristol, Pa., January 15,1913,1, Charles O’Brien, surviving husband of Catharine O’Brien, deceased, do hereby acknowledge that I am familiar with her last will dated twenty-fourth day of March, 1909, as well as her property comprising her estate, and I do declare that I am satisfied with said will and I will abide thereby.</p> <p>His</p> <p>Witnesses: signed Charles (X) O’Brien.</p> <p>Neal D. Mulligan. Mark.</p> <p>Bernard A. Sweeney.</p> <p>This paper was first filed by the deputy register on January 16, 1913. It was afterward acknowledged and recorded in the recorder’s office in Bucks County, on January 8, 1914, in Miscellaneous Book, 42, page 331, etc., and refiled in.the office of the register of wills of said county on January 16, 1914. It further appeared that .the will of Catharine O’Brien was made by agreement with said Charles O’Brien, who at the same time executed' his will in the same terms as hers in pursuance of the agreement, and that said contemporaneous wills were made upon further consideration that said decedent then gave her said husband a one-half interest in all her property which he now retains and possesses.</p> <p>The court dismissed the petition.</p> <p>Error assigned, among others, was in dismissing the petition.</p>

<p>Appeal, No. 20, Jan. T., 1915, by defendant, from judgment of C. P. Delaware Co., Sept. T., 1911, No. 42, on verdict for plaintiff in case of Bertha S. Rigby v. Metropolitan Life Insurance Company.</p> <p>Assumpsit on policy of life insurance. Before Broom-all, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,986.40 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Wills — Construction—Buie in Shelley’s Case — Words of purchase.</p> <p>Where testator devised a life interest in certain real estate to his pister, with remainder to a certain named nephew for life, with the provision that if snch nephew should die before the death of the first taker the property should go “to my oldest surviving nephew of the family name of Wetherill for and during the time of his natural life with remainder to hia oldest son and his heirs in fee,” and the nephew named died before the first taker, the court properly held that the oldest surviving nephew did not take a fee.</p>

<p>Appeal, No. 107, Jan. T., 1914, by plaintiffs, from decree of C. P. No. 5, Philadelphia Co., March T., 1913, No. 5125, in equity, dismissing exceptions to report of auditor, in case of Samuel H. Shingle, Ernest L. Parker and Gilbert S. Parker, executors of the last will and testament of Edward W. Smith, deceased, v. Edward B. Smyth, Patrick Henry and Pennell C. Kirkbride, a copartnership in brokerage and doing business under the firm name and style of Smyth, Henry and Kirkbride.</p> <p>Bill in equity for discovery and for an accounting.</p> <p>Exceptions to report of J. Frederick Hartmann, Esq., auditor. Before Staake, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed thé excéptions. Plaintiffs appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Negligence — Municipalities—Bridges—Child playing on bridge —Death—Improper design — Non-expert witnesses as to design— Harmless error — Evidence—Postal cards — Admissibility — Case for jury.</p> <p>1. A bridge is a part of a highway and as such the duty of keeping it in reasonably safe condition for travel is as imperative as the duties connected with other parts of the highway, and the question whether, under the circumstances of a particular case, a distinct part of the highway is properly constructed and guarded is generally for the jury.</p> <p>2. The rule that where the proper authorities of a municipality, in the exercise of their discretion, have adopted a specially designed structure as being suitable for a designated location, a jury cannot be permitted to say that their discretion was improperly exercised, is subject to the exception that, if the facts of the case justify it, a jury may decide whether or not the plan on which the structure was built was so defective as to make its adoption an act of negligence.</p> <p>3. The tendency of children in playing to dart suddenly from one side of the street to the other is so natural and well known that a municipality in maintaining a bridge much used, by children is bound to anticipate and guard against a probable misstep or stumble by a child and provide such safe guard as would reasonably prevent a fall from the bridge.</p> <p>4. In an action to recover damages for the death of plaintiff’s 9 year old son, caused by his fall, while at play on a bridge, through a twenty-two inch opening between the lower guard rail thereof, and the cap- log which extended along the outer edge of the planking of the roadway, the case was properly submitted to the jury where it appeared that the bridge was part of a highway maintained by defendant municipality, that it was used daily by more than two thousand persons, many of whom were children, and that it was the only bridge in the locality not guarded in such a manner that ian accident similar to the one complained of could not have happened.</p> <p>5. In such case where there is testimony to the effect that the bridge was obsolete in design, and that there was another safer way to build such bridge, the jury should have the right to pass upon such evidence, and it is immaterial that the evidence of witnesses other than experts on this subject is admitted.</p> <p>6. Where in such case the trial judge told the jury that the city would be negligent if it built a bridge with an open space “which would possibly allow people that were properly using the bridge to fall into that space,” but where the word “possibly,” when taken in connection with the other instructions, was apparently used in the sense of “perhaps,” the jury could not have misunderstood the directions, and the improper use of the word “possibly” was not reversible error.</p> <p>7. In such case the contention that a postal card, which a witness testified came in reply to a written complaint relating to the accumulation of earth on the bridge, was inadmissible because not shown to have been sent by defendant’s agents, was without merit, where the subject matter was sufficiently identified by the witness, and by the card, to raise the inference that the card was sent by the agents of defendant.</p>

<p>Appeal, No. 217, Jan. T., 1914, by defendants, from decree of C. P. No. 5, Philadelphia Co., March T., 1914, No. 3500, awarding mandamus in case of Benjamin H. Renshaw v. the Mayor and Select and Common Councils of the City of Philadelphia, Rudolph Blankenburg, Mayor of said City; Harry C. Ransley, President of Select Council of said City, George D. McCurdy, President of Common Councils, and the members of Select and Common Councils, naming them.</p> <p>Petition for mandamus. Before Ralston, J.</p> <p>On January 17, 1914, the mayor of Philadelphia appointed Benjamin H. Renshaw, a member of the bar, to sit as committing magistrate in Central Station. Mr. Renshaw did not hold the office of magistrate in the city, and the mayor made the appointment under the provisions of the Act of April 9,1873, P. L. 575. He also sent a message to councils requesting them to make an appropriation for the payment of the salary of $2,500 provided for by the act. This councils refused to do, and Mr. Renshaw instituted this proceeding to compel councils to make the appropriation.</p> <p>The court sustained the demurrer to the return and awarded a peremptory mandamus to compel the defendants to make an appropriation for the payment of the plaintiff’s salary. The select and common councils appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 191, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1913, No. 4654, refusing mandamus, in case of Philadelphia & Reading Railway Company v. Henry F. Walton, Prothonotary of the Courts of Common Pleas of Philadelphia County and Clerk of the Municipal Court of Philadelphia.</p> <p>Petition for mandamus. Before Staake, J.</p> <p>From the record it appeared that an action of trespass had been brought against plaintiff in the Municipal Court of Philadelphia County; that plaintiff thereupon tendered a plea of “not guilty” to the prothonotary of the Courts of Common Pleas, who by the Act of July 12, 1913, P. L. 711, is also clerk of the Municipal Court of the City of Philadelphia, but that the Prothonotary refused to accept, or file, said plea. Plaintiff thereupon petitioned for a writ of mandamus to compel the Prothonotary to file the plea. The answer of the Prothonotary averred that Section 12 of the Act of July 12,1913, P. L. 711, authorized the clerk of the Municipal Court to require an answer under oath and prohibited him from accepting the plea.</p> <p>Plaintiff demurred to the answer, alleging that Section 12 of the said Act of July 12, 1913, P. L. 711, is unconstitutional; the court overruled the demurrer and entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 187, Jan. T., 1915, by defendants, from decree of C. P. Luzerne Co., Dec. T., 1913, No. 12, in equity awarding an injunction, in case of Lehigh Valley Coal Company v. Fanny Searle Hays, Warner Searle, Raynsford Searle, Carrie Searle Welling, E. R. W. Searle, Executor and Trustee of W. S. Searle Est., E. R. W. Searle, Anna C. Searle, Barry Searle, Daniel Searle, Roger S. Searle, Ellen Searle, M. Irene Searle, Executrix of D. W. Searle Est., M. J. McCollum, Clara M. Searle, M. Coolbaugh, Administrator of Harriet Coolbaugh Est,, Joanna Stevens, Mary L. Shoemaker, Lydia Stark Mosier, and Jennie Stark Warner.</p> <p>Bill in equity to enjoin the forfeiture of a coal lease. Before Fuller, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded an injunction. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law of the trial judge and the decree of the court.</p>

<p>Appeal, No. 385, Jan. T., 1914, by defendants, from decree of C. P. No. 2, Philadelphia Co., June T., 1914, No. 2592, awarding mandamus, in case of Hugh Gallagher v. Budolph Blankenburg, May- or; George D. Porter, Director of the Department of Public Safety; and Frank M. Biter, Peter Bolger and Lewis H. Van Dusen, Civil Service Commissioners, of the City of Philadelphia.</p> <p>Petition for mandamus. Before Dougherty, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded a peremptory mandamus. Defendants appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 156, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1913, No. 3996, on verdict for plaintiff, in case of M. H. Garrison v. Thomas J. Armstrong, Trading as Thomas J. Armstrong & Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, 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 rulings on evidence, 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>Corporations — Directors — Mismanagement — Declarations of dividend out of capital — Over-issue of stock — Negligence—Discovery — Accounting.</p> <p>1. The directors of a corporation are required to exercise reasonable and ordinary care, skill and diligence in conducting its business and the failure to observe this standard of care imposes liability on a defaulting director.</p> <p>2. Where directors of a corporation by the want of ordinary care have permitted the corporation to be defrauded by a third person and have employed a person under suspicion, in a responsible position whereby the theft of valuable property from the corporation has been made possible and have permitted the over-issuance of stock resulting in loss to the corporation, they may be required to account to the corporation for the injuries which such conduct has caused.</p> <p>3. The directors of a corporation who have impaired its capital stock by declaring dividends therefrom although informed of the company’s financial condition can be compelled by the corporation to reinstate the capital where the corporation is a going concern and is not in liquidation. The contention in such case that the dividends declared out of the capital were received by the stockholders and that the corporation representing the stockholders cannot claim reimbursement for that which the stockholders received is without merit, as the corporation represents only the interests of its creditors and the capital may in future be required for the payment of the corporate debts.</p> <p>4. The directors of a corporation engaged in the business of loaning money on jewelry declared and paid dividends out of the capital and made large loans to a party who in collusion with the company’s appraiser was permitted to defraud the company of large sums of money by depositing insufficient collateral for his loans; the appraiser was discharged under suspicion, but subsequently reappointed and stole property worth $16,000 from the company; no system was adopted for cheeking the collateral on deposit with the loans and cash on hand; the executive committee of the directors never met or transacted any business; the directors issued misleading statements regarding the financial condition of the company and permitted an over-issue of stock. A bill in equity was filed against the directors in the name of the corporation for a discovery and an accounting for the losses which had resulted from their mismanagement. Held, the court did not err in finding that the directors had been guilty of gross negligence resulting in loss to the company, and in decreeing that they should account to the company for losses so caused.</p>

<p>Appeal, No. 114, Jan. T., 1913, by David R. Carson, from judgment of Superior Court, Oct. T., 1912, No. 137, affirming judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1911, No. 7053, M. L. D., in case of Atlantic Terra Cotta Company v. David R. Carson, Owner or Eepnted Owner, and Calvin W. Eogers, Contractor.</p> <p>■ Appeal from Superior Court.</p> <p>The opinion of the Supreme Court states the case. See Atlantic Terra Cotta Co. v. Carson, 53 Pa. Superior Ct. 91.</p> <p>The Superior Court affirmed a judgment entered for plaintiff for want of an affidavit of defense. Defendant appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 321, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1912, No. 4294, M. L. D., for plaintiff for want of an affidavit of defense, in the case of Alfred £j. Powell v. Calvin W. Rogers, Owner or Reputed Owner, and Josephine L. Kennedy, Real Owner. Before Mestrezat, Potter, Elkin, Mosohzisker and. Frazer, JJ.</p>

<p>Appeal, No. 133, Oct. T., 1914, by plaintiff, from decree of C. P. Allegheny Co., Jan. T., 1913, No. 1649, dismissing bill in equity for discovery and for an accounting in case of Prolident Trust Company a corporation, Charles Ober, Henry Albrecht, James W. Dickson, Ida Kirschler and Annie K. Sauer, v. Charles Geyer, Joseph Stybr and Morris Einstein.</p> <p>Bill in equity to declare a trust and for an accounting. Before Frazer, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings and the decree of the court.</p>

<p>Corporations — Officers—Stoclcholders—Trust ■and trustees — Accounts — Profits from sale of treasury stoch — Equity jurisdiction.</p> <p>1. The directors of a corporation are trustees or quasi trustees of its capital and assets and as such are liable for any breach of duty with regard thereto.</p> <p>2. A director of a corporation occupies such a fiduciary relation to it that he cannot retain secret profits received in the management of its affairs but must account for such profits, derived from its management, which otherwise would have accrued to the corporation; and the directors of a corporation are under an inherent obligation not'to use their position to advantage their individual interests as distinguished from those which they represent in a fidicuary capacity.</p>

<p>Appeal, No. 335, Jan. T., 1914, by defendant, from judgment of O. & T\ Del. Co-., March Sess., 1914, No. 123, on verdict of guilty of murder of the first degree in case of Commonwealth v. George H. March.</p> <p>Indictment for murder. Before Johnson, P. J.</p> <p>The grand jury for the December Sessions of 1913 found an indictment against the defendant charging him with murder. When the defendant was called for trial on December 18, 1913, defendant’s counsel made motions to quash the indictment and for a continuance, upon the ground that the sheriff had failed to make proper returns with his venire of the names of the jurors summoned for the December term. The trial judge granted defendant’s motion for a continuance. Defendant was subsequently indicted by the March grand jury and tried on the latter indictment, Defendant objected to being tried on the latter indictment while that found by the December grand jury was still pending and undisposed of.</p> <p>Through an error of a clerk in the prothonotary’s office the following docket entry was made: “3-4-14. Certified from the Oyer and Terminer to the Quarter Sessions.” The certification was without authority and had never been made by the court. Based on this, entry, the record when prepared for the Supreme Court was entitled “In the Court of Quarter Sessions of the Peace in and for the County of Delaware.” The error was discovered after the appeal to the Supreme Court, but before the record had been returned, and a petition presented by the district attorney to the lower court to amend and correct the record was thereupon granted. After the petition and rule in the lower court was served upon counsel for the defendant, the record was filed in the Supreme Court. Upon petition to the Supreme Court, the record was then remitted for the purpose of correcting the clerical error, which was accordingly done by the trial judge. Other facts appear by the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.</p> <p>Errors assigned, among others, were in refusing defendant’s petition for a change of venue, and others referred to in the opinion of the Supreme Court.</p>

Appeal, No. 213, Oct. T., 1914, by defendant, from judgment of O. P. Lawrence Co., Dec. T., 1913, No. 44, on verdict for plaintiff, in case of Sarah A. Potter v. Ida Grimm-. Assumpsit on a contract for the sale of land. Before Porter, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for |2,583.33 and judgment thereon. Defendant appealed. Errors assigned were rulings on evidence, instructions to the jury and the entry of judgment on the verdict.

<p>Contracts — Corporations — Subscriptions to stoclc — Agreement with individual — Suit by corporation —Insufficient evidence — Judgment for defendant n. o. v.</p> <p>In an'action to recover a balance on an alleged subscription to the stock of plaintiff corporation, it appeared that defendant had made a verbal agreement with the proprietor of a medical journal that if the proprietor of such journal would turn over his publication to a corporation, yet to be incorporated, defendant would invest $5,000 in the enterprise and take 800 shares of capital stock. Defendant at the time of such agreement paid $1,000 to the proprietor of the journal; plaintiff corporation was subsequently formed but the application for the charter did not mention defendant’s name as being a subscriber to the stock. Defendant subsequently refused to invest more money in the enterprise or to take any stock. Held, that defendant was not a subscriber to the stock of plaintiff company, that if there was -any binding agreement made by him it was with the proprietor of the journal, not with plaintiff, and the court did not err in entering judgment for the defendant non obstante veredicto.</p>

<p>Constitutional law — Local and special laws — Titles to acts— Constitution of Pennsylvania, Article III, Sections 8 and 7• — Reasonable classification — Act of July 81,1918, P. L. 960 — Municipalities — Cities of third class — Inspectors of weights and measures■ — ■ Appointment by mayor — Compensation —■ Appropriation — City council — Mandamus.</p> <p>1. A reasonable classification of counties has always been sustained on the basis of population, where those of a similar population have been enabled to finally come within the provisions of the legislation.</p> <p>2. The Act of July 24, 1913, P. L. 960, relating to the appointment of inspectors of weights and measures, fixing the minimum salary to be paid such inspectors and amending Section 1 of the Act of May 11, 1911, P. L. 275, is not a local law, although the minimum salary provision doe3 not apply in counties having a population of 15,000 or less, effects a reasonable classification, based upon the population of the counties affected, and is valid.</p> <p>3. When an act is declared to be a supplement to a former act, if the subject of the original act is sufficiently expressed in its own title and the provisions of the supplement are germane to that subject, the subject of the supplement is sufficiently covered by a title containing a specific reference to the original by its title with the date of its approval.</p> <p>4. The Act of July 24, 1913, P. L. 960, which is entitled “An Act to Amend” the Act of May 11, 1911, P. L. 275, and the provisions of which are germane to the subject-matter of the Act of 1911, is not defective in title in view of the fact that the title of the Act of 1911 gives proper notice of the subject-matter of that act.</p> <p>5. While under the Act of July 24, 1913, P. L. 960, a city and county may combine in the appointment .of an inspector of weights and measures, there is no requirement that such action be taken.</p> <p>6. When the appointment of an inspector of weights and measures has been duly made by the mayor, it is the duty of the city council to fix the salary of the appointee and provide for its payment, and they may be compelled by mandamus to perform this duty. It is immaterial that there is no money in the treasury from which an appropriation can be made, the city having the right to raise the requisite funds by taxation.</p> <p>7. The office of inspector of weights and measures is a municipal office and the mere fact that the inspector is required to report to the State does not change his status.</p>

<p>Appeal, No. 11, Oct. T., 1915,</p> <p>by defendant, from judgment of Superior Court, April T., 1914, No. 93, affirming sentence of Q. S. Allegheny Co., June Sessions, 1913, No. 280, in case of Commonwealth of Pennsylvania v. George F. Young.</p> <p>Appeal from the Superior Court.</p> <p>Indictment for loaning money at a rate of interest exceeding six per cent, in violation of the Act of June 5, 1913, P. L. 429, Section 1.</p> <p>The opinion of the Supreme Court states the facts. See 57 Pa. Superior Ct. 521.</p> <p>Verdict of guilty. The defendant was sentenced to pay a fine of $100 and costs. The Superior Court affirmed the judgment of the Court of Quarter Sessions. Defendant appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 199, Jan. T., 1914, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., ,Sept. T., 1912, No. 5491, for defendant n. o. ¥., in case of Hannah Israel v. Lit Brothers.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $7,000. The court subsequently entered judgment for defendant n. o. v.</p> <p>Error assigned was the judgment of the court.</p>

<p>Pleading — Statement of claim — Master and servant — Contracts of hiring■ — Indefinite term — Hiring at will — Construction—Presumption — Insufficient statement — Demurrer.</p> <p>1. In a contract of hiring where no definite period is expressed, the law will presume a hiring at will in the absence of facts and circumstances showing a different intention, and the fact that the hiring is at so much per week, or month, or year, will raise no presumption that the hiring was for such period.</p> <p>2. In an action to recover salary for the balance of a year for which plaintiff alleged that he had been employed, but before the expiration of which he had been dismissed, where no facts were alleged in the statement of claim from which the inference could be drawn that plaintiff had been employed for the year for which he claimed salary, other than the fact that he was employed at a yearly salary, the presumption that a hiring at will was intended applied, and the court properly entered judgment for defendant on demurrer to the plaintiff’s statement of claim.</p>

<p>Negligence — Railroads—Children playing on or nea/r trades— Contributory negligence of parent — Case for jury.</p> <p>1. Where a strip of ground in close proximity to railroad tracks has been used by the public as a way, and by children as & playground for many years, it is the duty of railroad employees, before moving cars standing on the tracks, to ascertain whether there are any persons so near the cars as to be injured thereby.</p> <p>2. In an action to recover damages for injuries to a seven year old child who was struck by the overhang of a freight car which had been standing upon a siding and which was suddenly moved by a shunting engine, the case is for the jury where there is evidence that the child was playing on defendants’ right of way immediately in front of her home, though not on the tracks, that such right of way had been used by the public as a. passageway and by children as a playground for many years with the knowledge and assent of defendant and that no signal or other warning was given before the cars were moved.</p> <p>3. In such case the child was too young to be guilty of contributory negligence, and the question of its father’s negligence was for the jury.</p>

<p>Replevin — Act of April 19, 1901, P. L. 88 — Issue—Leases of per. sonal property — Moving picture films — Wrongful seizure by lessor —Alleged conspiracy against defendant — Insufficient proof — Color of right in plaintiff — Prematurity of suit — Verdict for defendant— Measure of damages — Exemplary damages — Nominal damages.</p> <p>1. An issue is a disputed point, and the replevin Act of April 19, 1901, P. L. 88, intends that only the disputed averments of fact in the declaration and affidavit of defense shall make the issues to be passed on by the jury.</p> <p>2. Exemplary damages will be allowed in an action of replevin only in a rare case of misconduct, and when tbe evidence fails to show such misconduct tbe court should not permit exemplary damages. Such misconduct consists in tbe obvious perverting of tbe writ to tbe purpose of a wilful injury, with a full consciousness in tbe plaintiff that be has no claim, or in tbe taking out of tbe writ and claiming and detaining tbe property through malice or for tbe purpose of wanton vexation, or in special circumstances at tbe time of tbe service of tbe writ.</p> <p>3. As a general principle, where a plaintiff has a legal right to a particular remedy it matters not what motives may induce him to assert it.</p> <p>4. In an action of replevin to recover possession of motion picture films, the plaintiff filed a bond and obtained possession of the goods. It appeared from the pleadings and evidence that plaintiff was the owner of the films and had leased them to defendant upon terms which provided that the lease might be terminated by the lessor upon notice to the lessee under certain circumstances ; that the right of possession of the leased films should thereupon revert to the lessor “twenty days after notice of such termination” and after the lease had been rightfully terminated, but before the expiration of the twenty days, plaintiff replevied the goods. Defendant contended that the writ had been sued out by plaintiff in pursuance of a conspiracy in restraint of trade entered into by plaintiff and certain other manufacturers of films for the purppse of driving defendant out of business, but there was no proof of any special- combination to work against defendant or his interests. The jury found a verdict for defendant for the value of the goods and awarded damages for detention and exemplary damages. Held, that the evidence did not support the allegations of conspiracy; that as the title to the films was in plaintiff, the writ had not been issued without color of right; that as defendant had the right of possession, in the films at the time of their seizure under the writ, but no right to sublease them, his right was only of nominal value; and the record was remitted with directions to enter judgment for defendant for nominal damages only and costs. '</p>

<p>Appeal, No. 152, Jan. T., 1914, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1911, No. 1584, on verdict for plaintiff, in case of Leonard H. Smith v. Philadelphia Rubber Works Company.</p> <p>Trespass to recover damages for personal injuries. Before Bregy, P. J. •</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $7,000 which the court reduced to $4,000 and entered judgment on the reduced verdict. Defendant appealed.</p> <p>Errors assigned were rulings on evidence, instructions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 342, Jan. T., 1914, by defendant, from judgment of C. P. No. 5, Philadelphia Co., June T., 1914, No. 4861, for plaintiff, for want of a sufficient affidavit of defense, in case of General Motors Truck Company, a corporation, v. Philadelphia Paving Company, a corporation.</p> <p>Replevin for motor trucks.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made absolute the rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 137, Oct. T., 1914, by plaintiff, from judgment of C. P. Lawrence Co., Dec. T., 1910, No. 95, refusing to take off nonsuit, in case of Lena Darbrinsky v. The Pennsylvania Company. Trespass to recover damages for the death of plaintiff’s minor son. Before Porter, P. J. The opinion of the Supreme Court states the facts. See Darbrinsky v. Pennsylvania Co., 247 Pa. 177. The trial judge entered a compulsory nonsuit, which the court subsequently refused to take off.

<p>Municipalities — Cities of the third class — Act of June 27, 1913, P. L. 568, Article III, Section 3; Article XIX — Statutes—Construction — Initiative and referendum.</p> <p>1. Where under the provisions of the Act of June 27th, 1913, P. L. 568, providing for the government of cities of the third class, a city of the third class has annexed territory, it has no power either directly, or indirectly, to dissever such territory.</p> <p>2. In such case Article XIX of the said act, providing for the submission to the council of ordinances upon petition by the electors cannot be invoked to require the submission to the council of an ordinance repealing the annexation ordinance.</p> <p>3. The right granted by Article XIX of said act is an exceptional one concerning which the familiar rule obtains that he who relies upon an exception in the law must bring himself squarely and fully within it.</p> <p>4. The language of any portion of a statute must be understood in the light of the whole of it, giving due effect to every portion, and by reference from one to the other, explaining, and if need be, restraining the generality of' one so as not 'to conflict with the other, thus harmonizing all and assigning to each its proper meaning and legitimate field of operation.</p>

<p>Contracts — Obligation of contracts — Unlawful impairment by courts.</p> <p>1. It is not within the power of courts of equity to restrain secured creditors of an individual whose estate has been placed in the hands of a receiver from adopting and applying such legal remedies as are allowed them by the terms of their contract and at such time as that contract by its terms permits.</p> <p>2. While the legislature may not impair the obligation of a contract, it may modify the remedy; where, however, the parties contract concerning the remedy, the remedy becomes part of the obligation of the contract and any subsequent statute which affects the remedy, impairs the obligation thereof and is unconstitutional.</p> <p>3. The obligation of a contract which cannot be impaired by the legislature, cannot be impaired by the courts.</p> <p>4. Where a mortgage on real estate provided that in the event of default, scire facias might issue on the mortgage and be prosecuted to judgment and execution for the collection of principal, interest, fees, cost and expenses, and after the execution of such mortgage the court appointed a receiver for the mortgagor’s estate and enjoined secured creditors from proceeding on their securities, it was error for the court to refuse an application by certain mortgagees for leave to collect their debt from the mortgaged estate in the hands of the receiver in accordance with the terms of their contract.</p>

Appeal, No. 22, Jan. T., 1915, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1914, No. 501, for defendants on demurrer to answer to suggestion for writ of quo warranto, in case of Commonwealth, ex rel., District Attorney, y. Edward Jackson and Charles Burlingame. Suggestion for writ of quo warranto. Before Edwards, P. J. The opinion of the Supreme Court states the facts. The plaintiff demurred to the answer to the suggestion for the writ.

<p>Contracts — Written admission of liability — Evidence—Contradiction by parol — -Judgment for plaintiff n. o. v.</p> <p>In an action on a judgment note upon which judgment had been entered and subsequently opened, it appeared that defendant was the record owner of certain real estate belonging to plaintiff, and had executed an unrecorded declaration of trust in her favor, and that defendant had raised money upon the security of mortgages on the said property. Plaintiff claimed that defendant received for his own use the money so borrowed and that the judgment note had been given to secure the repayment thereof and the faithful performance of the declaration of trust. Defendant claimed that the money raised upon mortgage had been paid over to plaintiff but his testimony was contradicted by written statements which he had made corroborating plaintiff’s version of the transaction. The trial judge submitted the case to the jury which found a verdict for defendant upon which judgment was entered. Held, that in the absence of evidence that defendant had executed the writings through fraud, accident or mistake, he should not have been allowed to contradict them by parol and judgment was entered for plaintiff n. o. v.</p>

<p>Appeals, Nos. 72 and 73, Oct. T., 1915, by plaintiff and defendants, respectively, from decree of C. P. Allegheny Co., July T., 1914, No. 1973, in equity, awarding an injunction restraining erection of joint county and city building in case of Charles P. Trimble v. City of Pittsburgh and County of Allegheny, Joseph G. Armstrong, Mayor; Robert Swan, Director of Public Works, and James Brown, Deputy Controller of said city, J. Denny O’Neill, Stephen J. Toole and I. K. Campbell, County Commissioners of said County.</p> <p>Bill in equity for an injunction to restrain erection of joint county and city building and to restrain defendants from employing a supervising engineer to oversee the erection of such building. Before Shafer, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court awarded an injunction restraining defendants from erecting the building in the manner proposed, but refused to enjoin defendants from employing a constructing and supervising engineer to oversee the erection of the building. Plaintiff and defendants appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 50, Oct. T., 1915, by plaintiff, from decree of C. P. Allegheny Co., No. 1037, Jan. T., 1915, in equity, refusing an injunction in case of Ira H. Edmundson v. The Board of Public Education of the School District of the City of Pittsburgh, David B. Oliver, President; Taylor Allderdice, Vice-President; George W. Gerwig, Secretary; Eustace S. Morrow, Controller; Harry M. Landis, Treasurer; Marcus Aaron, et al., Constituting the Officers and Members of said Board of Public Education, and James L. Stuart, doing business as James L. Stuart Company.</p> <p>Bill in equity to restrain erection of high school building under contract alleged to have been entered into without proper competitive bidding. Before Swearingen, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Judgments — Judgment by confession — Opening judgments — Discretion of court.</p> <p>1. It is not an abuse of judicial discretion to open a confessed judgment entered upon a judgment note where the evidence shows mysterious and unnatural conduct on the part of the plaintiff, where no purpose, reason or motive for the action, of the judgment defendant in borrowing the money alleged to be the consideration for the note appears, but where it does appear that he was seventy-three years old at the time of the transaction and was shortly thereafter judicially determined to be of enfeebled intellect.</p> <p>Practice, Supreme Court — Assignments of error — Defective assignments.</p> <p>, 2. An assignment of error raising objections to depositions which does not show that such objections were raised in the court below will not be considered by the Supreme Court.</p>

<p>Equity — Cancellation of deed — Fraud and undue influence.</p> <p>A bill in equity praying that a deed executed by a mother to her son be declared null and void on the ground that at the time it was executed the grantor was in her eighty-second year, of failing memory, and weak in body and mind, and that the grantee had procured the execution of the instrument by fraud and undue influence, is properly dismissed where there is a finding based on competent evidence that the grantor at the time she executed the deed had sufficient mental capacity to understand what she did, and that the grantee had exercised no undue influence over her in inducing her to execute and deliver the instrument to him.</p>

Appeal, Nos. 38 and 39, Jan. T., 1915, by defendant, from judgment of O. P. Lackawanna Co., March T., 1913, No. 882, on case stated in case of County of Lackawanna v. P. F. Duffy. Case stated to determine right of the county treasurer of Lackawanna County to interest on county funds on deposit.

<p>Negligence — Railroads—Manufactory near railroad — Workman crossing tracks — Contributory negligence — Case for jury.</p> <p>In an action against a railroad company to recover damages for personal injuries sustained by an employee of a manufactory situated partly on either side of the right of way of the railroad company, the testimony of the plaintiff was alone sufficient to take the ease to the jury, where he testified that before starting to cross the track to a part of the plant on the other side, he saw the car which struck him a moment later standing still, and that he looked up the track, but neither saw nor heard any signal that the car was about to move, 'that he was in the act of crossing and while his foot was entangled in the track about five feet from the standing car, he heard the sudden crash of a train attempting to couple such car and was altnost instantly struck by it.</p>

<p>Appeal, No. 77, Jan. T., 1915, by Commonwealth, from judgment of O. C. Carbon Co., dismissing exceptions to decree in estate of Janet Rutherford Marshall, deceased.</p> <p>Appeal from appraisement of decedent’s estate for purposes of collateral inheritance tax. Before Barber, J.</p> <p>The court found that the decedent prior to the date of her death had taken up her residence in New York and that her personal estate was, therefore, not subject to the collateral inheritance tax in Pennsylvania. The court dismissed exceptions to its decree sustaining the legatee’s exceptions to the appraisement. The Commonwealth of Pennsylvania appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Constitutional law — Boroughs — Incorporation into cities of third class — Special election — Act of July 7, 1918, P. L. 694 — • Constitution of Pennsylvania, Art. XV, Sec. 1 — Construction— Municipal election — General election.</p> <p>1. The Act of July 7, 1913, P. L. 694, providing that a borough may become incorporated into a city of the third class when a majority of the electors shall have voted in favor of the same at a special election held for the purpose, is violative of Art. XV, See. 1, of the Constitution of Pennsylvania, providing that “Cities may be chartered whenever a majority of the electors of any town or borough, having a population of at least ten thousand, shall vote at any general election in favor of the same,” and a special election held for such purpose in pursuance of the provisions of such act, is void. The method of election prescribed by Art. XV, Sec. 1, of the Constitution, is exclusive.</p> <p>2. A municipal election held in November of odd numbered years, in pursuance of Amendments 6 and 8, to the Constitution of Pennsylvania, is a general election within the meaning of Article XV, Sec. 1, of the Constitution.</p> <p>3. The general subject matter of the Act of July 7, 1913, P. L. 694, is within the scope of the legislative power and the act violates the Constitution only in so far as it provides that the will of the electors as to the incorporation of a borough into a city of the third class, may be ascertained at a special instead of a general election.</p>

<p>Appeal, No. 341, Jan. T.,1914, by plaintiff, from decree of C. P. Northampton Co., July T., 1913, No. 1, in equity, dismissing bill to enforce an equitable assignment, in case of McClintic-Marshall Construction Company v. The Easton Trust Company, The Easton Trust Company, Trustee, the Easton Board of Trade, The Hawley Down-Draft Furnace Company, A. A. Chidsey, Trustee in Bankruptcy of The Hawley Down-Draft Furnace Company, Fred R. Drake, A. D. Chidsey and Henry G. Siegfried, Attomeys-in-Fact under the guaranty agreement with the Board of Trade, as well as Pledgees of the bonds issued under the Mortgage of The Hawley Down-Draft Furnace Company to The Easton Trust Company, Trustee; and W. J. Daub, Chester Snyder, B. E. James, Henry G. Siegfried, A. D. Chidsey, E. J. Bichards, J. Y. Bull and Allen Carpenter, Members of the Executive Committee or Council of The Easton Board of Trade.</p> <p>Bill in equity to enforce an alleged equitable assignment. Before Stewart, J.</p> <p>From the record it appeared that The Hawley DownDraft Furnace Company agreed with the Easton Board of Trade and certain banks that funds should be deposited with the Easton Trust Company for the payment of the plaintiff, a contractor, in consideration of which plaintiff agreed to waive the lien to which it would be entitled for work and labor in and about the construction of portions of the plant of The Hawley Down-Draft Furnace Company.</p> <p>Defendant’s tenth request for findings of fact and the answer thereto were as follows:</p> <p>“Tenth. The Easton Trust Company has not now and never has had in its possession and custody' any moneys furnished by the banks of the City of Easton out of funds to be provided in accordance with the agreement between The Hawley Down-Draft Furnace Company and the Easton Board of Trade whereby it could pay to the Mc-Clintic-Marshall Company any sum claimed to be due by the McClintic-Marshall Company from Hawley DownDraft Furnace Company.</p> <p>“Answer. I so find.”</p> <p>The court’s fourteenth finding of fact was as follows:</p> <p>“Fourteenth. That the Hawley Company did not pay the balance due, nor did it furnish any funds to The Easton Trust Company to pay this balance, nor did the Board of Trade furnish the funds to pay this balance, nor did the banks of the City of Easton furnish any funds to pay this balance.”</p> <p>The findings of the court were supported by evidence.</p> <p>The court dismissed the bill. Plaintiff; appealed.</p> <p>Error assigned, among others, was in dismissing the bill.</p>

Appeal, No. 158, Jan. T., 1914, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1912, No. 3346, on verdict for plaintiff, in case of J. Fred Dieterich v. The City of Philadelphia. Appeal from award of viewers in condemnation proceedings.

<p>Appeal, No. 178, Jan. T., 1914, by plaintiff, from decree of C. P. Bucks Co., Jan. T., 1913, No. 4, dismissing bill in equity for an accounting, in case of Joseph J. Broadhurst v. Horace G. Broadhurst.</p> <p>Bill in equity for an accounting. Before Ryan, P. J. The opinion of the Supreme Court states the facts. The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 179, Jan. T., 1914, by defendant, from judgment of C. P. Schuylkill Co., Nov. T., 1912, No. 178, on verdict for plaintiff, in case of George W. Case v. the Lehigh Coal and Navigation Company.</p> <p>Trespass to recover damages for personal injuries. Before Koch, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $6,195 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were answers to points and instructions to the jury.</p>

<p>Appeal, No. 257, Jan. T., 1914, by defendant, from decree of C. P. Lycoming Co., June T., 1913, No. 1, in equity, awarding an injunction, in case of Citizens Electric Company v. Lycoming-Edison Company.</p> <p>Bill in equity for an injunction.- Before Whitehead, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded a mandatory injunction directing defendant to remove certain obstructions from the right of way. Defendant appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Negligence — Townships—Roads—Trestles — Noises — Horses — Fright — Judgment for defendant n. o. v.</p> <p>In an action to recover damages for personal injuries sustained by the occupants of a carriage in consequence of the fright of their horses, it appeared that defendant township had permitted the erection of a trestle over the road upon which the carriage was being driven, that a mine railroad was supported in part by the trestle and that a rope used for drawing cars from the mine fell upon the trestle producing a loud noise and causing the fright of plaintiff’s horses. The negligence charged was in permitting the maintenance of the trestle and the rope over the highway in such a manner that loud noises might be produced thereby. The trial judge left the case to the jury which found verdicts for plaintiffs upon which judgment was entered. Held, that the township could not be held responsible for the negligent operation of the rope even though it permitted the erection of the trestle and had notice that at times the rope made a loud noise, that the negligence, if any, was that of the mining company’s servants, and judgment n. o. v. entered for defendant.</p>

<p>Contracts — Equity—Specific performance — Insufficient evidence.</p> <p>1. In proceedings in equity for the specific performance of a parol contract for the sale of land, the evidence must define the boundaries, indicate the quantity of land, fix the amount of consideration, establish the fact that possession was taken in pursuance of the contract at or immediately after the time it was made and show such performance or part performance by the vendee as cannot be compensated in damages and such as to make rescission of the contract inequitable and unjust.</p> <p>2. In a suit in equity to compel defendant to convey' to plaintiff certain real estate, plaintiff alleged that he had furnished defendant with money to purchase the land under an agreement that the title thereto should be conveyed to plaintiff, but that defendant had taken title and refused to convey as agreed. Defendant denied the existence of the agreement and averred that the money received from plaintiff was a loan for which he had given a promissory note and that it was not used to purchase the property. ' Plaintiff’s allegations were supported by his own testimony, corroborated by that of his wife. Defendant’s allegations were corroborated by a writing of the date on which he received the money. The lower court awarded the relief prayed for. Held, that the written evidence was conclusive of the fact that the money received by defendant from plaintiff was a loan, that by the clear weight of the evidence plaintiff had failed to establish a parol contract by which defendant received the money from him for the purchase of the property in question, or any contract by which it was agreed that any money should be furnished for the purchase of the property, and the decree was reversed.</p>

<p>Practice, O. P. — Mandamus — Ministerial act — Petition — Defects in substance — Motion to quash — Act of June 8, 1898, P. L. 845.</p> <p>1. While mandamus lies to compel the performance of a ministerial act, the writ will not issue where a body clothed with deliberative and discretionary powers has acted, to compel a revision or modification of its decision.</p> <p>2. A motion to quash a writ.of alternative mandamus is properly granted where the motion calls attention to defects in substance in the petition for the writ, as the Mandamus Act of June 8, 1893, P. L. 345, expressly provides that defects in substance in an alternative writ may be taken advantage of at any stage of the proceeding.</p> <p>Mines and mining — Board of mine examiners — Act of June 8, 1901, P. L. 585, Art. II, Sec. 5 — Mine inspectors — Certificate of qualification — Discretion.</p> <p>3. The board of mine examiners, constituted by the Act of June 8, 1901, P. L. 535, is vested with discretion to issue certificates of qualification to mine inspectors and an applicant, who after examination, has been refused a certificate, cannot compel the board by mandamus to issue such certificate, where he does not allege any fraud or conspiracy to deprive him of his rights and particularly where he does not allege that he correctly answered ninety per centum of the questions propounded in his written examination or that he passed a successful examination as required by the act.</p>