Volume 249 — Pennsylvania State Reports

<p> Pleading—Statement of claim—Trespass—Ncgligence.—Defective averments—Demurrer. </p> <p>1. In a suit in trespass, especially where the charge is negligence arising out of alleged acts of omission, the grounds of complaint must be stated concisely and distinctly in the declaration, so that the issues may be formed by a simple plea of “not guilty”; to do this, facts must be averred sufficient to show that a duty required by law has been breached, or neglected, by the defendant, and plainly to indicate the causal connection between this breach or neglect and the injury complained of. The declaration must give the defendant clear and exact information of the charges against him, and, although it need not anticipate defenses or aver mere underlying evidential facts, yet, the ultimate facts relied upon to show negligence must appear in unequivocal language, and these facts must be such as, standing alone, if not controverted, would entitle the plaintiff to a verdict in his favor.</p> <p>2. Where in an action to recover damages for the death of plaintiffs’ son, who was killed in a mine fire, the statement of claim was apparently drawn upon the theory that defendant employer was an insurer of the safety of his employees and where no facts were alleged showing, or justifying an inference, that defendants’ lack of due care in any of the several instances set forth in the statement actually caused the particular injury complained of, the statement was defective in substance and a demurrer .thereto was properly sustained.</p>

<p>Appeal, No. 205, Jan. T., 1914, by John W. Baylor, from decree of O. C. Lackawanna Co., Series C., 1901, No. 652, in Estate of William Baylor, Deceased.</p> <p>Petition of executor for citation to show cause why lands described in last will and testament of William Baylor and held in trust by John W. Baylor and W. W. Baylor should not be sold at public sale and that proceeds thereof be paid to the petitioner, who was executor of the last will and testament of Margaret C. Baylor, deceased. Before Sando, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court ordered that a writ of execution in the nature of a fieri facias be issued in favor of the petitioner against respondents for the sum of $5,501.99. John W. Baylor appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 305, Jan. T., 1914, by defendant, from judgment of C. P. Lackawanna Co., Match T., 1911, No. 954, in casé of Micháel O’Boyle, John A. O’Boyle, James J. O’Boyle, Margaret Clevin, Ann Duggan and Nettie Healey v. Jane Kelly and William Kelly.</p> <p>Ejectment to recover lands in Lackawanna County. Before Newcomb, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The following questions were submitted to the jury and answered as follows:</p> <p>1. Did Frank J. O’Boyle go into possession by consent of his parents with the mutual understanding that he was to have the free use of the property as a building site for the location of his business, but without any definite understanding as to how long such use should continue? Answer: Yes.</p> <p>2. Did he at any time thereafter do or say anything which would bring home the unequivocal notice to his mother that he claimed to be the owner of the property? Answer: No.</p> <p>3. If so, in what year was it and what was the occasion? Answer: -.</p> <p>The trial judge thereafter directed a verdict for plaintiff upon which judgment was entered. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p> Practice, G. P.—Trials—Evidence—Witnesses—Gross-examination—Improper remarks of counsel—Harmless error—Verdict. </p> <p>1. When a subject is introduced by one party on the cross-examination of a witness of his opponent, the latter may be afforded the right to follow it up with questions which would not be permissible to him in chief.</p> <p>2. Where on the trial of an appeal from an award of viewers in condemnation proceedings, a witness called by defendant to testify as to the market values, was asked on cross-examination whether he had not demanded more than $5,500 from defendant city for damages to his property, and on being -further questioned replied that he asked for $9,000, it was not error to permit such witness cn redireet-examination to state that he recovered $5',500 damages. The amount of the claim having been elicited by the plaintiff, he could not be heard to object that the facts in relation thereto should be fully brought out so that no false impression might be left in the minds of the jury.</p> <p>3. Where in such case the city solicitor in his opening address referred to a letter written by plaintiff which was not admissible in evidence, and was subsequently excluded, and where there was no motion to withdraw a juror and continue the case, and although in excluding the letter, the court made a remark which plaintiff claimed was prejudicial to his case, he did not make any objection, or take any exception thereto, no reversible error was committed.</p> <p>4. The court on appeal will not set aside a verdict in a land damage case because it is less than the lowest estimate of damages given by the witnesses for defendant, nor on the theory that the jury did not allow damages for delay in payment where there was a general verdict and it was impossible to say whether they had allowed such damages, or if they made no allowance, it was because they deemed none necessary.</p>

<p>Appeals, Nos. 347 and 348, Jan. T., 1914, by plaintiff, from judgment of C. P. Northampton Co., Nov. T., 1912, Nos. 43 and 44, refusing to take off nonsuit, in case of Mary S. Wasser v. County of Northampton.</p> <p>Trespass for death of plaintiff’s husband and son. Before Stewart, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court entered a nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 115, Jan. T., 1914, by plaintiffs, from judgment of C. P. Philadelphia Co., No. 5, Dec. T., 1912, No. 4168, of nonsuit in case of Albert S. Wasserman, to the use of Philip Arnold and Albert S. Wasserman v. Alfred W. Fleisher.</p> <p>Assumpsit for breach, of warranty. Before Martin, J.</p> <p>From the record it appeared that the defendant, a member of a firm of real estate brokers, had procured the sale of certain real estate to the plaintiff, Albert S. Wasserman, and his partner, Philip Arnold, at a price of $10,976.28, and that in the course of the negotiations the defendant represented to the plaintiff that the property when altered would have an annual net income value of $1,045 and a sale value of $50,000 within two years’ timé, which representation was also made to the other use-plaintiff, in order to procure his cooperation; that subsequently and before the consummation of the sale, the defendant wrote to the plaintiff as follows: “I shall take pleasure in calling upon you on Monday morning, relative to this property, and beg to assure you again that the property in our estimation is the cheapest purchase that we have made since we are in the business, and I hold myself personally responsible to you for the fulfillment of all the claims I have made for this property.” Subsequently a contract of sale was executed by the defendant’s firm with Wasserman and Arnold and thereafter a conveyance was made to the latter as cotenants, but although put in the hands of the defendant’s firm immediately it produced no income and no sale could be made within two years.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 249, Jan. T., 1914, by defendant, from judgment of C. P. No. 5, Philadelphia Co., June T., 1910, No. 2450, on verdict for plaintiff in case of Salvatore Cacchione v. John Hagan, trading as John Hagan & Company.</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>Verdict for plaintiff for $4,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Contracts—Construction—Ownership'■ of tools—Subcontractor— Replevin—Damages.</p> <p>1. A provision in a contract between a contractor ánd a municipality, that tbe former must furnish tools and machinery for the completion of the work, does not vest in the city title to the machinery furnished by the subcontractor on the work.</p> <p>2. Where in such case the subcontractor brought an action of replevin to recover tools and machinery detained by the city, under a claim of ownership, he was entitled to recover damages for the detention of his property including the value of the use thereof during the period of detention, but should not have been allowed to recover as damages more than twice the value of the goods for a detention of eleven months.</p> <p>3. The measure of damages for detention of rentable property is the original rental value which covers compensation for deterioration by use; if the property detained was not used, the value of deterioration by use must be deducted from the rental value.</p> <p>4. The measure of damages for detention of property by nature not rentable seems to be interest and depreciation in value, unless where there have been particular circumstances of fraud, oppression or wrong in the taking or detention of the property when punitive damages may also be allowed in all cases.</p> <p>5. Additional damage for delay in payment will not be allowed when plaintiffs waited over six years without asserting their rights by prosecuting their claim to judgment.</p> <p>6. An amendment which merely introduces an additional element of damage drawn out of the same circumstances, may be allowed at any time, as it does not introduce a new cause of action.</p> <p>' 7. An amendment to the statement making a further claim for damages for detention of the property was properly allowed, but a claim for damages for delay in payment cannot be first introduced by amendment more than six years after the original statement was filed.</p> <p> Municipal corporations—Liability for torts of agents. </p> <p>8. Where a municipal corporation undertakes to construct and operate a filtration plant, for the purpose of supplying water to. its inhabitants, it is exercising a business, as distinguished from a governmental function and the maxim respondeat superior applies to the acts of its officers and agents in exercising such function. There was no ground, therefore, for contending in such case that the defendant city was not liable for damages for the detention of the tools and machinery of the plaintiff.</p> <p> Appeals—Practice, Supreme Court—Questions not raised in court below. </p> <p>9. An appellate court will not review a case on a theory different from that upon which it was tried by the court below, nor. will it consider questions which were not raised in the lower court, but were argued for the first time on appeal.</p>

<p>. Practice, O. P.—Affidavits of defense—Affidavits by executors— Pules of court.</p> <p>Where the rules of court provide that an affidavit of defense made by persons sued in a representative capacity need only state the facts admitted to be true and that the affiant “believes there is a full and legal defense to the remainder,” an affidavit of defense made by an executor in compliance with this rule is sufficient to prevent judgment, notwithstanding the allegations in the statement of claim, from which the inference could be drawn that the executor had made a new promise after the death of decedent where there was no averment of any consideration for such promise.</p>

<p> Wills—Construction—Gift over—Meaning of “children ” </p> <p>1. It is a well established rule of construction that the word children in a will does not include grandchildren, unless it appears from the context to have been so intended by the testator, or such meaning is necessary to carry out his manifest intent.</p> <p>2. Where a testator bequeathed his residuary estate to his seven children in equal shares and provided that in case any of them should die without leaving issue surviving, or if leaving issue, the latter should die under the age of twenty-one years without issue, the share of the one so dying should go to his “surviving children, residuary devisees, their heirs, executors, administrators and assigns forever, in equal parts, or shares,” the Orphans’ Court properly held that the gifts over were in favor of the surviving children only and did not include the issue of deceased children and therefore that releases could lawfully be executed by the surviving children of the contingent interests which each had in the estate of the others and that such releases would bind grandchildren, or other remote issue of the testator.</p>

<p> Wills—Residuary devises—Vested and contingent remainders. </p> <p>1. ' When a testator bequeathed a sum of money in trust for the benefit of a son for life and provided that upon the death of the life tenant the fund should become part of his residuary estate, and further bequeathed the residue to seven other children and provided that in case of the death of any of such children without surviving children or issue the share of such child “shall go to and I do hereby give, devise and bequeath the same unto my surviving children, residuary devisees, their heirs, etc., in equal parts and shares,” the shares in the trust fund of children dying without issue vested immediately in the surviving children; the period of vesting was not postponed until the termination of the life estate and upon the death of the life tenant the shares of such children dying without issue should be distributed among testator’s living children and the issue of deceased children who were living at the death of the children dying without issue.</p> <p> Executors and administrators—Commissions—Waiver. </p> <p>2. Where in such case it appeared that no commissions had been claimed on the principal of the estate in accounts previously filed and that during eighteen years no commissions had been claimed on the income of the trust fund, the court made no error in concluding that the right to commissions had been waived and. properly refused to allow the surviving executor commissions on the principal of the trust fund.</p> <p>Equity—Practice, Supreme Court — Appeals — Assignments of error—Defective assignments—Paper boolcs.</p> <p>S. On appeal from a decree of the Orphans’ Court assignments of error are defective where they do not show any exceptions filed in the court below, or any action of the eouTt upon such exceptions and where the final decree is not set forth or assigned for error.</p> <p>4. An appellant’s paper book is defective which does not contain the entire adjudication of the auditing judge, or a copy of the executor’s account, or the evidence, although it appears that evidence must have been taken on a question involved in the appeal.</p>

<p>Evidence — Statements to attorney — Confidential communications.</p> <p>1. Where an attorney has served simply as an intermediary between the widow and daughter of an intestate decedent, in the settlement of a dispute regarding decedent’s real estate, he may testify as to the terms of the agreement made between the parties in proceedings by the daughter subsequent to the mother’s death to recover a part of the rental value of such real estate from her deceased mother’s estate. Such evidence is not open to the objection that it would be a disclosure of confidential communications.</p> <p>2. Where in such case it appeared that the widow had occupied the property after her husband’s death under a family arrangement between herself and her daughter which gave the widow the occupancy of the' property rent free during her life, the Orphans’ Court made no error in disallowing the claim.</p>

Appeal, No. 208, Jan. T., 1914, by George H. Brooks, from decree O. C. Philadelphia Co., Oct. T., 1909, No. 716, dismissing exceptions to adjudication in Estate of Henry Brooks, deceased. Exceptions to adjudication. Before Anderson, J. The opinion of the Supreme Court states the facts. The court dismissed the'exceptions in an opinion by Gest, J. George H. Brooks appealed. Error assigned, among others was in dismissing the exceptions.

Appeal, No. 67, Jan. T., 1914, by defendant, from judgment of C. P. Chester Co., Jan. T., 1912, No. SI, on verdict for plaintiff, in case of Mary S. Updegrove v. Philadelphia & Reading Railway Company. Trespass to recover damages for the flooding of plaintiff’s lands. Before Broomall, J., specially presiding. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $1,994 and judgment thereon. Defendant appealed.

Appeal, No. 16, Jan. T., 1915, by defendant, from judgment of C. P. Chester Co., Aug. T., 1914, No. 112, on verdict for plaintiffs in case of John W. Dunne, by his father and next friend, Patrick J. Dunne, and Patrick J. Dunne in his own right, v. Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Butler, J. The opinion of the Supreme Court states the facts.

<p> Municipalities—Gouncilmen—Resignation—Election of successor-invalid election. </p> <p>A borough councilman, who had resigned, voted for a. resolution accepting his resignation and appointing a Successor. The resolution was passed by a majority of .one.. In quo warranto proceedings to determine the right of the person named in the resolution as such councilman’s successor to hold office; the lower court held that the election was valid. Held, (1) that until the retiring councilman bad ceased to be a member by tbe acceptance of bis resignation, a successor could not be elected, or appointed by tbe council; (2) that if his resignation was accepted by tbe resolution, bis vote must be excluded in determining whether tbe person named therein as bis successor was elected; (3) that by the exclusion of such councilman’s vote a tie would result, and that defendant’s election, therefore failed.</p>

<p>Appeal, No. 325, Jan. T., 1914, by plaintiff, from judgment of C. P. Schuylkill Co., March T., 1914, No. 187, of ouster in quo warranto proceedings,' in case of Commonwealth of Pennsylvania, ex rel., C. A. Whitehouse, District Attorney of Schuylkill County, v. T. W. Raudenbush.</p> <p>Suggestion for writ of quo warranto to determine defendant’s right to hold office as water superintendent of a borough.</p> <p>Demurrer to answer to suggestion. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court overruled the demurrer. Plaintiff appealed.</p> <p>Error assigned was in overruling the demurrer.</p>

Appeal, No. 351, Jan. T., 1914, by William S. Huber, from order of O. C. Lycoming Co., Sept. T., 1898, No. 31, refusing citation in Estate of Milton Huber, Deceased. Petition for citation. Before Whitehead, P. J. The opinion of the Supreme Court states the case. The court refused the petition. Petitioner appealed. Error assigned was in refusing the petition.

<p>Appeal, No. 51, Jan. T., 1914, by plaintiff, from judgment of C. P. Lackawanna Co., Nov. T., 1914, No. 343, dismissing rule for judgment for want of a sufficient affidavit of defense in case of Hassam Paving Company v. Peter Stipp.</p> <p>Assumpsit for vendor’s breach of executory contract for the sale of brick.</p> <p>Buie for judgment for want of a sufficient affidavit of defense. Before Edwards, 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 was in discharging the rule for judgment for want of sufficient affidavit of defense.</p>

<p>Beal property—Coal land—Separation of surface and minerals— Deeds—Exceptions—Conveyance of surface without right of supiport—Injury to surface from mining operations—Trespass—Non-suit.</p> <p>In an action in trespass by tbe owner of a super-incumbent estate against the owner of an underlying mineral estate for damages to a house and lot resulting from alleged disturbances in the surface caused by defendant’s mining operations, a nonsuit is proper where it appears that the plaintiff’s title was subject to a reservation of “all the coal and minerals beneath the surface of the premises, with the right to mine and remove the same without incurring in any event whatsoever any liability for any injury or damages which may be caused or done to the surface of the said premises, or to any buildings or improvements thereon”; that the defendant was a legal owner of the mineral rights under the land, together with the privileges and exemptions as reserved by plaintiff’s grantor, and where it was not alleged that the defendant was guilty of any negligence in the manner in which said minerals were removed.</p>

<p>Appeal, No. 390, March T., 1915, by plaintiff, from judgment of C. P. Lackawanna Co., Jan. T., 1914, No. 124, refusing to take off compulsory nonsuit in case of Margaret Kirwin v. Delaware, Lackawanna and Western Railroad Company.</p> <p>Trespass for personal injuries. Before Newcomb, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 386, Jan. T., 1914, by defendant, from judgment of C. P. Berks Co., Aug. T., 1913, No. 110, on verdict for plaintiff in case of Kate A. Kunkel v. Allentown Portland Cement Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Wagner, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict,for plaintiff for $3,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and the refusal of the court to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 87, Oct. T., 1915, by James H. EÍeath and H. A. Baldwin, defendants, from judgment Of O. P. Westmoreland Co., May T., 19l4, No. 189, of ouster in quo warranto proceedings in case of Commonwealth: of Pennsylvania, ex relatione, Charles E. Weaver, v. David Clark; E. E. Graham, Daniel A. Long, Jamies H. Heath, H. A. Baldwin ánd’Alex Logan.</p> <p>Quo warranto to oust from office tlie defendants and to declare that relator was entitled to hold the office of borough councilman. Before Copeland, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case,</p> <p>The jury, by direction of the court, found that the relator was duly appointed to office, that defendants, James H. Heath and H. A. Baldwin were holding office without lawful authority and that the other four defendants were duly elected and were legally holding office and judgment was entered accordingly.</p> <p>Error assigned inter alia was the instruction to the jury directing the verdict as found.</p>

<p>Practice, O. C.—Decedent’s estates—Adjudication of account— Distribution of funds—Bill of review—Proof of fraud—Act of October 8, 1840, P. L. 1 (1841).</p> <p>1. Where a fund has been distributed in accordance with the terms of a decree of the Orphans’ Court, a' bill of review will not lie as a matter of right, but only where fraud has been shown to have induced the decree, this latter being an indispensable condition. Upon consideration of such a hill of review, therefore, it is error for the court to undertake to decide the merits of the controversy until after it has been decided that fraud has been sufficiently alleged and proven to give it jurisdiction. Where there is no finding of such fraud, the inquiry as to the construction of the will is premature.</p> <p>2. The confirmation of an auditor’s report making distribution of the fund in the hands of an administrator is a judicial decision determining finally, except as appealed from, the meaning and legal effect of the will touching the fights of parties to take thereunder. Notwithstanding no appeal had been taken from the adjudication, it still remains open for review and correction, but only on certain well defined conditions. . Before a fund of this character has been paid out, it is in the power of the court to grant a review for the correction of any mistakes shown to have been made, as required under the Act of October 13,1810, P. L. 1 (1811). Where, however, the fund has been paid out in accordance with the terms of decree, a bill of review will not lie as matter of right, but only where fraud has been shown to have induced the decree, this latter being an indispensable condition.</p>

<p>Appeals, Nos. 97 and 98, Oct. T., 1915, by defendants, from judgments of C. P. Allegheny Co., April T., 1913, No. 1313, Docket A., and No. 1318, Docket B., for plaintiff in cases of Dominion Trust Company (formerly known as The Guardian Trust Company of Pittsburgh), a Corporation of the State of Pennsylvania, James L. Adams, Receiver, v. Iva G. Ridall and S. H. Ridall, her husband.</p> <p>Sci. fa. sur mortgages. Before Carnahan, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdicts for plaintiff by direction of the court for $12,088.33 and $3,173.18 and judgment thereon. Defendants appealed.</p> <p>Errors assigned were in directing verdicts for the plaintiff and in refusing to enter judgment for the defendants n. o. v. and various rulings on evidence.</p>

<p>Appeal, No. 237, Jan. T., 1914, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1913, No. 967, on verdict for plaintiff, in case of Arthur N. Murray v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $20,000, which the court subsequently reduced to $14,000 and entered judgment on the verdict as reduced. Defendant appealed.</p> <p>Error assigned, among others, was in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 333, Jan. T., 1914, by defendant, from judgment of C. P. Chester Co., Aug. T., 1913, No. 114, on verdict for plaintiff in case of Iford L. Cunningham v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, for $5,500, which the court reduced to $4,000 and entered judgment upon the reduced verdict. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 398, Jan. T., 1915, by defendant, from conviction and sentence of O. & T., Cumberland Co., Sept. Sess., 1914, No. 27, in case of Commonwealth of Pennsylvania v. Max Morgenthau.</p> <p>Indictment for murder. Before Sadler," P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The defendant pleaded guilty. The court after hearing evidence determined the crime to be murder of the first degree and sentenced defendant to death. Defendant appealed.</p> <p>Error assigned, among others, was the judgment of the court.</p>

<p>Mandamus—Act of June 8, 1898, P. L. 845, Sec. 4—Relator— Attorney general—Parties—State highway commissioner—Auditor general—Limit of discretion—Words and phrases “shall" and “may."</p> <p>1. Mandamus proceedings to compel the auditor general to draw a warrant upon the state treasurer for the payment of a hill as specified in a requisition of the state highway commissioner,'and to compel the state treasurer to pay said warrant and charge the amount thereof against the fund received from registration and license fees for automobiles under the Act of July 7, 1913, P. L. 672, are properly brought at the relation of the attorney general; the provisions of the Mandamus Act of June 8, 1893, P. L. 345, Sec. 4, that when the enforcement of a public duty is sought the proceeding shall be prosecuted on the relation of the attorney general, but that when the duty affecting a particular public interest of the State is sought “it shall be on the relation of the officer entrusted with the management of such interest” do not necessarily require that such proceedings should be instituted by the state highway commissioner. The word “shall” as used in the' last clause of said section, is permissive and is used in the sense of “may.”</p> <p>2. In Such case the auditor general and state treasurer are properly joined as defendants; unless they were so joined the relator would have no effective writ.</p> <p>3. While the .auditor general has the right to examine bills presented for his approval before approving the same and drawing his warrant for the amount thereof, and may call for such information as may reasonably be necessary to satisfy his mind that the debt was lawfully created, he cannot arbitrarily refuse to perform the duty, no matter by what law that duty may be imposed; and where he refuses to perform a duty on the ground that such duty is unconstitutionally imposed upon him, performance thereof may be compelled by mandamus, if it appear that the act imposing the duty is constitutional.</p> <p> Constitutional law—Constitution of Pennsylvania, Art. Ill, Sects. 8 and 15—Act of July 7,1918, P. L. 678, Sec. 10—Validity. </p> <p>4. Section 10 of the Act of July 7, 1913, P. L. 672, relating to and regulating motor vehicles, which provides that moneys derived from registrations and license fees, under the provisions of the act, shall be available for the use of the State Highway Department for the pujóse of assisting in the construction, maintenance, improvement and repair of state highways, is germane to the. subject expressed in the title of the said act and does not violate Sec. 3 of Art. Ill of the Constitution of Pennsylvania.</p> <p>5. Said section, imposing certain duties upon the auditor general and state treasurer with respect to the fund derived from the registration and licensing of automobiles, is not thereby rendered unconstitutional; while the auditor general and state treasurer are constitutional, officers, their duties are fixed, not by the Constitution, but by the legislature. The fact that the duties of the auditor general and state treasurer were defined prior to the adoption of the present Constitution, does not prevent the legislature from altering them.</p> <p>6.'Said section does not violate Sec. 15 of Article III, of the Constitution, providing that the general appropriation bill shall embrace nothing but appropriations for the ordinary expenses of the executive, legislative and judicial departments of the Commonwealth, interest on the public debt and for the public schools; and that all other appropriations shall be made by separate bills, each embracing but one subject. This provision of the Constitution was intended only to apply to the biennial appropriations made by the legislature out of the general revenues of the Commonwealth; and it has no application to a fund created for a special purpose and dedicated by the act under which such fund is to be created to a particular use. The appropriation of the fund so created continues as long as the act which dedicates it to the particular use remains in force.</p>

<p> Guardian and ward—Sale of ward’s real estafe—Acceptance of notes in payment—Nonpayment of notes—Liability of guardian for purchase-money. </p> <p>A guardian was authorized to sell his ward’s real estate upon his petition setting forth under oath that he had been offered $1,800 therefor, and that said price was better and higher than could be obtained at public sale. The guardian made return stating that he had sold the property for $1,800 and the deed which was acknowledged in open court certified to the receipt of such amount as having been paid by the purchaser to the guardian at and before the execution and delivery thereof. After the ward became of age, the guardian filed an account charging himself with only $1,200, the amount of promissory notes which he stated he had received from the purchasers in payment and claiming credit for the amount of said notes as being uncollectible. The Orphans’ Court refused to surcharge the guardian with the purchase-money of the property on the ground that he had acted in good faith. Held, reversing the Orphans’ Court’s decree, that the guardian should be surcharged with the purchase-money of the property with interest from the date of sale.</p>

<p>Appeal, No. 44, Jan. T., 1915, by defendant, from judgment of C. P. Lackawanna Co., Nov. T., 1911, No. 777, on verdict for plaintiff, in case of Edward Krutlies, by Ms mother and next friend, Dominica Krutlies v. Bulls Head Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Maxwell, P. J., specially presiding.</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>Appeal, No. 62, Oct. T., 1914, by defendant, from sentence of O. & T., Westmoreland Co., Nov. T., 1914, No. 62, on verdict of guilty of murder of the first degree in case of Commonwealth of Pennsylvania v. H. E. Filer.</p> <p>Indictment for murder. Before McConnell, J.</p> <p>Prom the record it appeared that:</p> <p>On the night of August 28th, 1914, Jacob K. Blank, an automobile hackman, left the Standard Garage, Greens-burg, with one passenger, at about 10 o;clock p. m.</p> <p>He was found later badly injured and beaten on the head, apparently with a blunt instrument, at about 4 o’clock a. in., August 29tk, by two watchmen, along the roadside about three-quarters of a mile from Greensburg, and near the Hempfield Coal Company’s Slope. He was brought to the Westmoreland Hospital at Greensburg, and died on August 29th, at 6 o’clock p. m., without giving the name of his assailant.</p> <p>The pockets of the clothes of the injured man were turned inside out and some of the contents had been taken and carried away. An iron bolt about a foot long, wrapped in paper, was found not far from the place where the injured man was lying when found. Some three days later a pocket book was found along the Pennsylvania Railroad about one mile in a westerly direction from the scene of the crime.</p> <p>Edward Miller, a negro tramp, testified that he met the defendant along the Pennsylvania Railroad, on the afternoon of August 28th, some three or four miles west of the scene of the crime; that the defendant suggested to him the commission of a crime similar to the holding up of the deceased, and showed a package similar to the bolt found at the scene of the crime.</p> <p>Emmet Stivers, an ex-convict, testified that he met the defendant at the Arch at Brushton avenue, Greensburg, on the afternoon of August 28th, 1914, and that the defendant suggested to him the commission of a robbery similar to the holding up of the deceased, and that the defendant had a package under his arm similar to the package containing an iron bolt, found at the scene of the crime.</p> <p>James Whittaker identified the defendant as the passenger who left the garage in an automobile with the deceased the night of August 28,1914.</p> <p>Verdict of guilty of murder of the first degree on which sentence of death was passed. Defendant appealed.</p> <p>Errors assigned were as follows:</p> <p>The court erred in answering defendant’s second point, which point and answer are as follows:</p> <p>Second: The burden of proof that the defendant, H. E. Filer, is guilty of the crime alleged in the bill of indictment, is on the Commonwealth and that burden never shifts.</p> <p>Answer: That is true, in some sense a setting up of an alibi is an affirmative defense, yet it relates to the case of the Commonwealth, after you have considered all there is about that along with the other evidence the question still comes home to you whether you can see beyond a reasonable doubt whether the defendant is guilty.</p> <p>The learned court erred in his charge in emphasizing the words “set up” and “of course” in the sentence [We have a defense set up here that of course denies that the defendant committed this offense].</p> <p>The learned court erred in emphasizing the testimony of James Kenney about the defendant’s arm being wrapped up [that his arm was wrapped up, and that he showed some money, forty dollars, and some more, perhaps ten dollars, and said it was the easiest money he ever made and so on. The deduction that the Commonwealth desires you to draw from is that he had possibly been injured in the perpetration of this offense.].</p> <p>The charge of the court was inadequate in that the learned court failed to call the attention of the jury to the fact that Alex Walker testified that he saw the defendant about 11 o’clock on the evening of August 28, 1914, and did not notice that there was anything wrong with the defendant’s hands, and that they were not wrapped up.</p> <p>The charge of the court was inadequate in that the learned court failed to call the attention of the jury to the fact that it was the uncontradicted testimony that both the deceased and the defendant were well acquainted, and that the deceased, when he was conscious and described the assault made on him, did not name the defendant as his assailant.</p> <p>The learned court erred in that the charge as a whole was not a fair and adequate presentation of the case.</p> <p>The learned court erred in refusing to grant the defendant a new trial notwithstanding the evidence of the misconduct of the jury in visiting the Arch at Brushton avenue, Greensburg, after testimony in the case was closed and without permission of the court or notice to the defendant or his counsel, which things were made known to the court by depositions taken subsequently thereto. (See affidavit of James Caldwell, one of the officers in charge of the jury, also the affidavits of jurors Frank McDowell, B. F. Kuhn, West McCoy and Alvin Buckley.)</p> <p>The court erred in not finding that the defendant had been prejudiced by the misconduct of the jury before referred to, and that he, the defendant, had been thereby deprived of the fair trial he is entitled to.</p> <p>The court erred in refusing the admission of the affidavits of jurors as to their misconduct.</p> <p>The learned court erred in not finding that the constitutional rights of the defendant to be heard by himself and counsel, to demand the nature and cause of the accusation against him and to meet the witnesses face to face, were violated by the unauthorized view of certain premises by the jury.</p>

<p>Appeal, No. 254, Jan. T., 1914, by Katharine B. Stocker, defendant, from judgment of C. P. Berks Co., Sept. Term, 1910, No. 6, on verdict for plaintiff in case of Samuel Goldsmith and' Solomon Goldsmith, executors of Isaac .Goldsmith, v. J. Henry Stocker and Katharine B. Stocker.</p> <p>Assumpsit on a promissory note. Before Endlich, P. J.</p> <p>From the record it appeared that some time prior to the date of the note in suit, J. Henry Stocker and J. Jacob Longenderfer, for the purpose of raising $5,000, for an enterprise in which they were about to engage as partners, made two notes each for $2,500, which they induced Isaac Goldsmith to endorse, upon their promise that if they were successful they would give him a share in the enterprise. To this transaction, Katharine B. Stocker, the appellant, defendant below, was a stranger.</p> <p>One of these notes, originally discounted in the Never-sink Bank, was subsequently carried in the Reading National Bank; the other was discounted in the Berks County Trust Company. According to the understanding of all parties to these notes, the former was considered Longenderfer’s part of the indebtedness, the other Stocker’s. The note in suit was given to the plaintiff by J. Henry Stocker and Katharine B. Stocker, his mother, the appellant, as collateral security for the note then in the Reading National Bank. On the back it was marked: “For note Reading National Endorsed Isaac Goldsmith, J. Jacob Longenderfer and J. Henry Stocker” —this memorandum having been put upon it by J. Henry Stocker prior to its delivery to the plaintiff.</p> <p>Subsequently, to wit, on October 20, 1908, the note in the Reading National Bank was paid by the giving of a new note in a larger amount accompanied by certain mortgage security furnished by Longenderfer, and thereupon the liability of the appellant on the note in suit was discharged.</p> <p>On the evening of the same day, the plaintiff and his son, Solomon, called at the home of the appellant and asked her to give him a new note to secure him against liability upon his endorsement of the note in the Berks County Trust Company. She refused to give a new note, whereupon the plaintiff told her that the old note would have to be changed. Thereupon, the plaintiff’s son, at his father’s direction, changed the endorsement on the note in suit by striking out the words “Reading National” and inserting “Berks County Trust Co.,” such change being made in the presence of Mrs. Stocker and the other parties to the note. Mrs. Stocker, however, did not re-execute the old note in its altered form or sign any memorandum assenting to the alteration.</p> <p>After the alteration had been made, the appellant requested the plaintiff to renew the note in the Berks County Trust Company, which the plaintiff thereupon agreed to do.</p> <p>The note in the Berks County Trust Company was renewed with the endorsement of Isaac Goldsmith until April, 1910, when it was protested and paid by Goldsmith, who thereupon brought suit on the collateral note dated September 17, 1908, originally given by the defendants to secure the payment of the note in the Reading National Bank.</p> <p>Verdict for plaintiff for $3,039.50 and judgment thereon. Katharine B. Stocker appealed.</p> <p>Errors assigned, were various 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> Practice, Supreme Court—Appeals—Assignments of error—Defective assignments. </p> <p>1. An assignment of error complaining of the entry of judgment for defendant n. o. v. is defective where it fails to quote the motion for the rule, or the request for binding instructions for defendant.</p> <p>2. As the opinion of the court below on motion for judgment n. o. v. is not assignable for error, an assignment is defective which embraces nothing but a few sentences from such opinion.</p> <p> Negligence—Master and servant—Moving machinery, contributory negligence—Judgment for defendant, n. o. v. </p> <p>3. Where in an action against an employer to recover damages for personal injuries sustained by an employee in consequence of being caught in a moving sprocket of a machine which he was adjusting, it appeared that the guard had been removed from the sprocket for the purpose of changing the machinery and that before making the adjustment plaintiff had been ordered by the foreman to replace the guard but had failed to do so, plaintiff was guilty of contributory negligence and judgment n. o. v. was properly entered for the defendant.</p>

<p>Appeal, No. 389, Jan. T., 1914, by défendant, from judgment óf C. P. Adams Co:, Jan. T., 1913, No. 35, on verdict for plaintiff in case of C. W. Hendley, trading as C. W. Hendley & Company, v. John R. Bittinger, trading as Bittinger Lime-Company.</p> <p>: Assumpsit for coal sold and delivered. • Befóte Swope/ P. J. •</p> <p>■' The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,904.81 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were rulings on evidence and answers to points.</p>

<p>Appeal, No. 53, Jan. T., 1915, by defendant, from judgment of C. P. Berks Co., Feb. T., 1913, No. 519, on verdict for plaintiff in case of John J. Knoll, Trustee of The Walley-Sarge Company, Bankrupt Estate, v. Commercial Trust Company of Reading.</p> <p>Assumpsit by a trustee in bankruptcy to recover from a creditor an alleged preference given by the bankrupt. Before Wagner., J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,762.50 and judgment thereon. Defendant appealed.</p> <p>• Errors assigned were answers to points, instructions to the jury, rulings on evidence, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 72, Jan. T., 1915, by the Marshall Auto Company, from decree of O. C. Berks Co., Sept. T., 1912, Nos. 66 and 67, and March T., 1914, No. 36, dismissing exceptions to adjudication in Estate of Joseph Middleby, deceased.</p> <p>Exceptions to adjudication. Before Bushong, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. The Marshall Auto Company appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Decedents’ estates—Wills—Power to sell realty—Fraudulent sale—Petition to set aside—Jurisdiction, O. G.—Laches.</p> <p>1. The Orphans’ Court had jurisdiction of a petition to set aside a sale made by a deceased executor to his wife, also deceased, where the estates of both and all parties having any interest in the property were before the court.</p> <p>2. Where a testatrix by her will gave her husband and executor power to sell any part of her real estate “at any time he may think it to the best interest of my estate, and convey the same in fee simple, but the proceeds shall be reinvested in good real estate securities, on like trusts,” she gave him full power to make- a bona fide sale of .it, but not to sell to himself as vendee at private sale, for an inadequate price, or what is the same thing, to sell to a second wife for less than its real value.</p> <p>3. In such case the fact that the legatees and devisees who were entitled to the realty did not file the petition until seven years after the sale is immaterial, where it appeared that the proceeding was instituted promptly after the death of the husband, prior to which time petitioners had no right to the possession or enjoyment of the property.</p>

<p> Wills—Construction—Vested and contingent estates. </p> <p>Testatrix by will gave her estate to her executor in trust to pay one-half the income to her husband during his life, and the other half to her son, further providing: “From and after the death of my beloved husband all of said trust estate to go to my said son, Daniel Hoke; but if my said son, Daniel, should die without leaving issue living at the time of his death, then subject to the life interest in the income payable to my husband I give, devise and bequeath the said residuary estate to my nephews and .nieces, the children of my sisters including those of my half sisters and should any of my nephews and nieces be dead, leaving children surviving them such child or children shall take its deceased parent’s share.” The son died in the lifetime of the father, but after the death of the testatrix. The Orphans’ Court held (1) that the interest of the son in the corpus of the estate was contingent upon his surviving his father and that upon his death, in the. lifetime of his father, it vested in the nephews and nieces of the testatrix, subject to the life estate of the father; (2) that after the death of the son, the husband was entitled' to thé entire income during his life. Held, no error.</p>

<p> Contracts—Street railway companies—Contract to. maintain stop on premises—Breach—Measure of damages. </p> <p>1..A written agreement between a street railway company and the owner of land, by which the former in consideration of the grant of a right of way agreed to pay a stipulated sum in cash and also to maintain a stop on the premises of the land owner, will be enforced for the benefit of the land owner, although no definite location for. the stop was designated. -</p> <p>2. In such case, while equity will not compel the maintenance of the stop, if in the judgment of the railway company the proper, safe, convenient or economical operation of the road required or made desirable, the abandonment of the stop, nevertheless the company will be responsible in damages.</p> <p>3. In such ease, the measure of damages is the additional value which would have accrued to the plaintiffs’ land had the stop been maintained thereon.</p>

<p>Appeal, No. 378, Jan. T., 1915, by Anna Maria Schweinsberg, from decree of O. C. Philadelphia Co., April T., 1914, No. 469, dismissing exceptions to adjudication; in Estate of Mari Von der Lindte, deceased.</p> <p>Exceptions to adjudication.</p> <p>The adjudication of Lamorelle, J., was in part, as follows: ■</p> <p>Mari Von der Lindte, widow (who died June 6,1912), devised the remainder of her real estate (after a specific devise of 2117 Orleans street), to her son, William, In Trust, to collect the income therefrom and to pay the same to her two children (William Gr. and Mary Schweinsberg) in equal shares, and directed that upon the death of the, survivor the real estate was to be divided between the “issue in equal shares by representation.”</p> <p>By the' succeeding item of her will she appointed her said son* William G. Muhlhauser, executor and trustee, authorized him to sell the real estate and directed that the proceeds of such sale “during the lives of the children should be divided equally between them.”</p> <p>In using the word “proceeds” she must have meant profits, interest, or income. Otherwise, there is such inconsistency that the two clauses cannot both stand. By interpreting “proceeds” to mean “profits,” we give full weight to the expression “during the lives of the children.” If testatrix had intended a distribution of the principal, received from such sale or sales, “during the lives of the children” are meaningless.</p> <p>•. ■ That she did not contemplate that a sale terminated the trust, and that she did have in mind a continuing trust ending with the life of the survivor is apparent when we examine the codicil bearing even date with the will and evidently prepared after she had heard the will read, wherein she provides that if the daughter, Mary, shall leave her husband her surviving and no issue, he is to have one-half of the income for life. This evidences the fact that testatrix had in view a trust, irrespective of the- sale of her residuary real estate.</p> <p>Gummey/J., filed the following opinion, dismissing exceptions to the adjudication:</p> <p>A majority of the court agree with the learned auditing judge that this trust continues until the death of the survivor of the testatrix’s children.</p> <p>Conceding that it is unusual to consider “proceeds” as “income,” nevertheless we believe that in adopting this construction we are correctly ascertaining the intention of the testatrix, and, if authority is needed, it is found in Robert’s App., 92 Pa. 407.</p> <p>This view is supported by the language of the codicil which provides that in the event of the death of the testatrix’s daughter in the lifetime of her husband, one-half of the income to which the daughter would be entitled to if living shall be paid to the husband for life; while if we are to adopt the construction contended for by the exceptants, the contingent bequest to the husband as well as the estate in remainder given to the daughter’s children, if any, could be defeated by a sale of all the real estate and the distribution of the proceeds.</p> <p>It appears, however, that Katharine Muhlhauser is testamentary guardian of the estate of Mary Theresa Muhlhauser who is still a minor and, therefore, the award in her favor will be paid to her guardian and the adjudication is so amended.</p> <p>The exceptions are dismissed.</p> <p>Anna Maria Sehweinsberg appealed.</p> <p>Errors assigned were in dismissing exceptions to the adjudication.</p>

Appeal, No. 379, Jan. T., 1914, by plaintiffs, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1912, No. 5636, refusing to take off nonsuit, in case of Morris Ignash, by his father and next friend, William Ignash, and William Ignash, in his own right, v. Daniel J. Murphy and John J. Murphy, co-partners, trading as Murphy, Cook & Co. . Trespass to recover damages for personal injuries.

<p>" Corporations —• By-laws — Stockholders’ meeting — Quorum — Prevention of annual meetings—Equity jurisdiction. ■ •</p> <p>1. The legislature has expressly provided for the subordination .of every by-law of a corporation to the laws of the Commonwealth.</p> <p>2. While as a general principle of law the by-laws of a corporation become a part of its fundamental law and are binding not only upon .the corporators but upon those dealing with the corporation, and while it is within the power of the corporators to provide that more than a majority of the stock issued and outstanding shall be necessary to constitute a quorum for the general transaction of corporate business, and such a by-law will be upheld when used for a lawful purpose, it cannot be used for the express purpose of defeating what the law requires as to the holding of annual elections.</p> <p>3. A by-law which requires four-fifths of the stock to be represented, in order to constitute a quorum, must be deemed to be subordinate to the statute which provides for the annual election of directors, and it cannot be used to defeat the plain intention of the legislature as declared in the acts of assembly.</p> <p>4. A court of equity has jurisdiction to determine whether a bylaw of a corporation is inconsistent with the law of the State in the matter of holding corporate elections, and if found to be so, to decree that an election be held at which a’ majority of the stock shall. constitute a quorum.</p> <p>5. A by-law of a Pennsylvania corporation provided that four-fifths of the stock issued and outstanding should be necessary to constitute a quorum for the transaction of business at a stockholders’ meeting. Plaintiff was the owner of a majority of the stock but not four-fifths thereof. Two of the defendants owned between them more than one-fifth of the stock. One of them was president and drawing a salary as such but had ceased to perform any duties of the office. These two defendants refused to attend any meetings of the stockholders and thereby prevented a quorum from being present. No annual meeting had been held for .two years. Upon a bill filed by plaintiff, the court did not err in ordering that a meeting of the stockholders should be held, at which a majority of the stock should constitute a quorum.</p>

<p>Appeal, No. 4, Jan. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Có., Dec. T., 1912, No. 3118, on verdict for plaintiff in case of Genevieve G. Miller, Widow of John Miller, v. Ellen E. Tiedemann.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Barratt, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for §5,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 29, Jan. T., 1915, by plaintiffs, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1908, No. 1903, on directed verdict for defendant in case of Israel Birnbaum and Abraham Birnbaum, by his next friend and father, Israel Birnbaum, v. Philadelphia & Reading Railway Company.</p> <p>. Trespass to recover damages for personal injuries. Before Sulzberger, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury by direction of the court rendered a verdict for the defendant upon which judgment was entered. Plaintiff appealéd.. .</p> <p>Error assigned, inter alia, was the direction by the court to render a verdict for the defendant.</p>

<p>Corporations — Mortgages — Coupons — Interest on coupons — 'Priority.</p> <p>Where a corporation mortgage provides that'upon foreclosure the coupons on the bonds secured by 'such mortgage shall- be paid in priority to tbe bonds, tbe bolder of coupons detached from the bonds is entitled to priority not only for tbe face value of tbe coupons but for interest upon each coupon from its due date to tbe date of payment.</p>

<p>Appeal, No. 23, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., June T., 1912, No. 379, for defendant notwithstanding verdict in case of Horace Groskin v. Eleanor M. Moore.</p> <p>Assumpsit to recover commission for procuring a purchaser of real estate. Before Ralston, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The jury found a verdict for the plaintiff for $1,711.61, which was subsequently set aside and judgment entered for the defendant notwithstanding the verdict.</p> <p>Error assigned was in entering judgment for defendant notwithstanding the verdict.</p>

<p>Appeal, No. 86, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., March T., 1912, No. 3153, for defendant n. o. v. in case of Henry Christie v. Philadelphia & Reading Railway Company.</p> <p>Trespass for damage to real property. Before Martin, P. J.</p> <p>The plaintiff filed a statement of claim claiming compensation for damages to premises at the southwest corner of Ninth and Poplar streets, Philadelphia, occasioned by the obstruction of access to such property by defendant company’s erecting and maintaining an elevated structure along Ninth street. The statement was subsequently amended to cover damages for injury to the corner property occasioned by the deprivation of light and air.</p> <p>At the trial the plaintiff offered in evidence an agreement between the Philadelphia, Germantown and Norristown Railroad, predecessor in title to the defendant, and Henry Pratt, plaintiff’s predecessor in title, recognizing Platt as the owner of lands adjoining on and lying near to Ninth street, and also proved title from Henry Pratt to himself, but offered no evidence beyond the agreement to prove title in Pratt to the bed of Ninth street. It also appeared by the agreement between the railroad company and Pratt that if the railroad ever ceased to use the street for railroad purposes the part occupied by it should be and remain a part of the public highway, and there was evidence of an ábsolute and 1 complete dedication of the full width of the street as a public highway.</p> <p>Verdict for the plaintiff for $4,500. The court subsequently entered judgment for defendant n. .o. v. Plaintiff appealed.</p> <p>Error assigned was entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 113, Jan, T., 1915, by Charles B. Dunn, from decree of O. C. Philadelphia Co., Oct. T., 1913, No. 228, dismissing exceptions to adjudication in Estate of Julia Garrett, deceased.</p> <p>Exceptions to adjudication. Before Lamorelle, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court dismissed the exceptions. Charles B. Dunn appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 80, Oct. T., 1915, by A. M. Custer, from decree of.C. P. Cambria Co., ordering sale of real estate in the Matter of the Petition of the Franklin Street Methodist Episcopal Church of Johnstown, Pennsylvania.</p> <p>Petition for leave to sell real estate held in trust. Before O’Connor, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered a decree authorizing the sale. A. M. Custer appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 2, Jan. T., 1915, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1914, No. 238, for defendant on agreed statement of facts, in case of County of Schuylkill v. John W. Reese, •Prothonotary.</p> <p>...Assumpsit for fees, received by the prothonotary of the Court of Common Pleas; of Schuylkill County. Before Bbumm, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for defendant on an agreed statement of facts. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 200, Jan. T., 1914, by Ellen B. Skeer, administratrix of the Estate of Charles O. Skeer, from decree of O. C. Carbon County, dismissing exceptions to supplemental report of auditor in Estate of Charles O. Skeer, deceased.</p> <p>Exceptions to supplemental report of Jacob C. Loose, Esq., auditor. Before Strauss, J., specially presiding.</p> <p>The facts appear in Skeer’s Est., 236 Pa. 404, and in the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. Ellen B. Skeer, administratrix, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 195, Jan. T., 1914, by Marion J. Skeer, Administratrix of Charles O. Skeer, Jr., deceased; Plora A. Skeer Harman, Lloyd B. Skeer, Joseph A. Skeer, Anna M. Skeer,.Emily Packer; Emily Packer, Administratrix of J. Benham Packer, deceased; A. B. Hazlett and Jennie A. McDonnell, Executors of the estate of Sarah H. Hazlett, deceased, and Annie Randall,. from decree of O. C. Carbon County, dismissing exceptions to report of auditor in Estate of Charles O. Skeer, deceased.</p> <p>Exceptions to report of Jacob C. Loose, Esq., auditor. Before Strauss, J., specially presiding. '</p> <p>The facts are stated in Skeer’s Est. (No. 1), 249 Pa. 288, and in the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. The heirs of Charles O. Skeer, deceased, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p> Practice, Supreme Court—Appeals—Assignments of error—Defective assignments. </p> <p>1. Assignments of error which fail to set out in the exact language of the court the matters alleged to be erroneous in the disposition of the case, are defective and will not be considered.</p> <p>Elections—Contest—Opening of ballot boxes—Judicial discretion—Waiver of objections—Evidence—Production of ballot from proper custody—Presumption of validity — Marking ballots — Improper marking—Colored stickers—Act of June 10, 1898, Section 80, P. L. 1)19, lf85—Invalid ballots.</p> <p>2. In a contested election case, the Supreme Court is not limited to a formal examination of the record, but may ascertain the facts from the record, and correct all erroneous conclusions, judgments, or decrees based thereon.</p> <p>3. A petition alleging fraud, mistake, or irregularity in the counting of ballots and praying that the ballot boxes be opened, and for a recount, is addressed to the sound discretion of the court, and the court does not abuse its discretion in ordering such ballot boxes to be opened without first requiring proof of the matters alleged.</p> <p>4. Where, after the ballot boxes of certain districts of a ward have been opened, the respondent in the proceeding prays that the ballot boxes of the remaining districts be opened, he thereby waives his right to object to the original order.</p> <p>5. The fact that ballot boxes brought before an examiner appointed to count the ballots were produced from the proper custody, is prima facie proof that the ballots therein contained were those cast at the election, and such ballots may be counted in the absence of allegation or proof that any of the boxes were tampered with, or that the ballots were not identical with those cast at the election.</p> <p>6. The attaching of a pink sticker to the space on the ballot left blank for inserting other names lends itself readily to a violation of Section 30 of the Act of J une 10, 1893, P. L. 419, 435, prohibiting a voter to allow his ballot to be seen with the intention of letting it be known how he is to vote, and is not to be commended.</p> <p>7. Where a ballot otherwise properly marked,- contains a cross mark in the square opposite the name of a candidate, which is smudged or partly obliterated, it is apparent that the voter made an error by placing a mark in the wrong square and then undertook to erase it; the intention of the.voter in such case is plain, and the ballot is valid.</p> <p>8. In an election contest it appeared that certain ballots contained a cross in the party square of the party to whieh contestant belonged, and also marks opposite the name of contestant, but not opposite the names of all the other candidates of contestant’s party; that other ballots, in addition to the mark in the party square of contestant’s party had marks opposite the names of certain other candidates of contestant’s party, but not opposite contestant’s name. Held, that all such ballots were void.</p> <p>Mr. Justice Mestrezat dissents.</p>

<p>Appeal, No, 477, Jan. T., 1914, by defendant, from judgment of C. P. No. 3, Philadelphia Co., June T., 1914, No. 2919, for plaintiff for want of a sufficient affidavit of defense, in case of Fannie R. Kelly, et al., v. William W. Miller.</p> <p>Assumpsit for rent.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before McMichael, P. J. ,</p> <p>The opinion of the Supreme Court states the facts.</p> <p>. The court made absolute the rule for judgment for, want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p> Negligence—Railroads—Infants—Tracks on city street—Boy playing on car. </p> <p>In an action against a railroad company to recover damages for personal injuries sustained by plaintiff, a boy ten years of age, it appeared that while plaintiff and another boy were playing on a box car standing on the siding of the defendant company, located on s city street, a shifting engine approached the car, tender first, for the purpose of making a coupling and that when the engine came in contact with the car, the plaintiff was knocked off and the wheel of the box car or tender of the engine passed over and injured his arm. Although the testimony of the plaintiff was somewhat contradictory, there was enough in his evidence and the other evidence in the case to justify the inference of the jury that as the engine was approaching the car the engineer saw the boy in time to stop the engine and permit him to alight, but that he wilfully and wantonly continued to run the engine at sueh rate of speed that the force of the impact caused the boy to be knocked off the car and injured. Held, that the action of the lower court in entering judgment for defendant n. o. v. was error.</p>

<p>Corporation—Leases—Agreement by les'see to pay lessees taxes —Construction—Intention. ■ \</p> <p>A railroad company leased its property to. another railroad company by a lease providing that the lessee should “pay all taxes arid assessments......upon the yearly payments herein agreed to be^ made by the party of the second part to the party of the first part ......for the payment or collection of which taxes or assessments the said party of the first part would otherwise be liable or accountable under any lawful authority whatever”; that the lessee “should pay all taxes, charges, levies, claims, liens, and assessments of any and every kind, which, during the continuance of the term hereby demised, shall, in pursuance of any lawful authority, be assessed or imposed on the demised premises, or any part thereof......all payments required to be made by the party of the first part during the term of this indenture......shall be assumed and discharged by the party of the second part as if the party of the second part were primarily liable for the same.” The lessor having paid a tax under the Federal Income Tax Act of Oct. 3, 1918, c. 16, §11, 38 U. S. Stat. 114, 116, upon the income received under the lease, brought an action against the successor of the lessee, to recover the amount of such payments. The lower court entered judgment for plaintiff on demurrer to plaintiff’s statement of claim. Held, no error.</p>

<p>Appeal, No. 13, Jan. T., 1915, by defendants, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 2511, for plaintiff for want of a sufficient affidavit of defense in case of William G. Krebs and John F. Krebs v. Philadelphia Life Insurance Company.</p> <p>Assumpsit on policy of life insurance.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court below made absolute plaintiff’s rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was in entering judgment for plaintiff for want of sufficient affidavit of defense.</p>

<p>Negligence—Respondeat superior — Infant trespasser — Moving vehicle—Instructions—Court and jury.</p> <p>1. In an action to recover damages for personal injuries to a six year old child, who was injured while playing with other boys upon a wagon driven by defendants’ employee, which it was alleged was started without giving them an opportunity to alight, where it appeared that the plaintiff climbed upon the wagon without the consent of the defendants or their driver, it was error not to affirm a point presented by defendants to the effect that if the boy climbed upon the wagon without the consent of the defendants or their driver, he was a trespasser regardless of his age.</p> <p>2. In such case it was error for the court to refuse to charge at the request of defendants that if the boy was a trespasser there could be no recovery against the defendant unless the jury found from the evidence that they or their driver wantonly or intentionally inflicted the injury complained of.</p>

<p>Appeal, No. 5, Jan. T., 1915, by Cora J. Thompson, from decree of O. C. Lackawanna Co., Year 1912, No. 411, dismissing exceptions to adjudication, in Estate of Orlando S. Johnson, deceased.</p> <p>Exceptions to adjudication. Before Sando, P. J.</p> <p>From the record it appeared that “On January 1,1912, O. S. Johnson executed his will in the presence of Arthur H. Christie and John F. Corrigan, who signed their names as subscribing witnesses thereto. In the eighth paragraph the testator devised and bequeathed all his residuary estate to the Scranton Trust Company, in trust, “to provide for the securing of a site, the planning, erection and construction of a suitable building or buildings and the perpetual maintenance of a manual training school devoted to the instruction of boys and girls in useful arts and trades, such boys and girls to be primarily of the City of Scranton or secondarily of the County of Lackawanna.” In the same paragraph the testator appointed an advisory committee or board, composed of five men, one of them being Arthur H. Christy, one of the subscribing witnesses to the will.”</p> <p>Other facts appear in the opinion of the Supreme Court and in the dissenting opinion by Brown, C. J.</p> <p>The court dismissed the exceptions. Cora J. Thompson, heir at law and next of kin of decedent, appealed'.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 77, Oct. T., 1913, by James T. Arnold, Robert J. Cleland, guardian of sáid James T. Arnold, and Robert J. Cleland, Attorney-in-Fact for said James T. Arnold, from decree of O. C. Allegheny Co., Sept. T., 1912, No. 77, dismissing exceptions to adjudication, in Estate of Isabella Arnold, deceased.'</p> <p>Exceptions to adjudication. Before Hawkins, P. J.</p> <p>From the record it appeared that James T. Arnold and Isabella, his wife, were residents of the City of Pitts; burgh, where the latter died on November 13, 1909. They never had any children. Janies T. Arnold, at various times from 1906 to 1908, gave about $200,000 in bonds to his wife. On July 19, 1906, they each executed a will disposing of their respective properties, and each was an attesting witness to the other’s will, the other witness being Robert H. Leitch, appointed executor in both wills. In his will Mr. Arnold declares that “having in other ways made full and ample provision for my beloved wife, Isabella Arnold, by turning over to her absolutely a certain portion of my property, I do not by this will give her anything more, as her acceptance of said portion of my property was and is to be taken as a full release of her dower rights under this will.” He made specific bequests to certain charities and gave the residuary part of his estate to his three nephews, the Cleland brothers. Mrs. Arnold bequeathed to her husband all the interest and income, during his life, from the money and bonds of which she died seized. Subject to this life estate^ she directed the larger part of the principal of her estate to be divided among certain charities and religious uses named in her will. Mr. Arnold was the owner of certain real estate for which he and Mrs. Arnold executed deeds to his nephews, which were deposited in Mr. Arnold’s box in the bank but néver delivered to the grantees named in the deeds.</p> <p>On January 4, 1908, Arnold executed powers of attorney authorizing Robert J. Cleland to take possession of his personal property, to collect the income therefrom and the rents of his real estate, in all things to act for Arnold in carrying on his affairs, and to assign all his stock and registered bonds to his nephews. At the same time a declaration of trust was executed by the nephews declaring that the income from the stocks, bonds and other securities assigned was to be paid to Arnold for life. On the same day Mr. Arnold executed another will by which he revoked his former will and devised and bequeathed all his estate to his wife except the real estate he had already given to his nephews. On May 18, 1908, Arnold, by a further power of attorney, authorized Eobert J. Cleland to sell and assign all his securities wrhich he then owned or might thereafter own, and to buy other securities of any corporation, and to have them assigned to Cleland who was to have title to the securities.</p> <p>Mrs. Arnold executed another will dated May 27,1909, by which she revoked her former will, bequeathed the interest and income during life from all the money and bonds of which she died possessed, amounting to about $196,000, to her husband, and the principal part of the corpus of her estate to certain designated charities. Eobert H. Leitch drew this will, was one of the subscribing witnesses, was named therein as sole executor and as guardian of certain legatees, and was given legacies in trust for certain friends of the testatrix, legacies for the education of his children, and the residue in trust for designated charities and such others as he might choose. Mr. Arnold took no part in the preparation of this will and there is no evidence that he had any knowledge of its contents or execution.</p> <p>On January 4, 1910, a petition was presented to the Court of Common Pleas of Allegheny County setting forth that Mr. Arnold, owing to weakness of mind, was not able to take care of his property and Eobert J. Cleland, his nephew, was appointed guardian for that purpose. On September 14, 1910, the Court of Common Pleas made an order directing Mr. Cleland, as guardian, to elect to take against the will of Mrs. Arnold, and on May 5,1911, notice to that effect was given Mrs. Arnold’s executor. Subsequently, on application to the Common Pleas, its former order directing the guardian to elect to take against the will was in effect revoked by another order which directed him to apply to the Orphans’ Court for a preliminary determination of the litigated question as to whether the legacies to charities, contained in Mrs. Arnold’s will, were void, so that he could intelligently determine whether it was to the interest of his ward to take under or against the will, and to take all necessary-steps to reserve and preserve to his ward’s estate whatever rights might be to its best interest in the distribution of Mrs. Arnold’s estate. Pursuant to this authority, the guardian at this audit presented his petition to the Orphans’ Court praying that an order be made thát he be allowed to elect to take under the will of the decedent if the legacies to religious and charitable bequests were decreed to be void, otherwise to take against her will such share and interest in her personal estate as he would be entitled to under the law, or. that if such order could not be made that full and final determination of the question and litigation as to said legacies being void should be made by the court before the petitioner was required to make an election.</p> <p>On April 4, 1912, the guardian of Mr. Arnold presented his petition to the Orphans’ Court and obtained a citation on Robert H. Leitch, executor of Mrs. Arnold, to show cause why he should not be directed not to sell or-dispose of the bonds of the decedent’s estate, and why he should not file an account as executor. The court directed the executor to file an account, and he thereupon filed this account, being his first and final account, showing a balance for distribution of $172,701.27. Exceptions were filed to- the account which were subsequently dismissed, and a decree was entered, January 31,1913, confirming the account and directing the balance for distribution to be paid to Robert H. Leitch, trustee under the will of the decedent, for the purposes therein specified. Mr. Arnold died on January 28, 1915, since the final decree was entered.</p> <p>The court dismissed the exceptions. James T. Arnold, Robert J. Cleland, guardian of said James T. Arnold, and Robert J. Cleland, Attorney-in-Fact for said James, T. Arnold, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Negligence—Street railways—Car jumping track — Switch—• Pedestrian on sidewalk—Evidence—Burden of producing evidence —Case for jury.</p> <p>1. In an action against ia street railway company to recover damages for personal injuries, the court erred in refusing to take off a compulsory nonsuit where it appeared that plaintiff was standi ing on a public sidewalk when the rear end of a street car jumped the track, when the truck striking the switch, swung out over the sidewalk and struck the plaintiff, and there was evidence that cars had jumped the track at such switch on several prior occasions.</p> <p>2. In such case there was no burden on the plaintiff to affirmatively prove the particular act or acts of negligence which caused the car to jump the track. The jury could infer that a defective switch caused the accident from the facts that the cár did jump the track at the switch, and that the same thing had occurred on several prior occasions.</p>

<p>Appeal, No. 283, Jan. T., .1914, by thé Pennsylvania Mutual Life Insurance. Company, from decree of Q. S., Philadelphia Co., Sept. Sess., 1912, No. 25, granting leave to the City of Philadelphia to file a bond in eminent domain proceedings, in the matter of the opening of the Parkway from 16th and Arch streets to Appletree street, in the 10th ward of the City of Philadelphia.</p> <p>Petition by the City of Philadelphia for leave to file a bond to secure the damages caused by the opening of a parkway. Before Barratt, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted the petition. The Pennsylvania Mutual Life Insurance Company appealed.</p> <p>Error assigned was the decree of the court.</p>

<p> Negotiable instruments—Checks—Forgery—Act of April 27, 1909,-P. L. 260, April 5,18^9, P. L. m, See. 10. </p> <p>■ 1. Under the Act of April 27, 1909, P. L. 260, amending Sec. 137, of the Negotiable Instruments Act, and providing that the mere retention of a bill of exchange by the drawee shall not amount to an acceptance unless its return has been demanded, and that the provisions of said section shall not apply to checks, a bank which has paid a check drawn upon it without accepting the check in writing, is not an acceptor thereof in the sense that it is precluded by Sec. 62 of the act from disputing the genuineness of the drawer’s signature.</p> <p>2. Section 10 of the Act of April 5, 1849, P. L. 424, providing that where payments have been made upon forged negotiable instruments, the amount of such payments may be recovered back from the persons previously negotiating such instruments, is not repealed by Sec. 137 of the Negotiable Instruments Act as amended by the Act of 1909, there being nothing in the latter act inconsistent with the Act of 1849.</p> <p>3. Sec. 10 of the Act of 1849 does not relieve the payer of the duty.' of giving prompt notice of forgery to the prior' holder or exempt the payer from the consequence of his own negligence if loss thereby accrue to the other party; where, however, the party to whom payment has been made is the agent of the holder for collection, the fact that no notice has been given the holder is not material if demand is made of the agent for the return of the payment before it has been remitted to the holder.</p> <p> Banks and banking—Agents for collection—Payment on forged checks to agent—Recovery by drawee bank. </p> <p>4. When a check remitted to a bank for collection has been credited to a depositor in cash, it may be charged back against the depositor in case it turns out to be a forgery; if the forgery is not discovered until after the check has been paid by the drawee bank to the collecting bank, the latter may return the payment and charge the amount thereof against the funds standing to the credit of the depositor.</p> <p>5. A bank, having received a forged check in the course of business, remitted it in good faith, to an agent for collection, who obtained payment thereof from the drawee. The collecting bank thereupon credited its principal with the amount of the cheek but did not remit the money. From the time of payment until the discovery of the forgery, and after, the agent for collection owed large balances to its principal greatly in excess of the amount of the check. Upon discovery of the forgery the drawee demanded of the collecting bank the amount which it had paid on the check, but was refused. In an action by the drawee to recover such payment it appeared that the accounts between the collecting bank and its principal were still open and that the collecting hank was in a position to recoup itself from the balances which it owed, for the amount which it might be compelled to return to the drawee of the check. The lower court directed a verdict for plaintiff, upon which judgment was entered. Held, no error.</p>

<p>Appeal, No. 32, Jan. T., 1915, by the Provident Life & Trust Company of Philadelphia, executor of the will of Henry B. Palethorp, deceased, from decree of O. C. Philadelphia County, July T., 1914, No. 287, dismissing exceptions to adjudication, in estate of Henry B. Palethorp, deceased.</p> <p>Exceptions to adjudication.</p> <p>The adjudication of Dallett, P. J., was, in part, as follows:</p> <p>The testator died May 20, 1913, leaving a will dated January 3, 1913, whereby after directing the payment of Ms debts and funeral expenses and the erection of a tomb in his family lot in South Laurel Hill Cemetery similar to the one erected for his brother, he provides as follows:</p> <p>“Third.—I give and bequeath unto my trustees by this my will appointed, one hundred and fifty thousand dollars to constitute a fund to be kept separate and apart, in trust, nevertheless, to invest, reinvest and keep the same invested under the powers and authorities by this my will upon my said trustees conferred, and to collect and receive the income, issues, dividends, and profits thereof, and after paying out of said income all lawful costs, charges, taxes, commissions and expenses incident to the care and management of said trust then to pay, expend, use and apply the net income therefrom when and as the same may be received, for the care, and maintenance of the Palethorp family lot which belongs to the estate of my late father and mother, situate in South Laurel Hill Cemetery, Philadelphia, and for the care and maintenance and renewal of any tombs and copings or rebuilding that may be required in the judgment of my trustees, and for flowers to be placed and maintained there, and for the support and maintenance of some proper person to be from time to time selected and employed by my trustees to attend to the care and oversight of said lot and show people where it is and perform such further duties in relation.thereto as my said trustees may prescribe from time to time in the exercise of their best judgment.</p> <p>“Fourth.—I give and bequeath unto my trustees by this my will appointed, fifty thousand dollars, In Trust, nevertheless, to invest, reinvest, and keep the same invested under the powers and authorities by this my will upon my said trustees conferred, and to collect and receive the income, issues, dividends, and profits thereof, and after paying out of said income all lawful costs, charges, taxes, commissions and expenses incident to the care and management of said trust, then to pay, expend, use and apply the net income therefrom when and as the same may be received, for the maintenance and care of ‘The Palethorp Memorial Collection’ hereinafter mentioned, and for the purchase of paintings and works of art from time to time to add to that collection, to be kept in Memorial Hall in Fairmount Park, Philadelphia. I give to the commissioners of Fairmount Park, Philadelphia, the portraits of my late father and mother described in the will of my late sister, Caroline Anna Palethorp, and the portrait of my late brother, Dr. John H. Palethorp, and all the bric-a-brac and works of art of all kinds which are now in my house at No. 1931 Arch street, Philadelphia. I will and direct that the entire collection shall be called ‘The Palethorp Memorial Collection’ and shall be kept in Memorial Hall in Fairmount Park, Philadelphia.</p> <p>“Fifth.—I give and bequeath ten thousand dollars unto the Pennsylvania Academy of the Fine Arts now located at Broad and Cherry streets, Philadelphia, and also the two older portraits of my late father and mother and my own portrait.”</p> <p>Gave $75,000 to the General Assembly of the Presbyterian Church for the purpose of erecting a church on Palethorp street, Philadelphia, to be called “The Palethorp Memorial Presbyterian Church of the City of Philadelphia,” $5,000 each to the Firemen’s Pension Fund, the Police Pension Fund, the Jewish Hospital, the Pennsylvania Institute for the Instruction of the Blind, and the Presbyterian Home for Widows and Single Women in the State of Pennsylvania, $5,000 to the Board of Directors of City Trusts “to be invested by them according to law and income applied to the maintenance and support of Wills’ Eye Hospital, $5,000 to the City of Philadelphia “for the erection of storm sheds or shelters in Fairmount Park” as therein particularly set forth, $5,000 each to the Contributors to the Pennsylvania Hospital and the Presbyterian Hospital for the maintenance of a bed in each to be known as “The Palethorp Memorial Bed” and then provided:</p> <p>“Sixteenth.—If there should be any residue of my estate I give and bequeath the same unto my trustees by this my will appointed, In Trust, nevertheless to invest, reinvest, and keep the same invested under the powers and authorities by this my will upon my said trustees conferred, and to collect and receive the income, issues, dividends and profits thereof, and after paying out of said income all lawful costs, charges, taxes, commission» and expenses incident to the care and management of said trust, then from time to time to allot and pay the net income among and unto such charitable institutions as my trustees may deem wise.”</p> <p>He then authorized his executor and trustee to retain any assets belonging to his estate at the date of his death and also gave them power to sell both real and personal estate.</p> <p>He appointed the Provident Life & Trust Company executor and trustee.</p> <p>The payment of collateral inheritance tax $600 on $12,000 (premises No. 1931 Arch street) on October 27, 1913, was duly vouched, as well as the payment of $4,-500 on $90,000 “on account” on May 15,1914.</p> <p>Messrs. White, Sterrett, Tustin and Wesley on behalf of testator’s next of kin questioned the validity of testator’s gifts for charitable purposes on the ground that the will had not been witnessed by two disinterested witnesses within the meaning of the Act of Assembly and as well urged that the testator’s gift of $150,000 for the care of his cemetery lot and the support and maintenance of a proper person to care for the lot and “show people where it is” was in part an unlawful perpetuity and therefore wholly void.</p> <p>The objections raise questions as to interest of the executor and trustee and the relationship of the witnesses to the executor and trustee, and as well as to whether the Act of June 7,1911, P. L. 702, applies to the several trusts for specific purposes.</p> <p>In Kessler’s Estate, 221 Pa. 314, Mr. Justice Elkin for the Supreme Court in discussing the interest of a witness said:</p> <p>“If the attesting witness be interested as legatee or devisee under the will, or is to derive a pecuniary benefit or advantage from any part of it, or if he is interested at the time of attestation in a religious or charitable institution to be benefited thereby, he is not disinterested within the meaning of the statute.”</p> <p>In Jeanes’ Estate, 228 Pa. 537, Mr. Justice Beown in discussing the character of the interest which would disqualify said:</p> <p>“If he was interested within the contemplation of the act, the amount of his interest would be immaterial, for the doctrine de minimis non curat lex has no application. The test is not quantity, but quality.</p> <p>“Interest which, under the Act of April 26, 1855, P. L. 328, disqualifies a witness from attesting a will containing religious or charitable bequests must be a present, certain, and vested one. It must not be uncertain, remote or contingent.”</p> <p>In this will the testator has appointed The Provident Life and Trust Company executor and trustee. The appointment as executor would not alone disqualify because as was said in Jordans’ Est., 161 Pa. 393, the compensation of the executor would not be affected by reason of the validity or invalidity of any gift made by the testator.</p> <p>Whether the duties, responsibilities and power given to the accountant as trustee added to its duties as executor do disqualify is the question to be determined in this estate. In other words has this accountant such an interest in the testator’s estate as was referred to by Mr. Justice Elkin in Kessler’s Estate or such a present, certain and vested interest as to come within Mr. Justice Brown’s definition in Jeanes’s Estate.</p> <p>By the fourth item of his will the testator gives the accountant as trustee $50,000:</p> <p>, “To pay, expend, use and apply the net income therefrom when and as the same may be received, for the maintenance and care of ‘The Palethrop Memorial Collection’ hereinafter mentioned, and for the purchase of paintings and works of art from time to time to add to that collection, to be kept in Memorial Hall in Fair-mount Park, Philadelphia.”</p> <p>And with regard to residue he provides:</p> <p>“If there should be any residue of my estate I give and bequeath the same unto my trustees by this my will appointed, In Trust, nevertheless, to invest, reinvest and keep the same invested under the powers and authorities by this my will upon my said trustees conferred, and to collect and receive the income, issues, dividends and profits thereof, and after paying out of said income all lawful costs, charges, taxes, commissions and expenses incident to the care and management of said trust, then from time to time to allot and pay the net income among and unto such charitable institutions as my trustees may deem wise.”</p> <p>The testator has therefore imposed upon his trustee the duty of caring for $50,000 and applying the income to be derived therefrom in the care of a Memorial Collection and “for the purchase of paintings and works of art from time to time to add to that collection,” and as well in the event that there should be any residue the duty of paying any income to be derived from said residue to “such charitable institutions as my trustees may deem wise.”</p> <p>These are not the usual duties imposed upon a financial corporation appointed as trustees to care for the principal and pay income either to charities or individuals for purposes. This trustee is given wide discretion in all matters. It is not only to apply income in the care of the collection of paintings to be placed in Memorial Hall, but to apply it itself and to purchase paintings and works of art to be added thereto, and if there is any income derived from residue it is to select the beneficiaries to whom income is to be paid.</p> <p>Such liberal discretion in the expenditure of income amounts to little less than a gift of the income itself. It might fairly be said that this trustee had been favored with a limited power of appointment over income. With no interested party to question the wisdom of the exercise of the discretion given there would be little opportunity to control its exercise.</p> <p>And if as was said in Stinson’s Est., 232 Pa. 218, the appointment on a board to manage a charity was a disqualifying interest the mere statement of the powers of this trustee would seem to be sufficient to determine the fact that this trustee was interested.</p> <p>Being of the opinion therefore that the trustee’s interest is such an interest as disqualifies, were the attesting witnesses interested in the corporation trustee to such an extent as would disqualify them?</p> <p>B. P. Jones as appears from his testimony was on the date of the execution of the testator’s will employed in the Deposit and Trust Department of The Provident Life and Trust Company. He did not own any stock in the said company and was not therefore an interested witness: Carson’s Est., 244 Pa. 401.</p> <p>Richard T. Cadbury at the date of the execution of the testator’s will was employed as an assistant in the Trust Department of the Provident Company. He was at the time the owner of ten shares of stock in said company and it may be said at that time also owned one share of stock in the Pennsylvania Academy of Fine Arts which entitled him to vote at certain elections and to a free ticket of admission to the academy. There are 10,000 shares of stock of the Provident Life and Trust Company of the par value of $100 each, and 4,463 shares of stock of the Academy of Fine Arts of the par value of $100 each.</p> <p>Whether the ownership of shares in a corporation upon which dividends are paid disqualifies the holder thereof as an interested witness does not appear to have been definitely decided. The question was suggested in Carson’s Estate, supra, but as in that case there were four witnesses two of whom were merely employees and so competent the determination of the question as to stockholders was not necessary and as Mr. Justice Brown said “is a question which we need not decide.”</p> <p>In Jeanes’s Estate, supra, however where the witness was a stockholder the decision appears to have been based upon the facts that the shares of stock directed to be held by the trustee were stock of the trustee company and that as a consequence the interest of the witness was so uncertain, remote and contingent as not to disqualify. Mr. Justice Brown for the Supreme Court however there declared that the amount of interest was immaterial and that the test was quality and not quantity. And as was said in Kelly’s Est., 236 Pa. 54, “The law will not attempt to weigh and measure the advantage resulting to the legatee in order to determine the question of his competency as an attesting witness to a will of this character. It will assume his interest from the single fact that he is a legatee named in the will.”</p> <p>If this be the law Mr. Cadbury was an interested witness. Had he been the owner of 9,000 shares of the 10,-000 shares of stock in the Provident Life and Trust Company there probably would be no question as to his interest as a stockholder in the doings of the company. Or if he had such majority interest as would empower him to select the management of the company it would be difficult to say that he had no interest. And if the test of interest is quality not quantity the ownership of his ten shares must be held to give him a present and certain interest.</p> <p>Being of the opinion therefore that not only the trustee was interested under the testator’s will but that Mr. Cadbury as a stockholder was interested the auditing judge must find that the testator’s will was not attested by the “two credible, and, at the time, disinterested witnesses” required by the Act of April 26,1855, P. L. 328.</p> <p>This view brings into question the Act of June 7,1911, P. L. 702, which provides:</p> <p>“That no estate, real or personal, shall hereafter be bequeathed, devised, or conveyed to any body politic, or to any person in trust, for religious or charitable uses, except the same be done by deed or will attested by two credible, and, at the time, disinterested witnesses at least one calendar month before the decease of the testator or alienor—a disinterested witness being a witness not interested in such religious or charitable use, this act not being intended to apply to a witness interested in some other devise, bequest, or gift in the same instrument; and all dispositions of property contrary hereto shall be void, and go to the residuary legatee or devisee next of kin, or heirs, according to law. Provided, that any disposition of property within said period, bona fide made for a fair valuable consideration, shall not be hereby avoided.”</p> <p>That this act was intended to apply only to charities in which the witness was interested has been the interpretation of this act accepted by the bar. It was apparently passed as a result of the decision in Kessler’s Est., 221 Pa. 314. Such was the view expressed by the present auditing judge in Kelly’s Est., 21 D. R. 81—236 Pa. 54, and he sees no reason to now modify that view. “A .disinterested witness being a witness not interested in such religious or charitable use.” “Such” evidently restricts the interest of the witness to the charity in which he is interested and which is the only gift affected. The amendment either has this meaning or is meaningless.</p> <p>Applying this view to the particular provisions of this testator’s will the auditing judge holds not only that the testator’s gift of residue is invalid, but that his gifts of $10,000 to the Pennsylvania Academy of Fine Arts, (Mr. Cadbury having a personal interest in that corporation) and of $50,000 fof the care of his collection of paintings and the purchase of additional paintings and works of art are also invalid.</p> <p>The remaining question concerns the testator’s gift of $150,000.</p> <p>With regard to this gift.</p> <p>The cemetery lot is approximately twenty by thirty feet in size. Fifteen thousand dollars has been expended in erections thereon. There is already in existence a trust fund of $1,000 to provide for its care. According to the superintendent of the cemetery that company in 1911 estimated that the income derived from $1,000 would be sufficient to keep this lot in order, but would not provide for replacing memorials.</p> <p>Notwithstanding the fact that the Act of May 26,1891, P. L. 119, declares that a gift for the maintenance of a cemetery lot “shall be held to be made for a charitable use” the auditing judge interprets that act as contemplating only the validity of such a trust because of its being in perpetuity—otherwise any bequest for the care of a cemetery lot would be void if not executed in accordance with the provisions of the Acts of 1855 and 1911.</p> <p>Is this gift then invalid as being a void perpetuity? It is hornbook law that a testator may do with his own as he wishes so long as his purposes are within the law.</p> <p>A trust for the care of a cemetery lot, for the maintenance of tombs thereon, ánd as well of flowers, is lawful. In part at least therefore the testator has created a legal trust. He however has added a provision that the income derived from his legacy shall also be used for the support and maintenance of a person to be selected by his trustee to care for said lot, “to show people where it is,” and to perform such other duties as his trustee might designate.</p> <p>Is this purpose lawful?</p> <p>If so centuries from now when deeds of the public benefactors of to-day shall have been forgotten “a proper person” maintained under the direction of this court may be “showing people” the lot wherein is interred the body of this testator and of his father and mother, or devoting his time to the destruction of such tomb as then exists and the erection of another in keeping with the period. What he will be doing will depend upon the whim of the then trustee. Could the income to be derived from the testator’s gift be reasonably applied in the “maintenance or care” of the cemetery lot in which he and his parents are buried or the graves therein or any monuments or copings or erections thereon his gift would be protected by the Act of 1891 but he himself by providing for the maintenance of the person to look after such duty and to show people where such an unreasonable expenditure of money is not only at the time going on but is to go on forever has himself clearly indicated a gift for purposes not contemplated by the Act of May 26,1891, P. L. 119.</p> <p>The case is similar in a great measure to Detwiller v. Hartman, 37 N. J. Eq. 347, where a testator directed the maintenance of a military band to march to his grave on the anniversary of his death and other holidays and play funeral marches and other appropriate music, and where it was held that the object of the testator was to perpetuate the memory of his family name in a manner which could confer no public benefit or use.</p> <p>So certainly would be this testator’s direction for a perpetual barker.</p> <p>Or as was said by President Judge Sittser in Methodist Episcopal Ch. of Wells v. Gifford, 5 Pa. O. G. 92.</p> <p>“The affection of relatives and friends or public services may preserve a man’s memory for some time. However strong and great these may be, his memory must ■eventually perish. But under this will, Gifford’s grave .must forever be kept in repair. When Caesar is forgotten, Gifford’s grave must be remembered. In the year of our Lord 10,000 a trustee, under the supervision of the Orphans’ Court, must see that his grave is properly turfed and free from woods. Through all time, Gifford’s grave must be kept green. Many such charities would impoverish the living to decorate the graves of the forgotten dead.”</p> <p>The auditing judge is therefore of the opinion that the testator’s gift of $150,000 for the care of his cemetery lot and the added purpose indicated by his will is void as creating a perpetuity except in so far as the reasonable care of his cemetery lot and the structures thereon is concerned.</p> <p>Authorities were cited to sustain the position that if part of such a gift was void the whole gift failed. An examination of the authorities however leads the auditing judge to a different conclusion.</p> <p>Andrew v. N. Y. Bible & Common Prayer Book Society, 4 Sandf. N. Y. 156, does not appear to be in point. The decisions in Fowler v. Fowler, 33 Beavan 616; Brad-son’s Est., 16 Pa. D. B. 669, and Van Syckel v. Johnson, 70 Atl. Bepr. 657, citing Coit v. Comstock, 51 Conn. 352, all seem to be based upon the theory that the respective funds for legal and illegal purposes could not be ascertained. Fowler v. Fowler, 33 Beav. 616, was decided in 1864.</p> <p>In Hoare v. Osborne, L. B. 1 Eq. 585, decided in 1866, Sir B. T. Kindersley, Vice Chancellor, took a different view and apportioned the fund for the respective purposes. And in re Vaughan, L. B. 33 Ch. D. 187, decided in 1886, Justice North again apportioned the fund awarding so much as was for the legal purpose for that purpose. And Jarman on Wills on page 458 notes that the decision in Fowler v. Fowler, 33 Beav. 616, “must be considered'overruled.” See also in re Bigley’s trusts, (L. J. 36 Ch. 147) and in re Bogerson, (L. B. (1901) 1 Ch. 715).</p> <p>The auditing judge therefore believes that the award only of an amount the income derived from which could reasonably be used in the care of the testator’s cemetery lot and repair and replacement of the erections thereon would be proper.</p> <p>As was represented át the audit the cemetery now holds a fund of $1,000 for the care of this lot. Such reasonable amount as should be added for the purpose will be added and the auditing judge in the absence of an agreement of the parties will determine W’hat that amount should be at a subsequent audit. Perhaps so much as $10,000 would be reasonable. Any excess in his opinion must fall into residue and be distributed among the testator’s next of kin, and he will therefore so award.</p> <p>On exceptions to the adjudication filed by the executor and trustee and by the next of kin, Gest, J., filed the following opinion:</p> <p>The exceptions filed in this case raised several important questions, which will be considered seriatim:</p> <p>1. The interest which disqualifies a witness to a bequest for a religious and charitable use was under the Act of April 26, 1855, Sec. 11, P. L. 328, Stew. Purd. 4115, held in the earlier cases, to be restricted to a pecuniary legal interest, so that he would gain or lose by the decision, Taylor’s Est., 16 Philadelphia 274, citing McMurray’s App., 13 W. N. C. 186; Comb’s App., 105 Pa. 155; Evan’s Est., 12 D. R. 694, but in Kessler’s Est., 221 Pa. 314, the Supreme Court held that the disqualifying interest was not merely such personal interest as appeared by the will itself, but such as existed by reason of the attesting witness being then interested in the religious or charitable institution for which provision was made by. the testator, or both or either' as the case may be, and this doctrine was applied in Stinson’s Est., 232 Pa. 218, to a case where the witness was interested as a member of the “executive committee” of a charity created by the will. Mr. Justice Brown in that case said, “The act is intended as much for such a case as if the bequest or devise is to a charity in existence at the time of the execution of the will in which the testator would make it the object, or one of the objects, of his bounty.”</p> <p>In all the cases that arose under the Act of 1855, it was held in the language of Kessler’s Est., 221 Pa. 314, that an interest in any part of the will would disqualify a witness for the purpose of attestation, and that the attestation of the execution of the whole instrument was what is required by the statute. In other words, first, an attesting witness, who was a legatee under the will, was disqualified although he had no interest in any charity benefited by the will; and secondly an attesting witness interested in a single charity thus benefited was likewise disqualified with respect to all charities including those in which he had no interest. See Fetterhoff’s Est., 228 Pa. 535; Shoemaker’s Est., 235 Pa. 402; Kelly’s Est., 236 Pa. 54; Leech’s Est., 236 Pa. 57. This being the result of the decisions, the Act of June 7, 1911, P. L. 702, Stew. Purd. Supp. 568, was passed defining a'distinterested witness as “being a witness not interested in such religious or charitable use, this act not being intended to apply to a witness interested in some other devise, bequest or gift in the same instrument.”</p> <p>It was ingeniously argued in behalf of the next of kin that the words “interested in some other devise, etc.,” mean that the act shall not apply where the witness is not interested in any gift for a charitable or religious use, but may be interested in “some other devise, etc.,” i. e., that the act is not intended to apply to a witness who is interested in some other devise, bequest or gift in the same instrument, that is, some other devise, bequest or gift than such charitable devise, bequest or gift. The effect of this construction of the act would be merely to remove the disqualification arising from the interest of the witness in some bequest other than for a charitable use, but to retain the disqualification arising from the interest of the witness in some bequest for another charitable use. According to this view, all of the charitable bequests would fall if one of the attesting witnesses should be held to be interested in any one of them.</p> <p>In our opinion this would be a very narrow and technical construction of an act of assembly, which is remedial in its nature and evidently designed to alter the existing law. According to the rules laid down by Lord Coke in Heydon’s Case, 3 Coke Repr. 18, as cited and commented upon by Judge Endlich in his work on the Interpretation of Statutes, Sec. 27, there should be considered, 1. What was the law before the act was passed; 2. What was the mischief or defect for which the law had not provided; 3. What remedy the legislature has appointed, and, 4. The reason for the remedy. Now it is clear that the theory of the prior decisions was that the will must be considered as an entire instrument, so that any interest in any part of it operated as an entire disqualification; and if it be admitted, as it is and must be, that the Act of 1911 applies to the case of a witness who would be disqualified by reason of his pecuniary interest as a legatee, it is difficult to see why it should not also apply to the case of a witness, who would be disqualified by reason of his interest in another charity. The two cases are in pari materia, and as was said in Umholtz’s License, 191 Pa. 177, a remedial statute is to be extended to cases in equal mischief. Brown v. Commonwealth, 3 S. & R. 273..</p> <p>We are, therefore, of opinion thát the legacies bequeathed to religious and charitable uses by the sixth and subsequent clauses of the will to and including the fifteenth are valid, and the exceptions filed by the next of kin to their allowance by the auditing judge are dismissed.</p> <p>2. By the fifth clause of the will, the testator bequeathed a legacy of $10,000 and certain portraits to the Pennsylvania Academy of Fine Arts. Richard T. Cad-bury, one of the subscribing witnesses, was at the date of the execution of the will, Paxson’s Est, 221 Pa. 98, the owner of a share of stock in that institution, which he afterwards sold for $20. As such stockholder he had the right of voting at elections and a free ticket of admission. Although he received no other pecuniary benefit, yet he had a right not possessed by the general public without payment to the use and enjoyment of the collection of works of art, and of the library, etc., as stated in the charter of the academy. These were valuable rights, and evidently there was some one who considered them worth $20, besides which his electoral franchise vested in him a right enforceable by law, if its exercise should be denied or impeded, and thus he had a personal interest in the academy. It is not possible for us to say that his interest was inconsiderable or not of sufficient amount to influence him or induce him to influence the testator. The law will not attempt to weigh and measure the advantage or interest in order to determine the competency of the witness. Kelly’s Est., 236 Pa. 54.</p> <p>' We, therefore, agree with the auditing judge, that the legacy to the Academy of Fine Arts is invalid, and its exceptions are dismissed.</p> <p>3. Mr. Cadbury was also the owner of ten shares of stock of the Provident Life and Trust Company, named as executor of the will and trustees under the fourth and also the residuary clauses of the will. The fact that he is assistant to the trust officér of the company is, of course, not important, Comb’s App., 105 Pa. 155, but his position as a stockholder is a very different one. The Provident Life and Trust Company is not only legally entitled to commissions as trustee upon the income collected by it, but the testator expressly authorized his trustee to deduct commissions from the income. Mr. Cadbury’s interest as a stockholder may be very small, but can hardly be said to be nonexistent. As the auditing judge forcibly and logically says, if the witness had been the owner of 9,000 shares, the total number of shares of capital stock being 10,000, there would probably be no question as to his interest, and if the test of interest is quality and not quantity the ownership of ten shares must be held to give him a present and certain interest. The facts were very different in Jeanes’s Est., 228 Pa. 537, for it was there said that it was scarcely conceivable that the company would claim compensation as trustee, and if claimed it would hardly be allowed; and in the same case the Supreme Court said that if the witness “was interested within the contemplation of the act the amount of his interest would be immaterial for the doctrine de minimis non curat lex has no application. The test is not quantity, but quality.</p> <p>The case of an executor is different under the decision in Jordan’s Est., 161 Pa. 393, but as was said in Kessler’s Est., 221 Pa. 314, at page 322, that case is authority only for the exact question therein decided and its doctrine will not be further extended. The trustee in this case stands in a very different position, especially under the residuary clause where it is given an unlimited discretion for all time to allot the net income among such charitable institutions as it the trustee may deem wise. An executor is only entitled to commissions as compensation for his services in the administration of the estate, which are not affected by the nature of the charitable bequests or their validity. We agree with the auditing judge that this branch of the case is ruled in principle by Stinson’s Est., 232 Pa. 218. The exceptions of the trustee filed to the disallowance of the legacies in the third and in the residuary clauses of the will are, therefore, dismissed.</p> <p>4. The auditing judge has so well disposed of the questions raised upon the bequest of $150,000 for care of his cemetery lot, that it is not necessary to add anything to what he has said.</p> <p>The court dismissed the exceptions. The Provident Life & Trust Company of Philadelphia, executor and trustee, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 97, Jan. T., 1915, by Virginia Hay Stewart, Southard Hay, Fanny Hay Hall, Lucy L. Hay, Edith Hay Moore, Margaret Hay Dewhurst, Horace Kessler Subers, A. Theodora Subers, Abbie Hay Subers, Helen B. Subers, Mildred Subers, C. Van Artsdalen Subers, R. Brenda Subers, William H. Hay and Albert E. Hay, next of kin, from decree of O. C. Philadelphia Co., July T., 1914, No. 287, dismissing exceptions to adjudication in Estate of Henry B. Palethorp, deceased.</p> <p>Exceptions to adjudication. Before Dallett, P. J.</p> <p>The facts appear in Palethorp’s Est., Provident Life & Trust Company’s App., 249 Pa. 389, and in the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. Virginia Hay Stewart, et al., next of kin, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

Appeal, No. 59, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1913, No. 2913, for defendant n. o. v., in case of Frederick Ceen v. The William Cramp and Sons Ship and Engine Building Company. Trespass to recover damages for personal injuries. Before Bregy, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,200.

<p>Appeal, No. 27, Jan. T., 1915, by defendants, from judgment of C. P. No. 3, Philadelphia Co., March T., 1914, No. 5096, entered for plaintiff for want of a sufficient affidavit of defense, in case of Bethlehem Steel Company v. Charles W. Topliss and Frank H. Street, now or late trading as Topliss & Street.</p> <p>Assumpsit on hook account.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court made absolute plaintiff’s rule for. judgment for want of a sufficient affidavit of defense.. Defendant appealed.</p> <p>Error assigned, among others, was in making absolute, plaintiff’s rule for want of a sufficient affidavit of defense.</p>

<p>Sales—Warranty—Implied warranty — Damages — Measure of damages—Statement of claim-~Demurrer. ■ < ,</p> <p>■ 1. An implied warranty will arise if goods are purchased for a particular use of which the buyer informs the seller, and the rule is especially applicable where the seller is the manufacturer of the article sold.</p> <p>2. The general rule is that a contracting party is liable for the damages which are .the natural consequences of the breach, where the vendor undertakes to furnish an article for a certain specified use.</p> <p>3. Where a manufacturer contracts to supply an article which he manufactures) to be applied to a particular purpose,'sq that the buyer necessarily trusts to thé judgment of the manufacturer, the law implies a promise or undertaking on his part that such article is reasonably fit and proper for the purpose.for which he professes to. make it, and for breach of such warranty the seller will be liable for the damages which are the natural and probable consequences thereof. ' ■</p> <p>4. Where in an action for the breach of an.implied warranty that certain elbows or pipe-bends, furnished by defendants in connection with pumping apparatus which they were installing for plaintiff, should be fit for use in connection with certain piping, the statement of claim averred that defendants had guaranteed that the pipes should withstand a pressure of at least 250 pounds and that the elbows had been bought for use in connection with the pipes; that after the pipes and elbows had been encased in' concrete the elbows burst at a pressure of 235 pounds, and that defendants thereupon furnished new elbows, but refused to remove the defective elbows and substitute therefor the new opes, and that plaintiff was thereupon compelled to do the work arid sought to recover the cost thereof, the' items of which were properly set forth, the court made no error in entering judgment for plaintiff pri demurrer to the statement of claim. ' ■</p> <p>5. In such, case the contention that the defective elbows had been finally accepted and the entire transaction closed when they were cemented in the trenches is unsound, and particularly so in view of the fact that defendants recognized their failure to provide proper elbows under the contract and furnished new ones.</p> <p> Practice, Supreme Court—Assignments of error—Defective assignments. </p> <p>6. Assignments of error are not in proper form and will not be considered by the Supreme Court where they are in the language of the pleader and do not contain the judgment, decree, order, or finding or conclusions of law about which complaint is made.</p>

Appeal, No. 153, Jan. T., 1915, by defendant, from judgment of C. P. Erie Co., Sept. T., 1911, No. 196, on verdict for plaintiff in case of Vera M. Phillips, by her next friend, W. L. Moore, v. Erie County Electric Company. Trespass to recover damages for death. Before Benson, J. The action was begun on August 14,1911. On June 2, 1913, plaintiff asked leave to amend statement of claim, which amendment was allowed.

<p>Appeal, No. 57, Jan. T., 1914, by plaintiff, from decree of C. P. Delaware Co., in equity, Sept. T., 1911, No. 239, dismissing bill in equity for am accounting in case of Stanley Doggett v. Henry G. Feitig and Gertrude O. Feitig and Eugenie Hamel.</p> <p>. Bill in equity for an accounting.</p> <p>The facts appear in the opinion of the Supreme Court and in the following opinion of Broomall, J., dismissing exceptions to the findings of fact and conclusions of law of the trial judge:</p> <p>“This contention in its last analysis comes to this i</p> <p>“Feitig owned certain property* which was costing a certain amount. He represented to Doggett that Fry was the owner and induced Doggett to buy from Fry at a price in excess of what it was costing Feitig, and Feitig pocketed the difference. If Feitig had communicated to Doggett that he was the owner, what would it have been open for Doggett to do? He could have either refused to buy at all, or he could have proceeded to buy from Fry as he did. There was no relation between Feitig or any one and him which, the communication would have enabled him to assert. The most that he can ask is that he now have the opportunity of deciding whether he buy at all. If he decides not to buy, then he must return the property and receive back the money he has paid. This he declines to do, and, therefore, we do not have the information necessary to make a decree in his favor.”</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 143, Jan. T., 1914,, by defendants, from judgment of C. P. Chester Co., Jan. T-, 1914, No. 2, on verdict for plaintiff in case of Anthony Timlin v. American Patriots.</p> <p>Assumpsit on life insurance policy. Before Butler, J.</p> <p>The. opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,695 and judgment thereon. Defendant appealed. , ....</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 44, Oct. T., 1915, by David W. Kimberly, ancillary administrator, C. T. A., of the estate of Amos E. Kimberly, deceased, in estate of Peter L. Kimberly, deceased.</p> <p>Exceptions to adjudication. Before Williams, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. David W. Kimberly, ancillary administrator, c. t. a., of the estate of Amos E. Kimberly, appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 113, Oct. T., 1914, by Abner Rush, annuitant legatee, from decree of O. O. Mercer Co., Oct. T., 1912, No. 60, granting petition of trustees for leave to distribute certain assets in estate of Peter L. Kimberly, deceased.</p> <p>Petition for leave to distribute certain assets bequeathed to trustees by Peter L. Kimberly, deceased. Before Williams, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted the petition. Abner Rush appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 43, Oct. T., 1915, by John C. Bell, Attorney General for the Commonwealth of Pennsylvania, from decree of O. C. Mercer Co., Jan. T., 1913, No. 19, dismissing exceptions to report, of auditor in estáte of Peter L. Kimberly, deceased.</p> <p>Excéptions to report óf Q. Á. Gordon, Ésq., Auditor. Before-Williams, P. j. ,</p> <p>The opinion of the Supreme Court states the facts. •</p> <p>~ Thé court dismissed the exceptions. John C; Bell, Attorney General for the Commonwealth of Pennsylvania, appealed.</p> <p>: Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 304, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 4, Philadelphia Có., June T., 1909, No; 1091, on verdict for defendant, in case of John Wanamaker v. City of Philadelphia.</p> <p>! Trespass to recover damages for injuries to reál estate alleged to have been sustained in. consequence of the widening of a street abutting thereon. Before Willson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Error assigned, among others, were rulings on evidence.</p>

<p>Appeal, No. 183, Jan. T., 1914, by defendants, from decree of C. P. Luzerne Co., Oct. T., 1912, No. 4, in equity directing the reformation of a deed, in case of Albert E. Haines v. Jacob B. Stare and Stella Snyder and Jacob Snyder, her husband.</p> <p>Bill in equity for the reformation of a deed.</p> <p>Fuller, P. J., filed the following findings of fact and conclusions of law:</p> <p>1. The plaintiff, Albert E. Haines, on September 15, 1903, executed, acknowledged and delivered to Jacob B. Stare and Sophia Stare, a quit claim deed of that date, recorded September 17,1903, in Deed Book No. 413, page 491, of all his right, title and interest in a certain tract of land situate in the Borough of West Hazleton, and Township of Hazle, said county, containing 51 acres and 21 perches.</p> <p>2. Said deed was intended and understood. by the parties to convey only the plaintiff’s undivided interest in certain unsold lots and in the unpaid purchase-money owing upon certain sold lots owned by the parties in common, but by a mutual mistake of the parties at the time of its execution, the deed embraced certain other lots owned by the plaintiff in severalty.</p> <p>3. The conclusion of such mutual mistake is derived from the circumstances, (1) that the parties at the time were negotiating for an extinguishment of plaintiff’s undivided interest, in settlement of a dispute amongst - them respecting the same; (2) that the land owned by the plaintiff in severalty was not in their contemplation at all; (3) that the conveyance was only a quit claim of right, title and interest and not a warranty deed; (4) that the original general description of the entire tract as laid out in lots by the parties was naturally employed in drawing the conveyance, while the fact of plaintiff’s ownership in severalty of a portion was by an easy inadvertence overlooked; (5) that one piece of the land held in severalty was the very homestead itself of the plaintiff, on which he was residing at the time and continued to reside afterward; (6) that each of the grantees made sundry subsequent declarations to the effect that plaintiff owned the land in question; (7) that neither of the grantees made any effort to take possession, dr ány assertion of ownership, or any manifestation whatso-* ever indicating a claim to the land, neither Sophia Stare , prior to her death in 1906, nor her devisees and Jacob B. Stare, until November, 1911, when ejectment was brought for the homestead property, and that during the period from 1903 to 1911 all of the land was permitted to be assessed as the property of the plaintiff and his later grantees; (8) that the consideration moving to the plaintiff in the transaction was $650 in cash, for his interest, amounting to about $1,300, in the unpaid purchase-money, and a conveyance of their interest in ten of the unsold lots for his interest in about sixty of thosé lots, a very advantageous ¡transaction for them, with the balance of consideration lai'gely in their favor in respect to the extinguishment of his undivided interest; and the inclusion of the property in question would give them additional value amounting to $3,000 for which they gave absolutely no consideration whatever.</p> <p>4. The plaintiff by warranty deed in 1904, conveyed the homestead property to .Lahm and in 1910, by like deed, conveyed the other property to Jones. Lahm in 1908 convéyed to White. White and Jones now have possession under thbse deeds.</p> <p>5. Sophia Stare died November 24, 1906, testate, devising ..all her real estate to the present defendants.</p> <p>6. The mistake was not discovered by plaintiff until after November 17, 1911, when the defendants brought ejectment for the homestead property.</p> <p>7. The intention of the parties and the equities of the situation can only be conserved by reforming the conveyance as prayed in the bill and hereafter set forth in the decree nisi.</p> <p>We state in our own language the following conclusions of law:</p> <p>1. Plaintiff has clearly established his right to reformation of the deed unless debarred by his own inadvertence at the time of its execution.</p> <p>2.. His inadvertence, however, in which the grantees shared, was quite natural under all the circumstances, does not belong in the category of supine negligence which would bar relief, and wbuld be too harshly punished by refusing the reformation which would make the conveyance conform with the plain intention of the parties and with...the manifest equities of the situation.</p> <p>; 3. The’ prayer for relief should be granted.</p> <p>Exceptions to the findings of fact and conclusions of law were dismissed by the court in banc. Defendants appealed,</p> <p>Errors assigned were rulings on evidence and in dismissing the exceptions.</p>

<p>Appeal, No. 385, Jan. T., 1913, by plaintiff, from judgment of O. P. Columbia Co., Dec. T., 1911, No. 79, for defendant n. o. v., in case of Mary O’Donnell v. The Philadelphia and Reading. Coal & Iron Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband.</p> <p>The facts appear in the following excerpt from the opinion of Evans, P. J., sur defendant’s motion for judgment n. o. v.:</p> <p>The accident which resulted in the death of the plaintiff’s husband happened during the afternoon of January 4, 1911, at the defendant’s Hammond Colliery in Schuylkill County.</p> <p>Binding instructions for the defendant were refused upon the trial and the jury returned a verdict for the plaintiff for $6,124.63.</p> <p>Anthony O’Donnell, the plaintiff’s husband, was accidentally killed. The defendant company at the time of the accident was engaged in the mining of anthracite coal at its Hammond Colliery. O’Donnell, the deceased husband, was employed on the day of the accident as a laborer in and about the mines. He quit work some time during the afternoon. He and nine other workmen, employees of the defendant company, entered a boat at the bottom of. the slope for the purpose of being lifted out of the mine. The proper signals were given and the boat started up the slope, and when the surface or top of the slope was reached, the engine was not stopped as.it should have been, by the hoisting engineer, but con: tinued on up the slope, and crashed through the éngine house, thereby wrecking the boat and killing plaintiff’s husband.</p> <p>The negligence of which the plaintiff complains, is, that the defendant company required the hoisting engineer, in addition to operating the tender engine, which lowered the men into the mine and lifted them therefrom, in obedience to signals, to further look after the oiling of two air compressors in the engine room while the men were in the mines. In other words, that the defendant was negligent in requiring the hoisting engineer to look after the oiling of the air compressors in addition to operating the tender engine; that too much work Was required of the hoisting engineer; that too many duties were imposed on him, and that because of that fact, the defendant was negligent and such negligence caused the accident and as a consequence, O’Donnell’s death.</p> <p>The evidence disclosed, that the air compressors were in the same room as the tender engine, and about 35 feet distant therefrom; that some two hundred and twenty men were employed in the mines at the slope where the accident happened; that they began to arrive and go down between five and six o’clock in the morning; that Gaughan, the hoisting engineer, came on duly shortly before seven o’clock on the morning of the accident; that generally by eight o’clock, the men were all lowered into the mines; that the hoisting engineer had but little to do from that time until about two o’clock in the afternoon, when the men began to come to. the bottom of the slope to be lifted out of the mines; that between eight o’clock in the morning and two o’clock in the afternoon there were but occasional lowerings or hoists to be made; that the oil cups on the air compressors required filling approximately every two hours, some of them not so often; that the lowering of the boat carrying men into the mines and lifting or hoisting the same therefrom was always done in obedience to proper signals given to the hoisting engineer and by him acknowledged ; that he understood the same before the boat was lowered into the mine or lifted from the mine;, that all the machinery in the engine room and appliances for lowering the men into the mines and lifting them therefrom, at the time of the accident, were in good order and condition; that the indicator on the engine in plain view of the hoisting engineer, indicated at all times when a hoist was being made, the location of the boat as it travelled up the slope; that the actual time of lifting the boat from the mines carrying -men was from three to four minutes ; that the. hoisting engineer never complained of having too much work to do; that life would not .be imperiled if the oil cups on the air compressors got empty; that at most, if they got empty and remained empty for a half hour or longer the guides on the machinery would cut and some of it perhaps stop; that about four o’clock on the afternoon of the accident Gaughan, the hoisting engineer, received a signal to make a hoist that men were in the boat; that he answered as he was required to do, before starting the engine ; that he understood the signal and then immediately started the engine, to make the hoist and after doing so, left the engine and went over to fill the oil cups on the air compressors, and having stayed too long he failed to go back to the engine in time to reverse the lever when the boat reached the top of the slope, and because of such failure the boat crashed through the engine house and -killed O’Donnell; that the instructions to Gaughan were never to leave his engine while making a hoist; that prior to the happening of the accident Gaughan appeared to be a competent and reliable hoisting engineer.-</p> <p>The main quéstion submitted to the jury was, whether a reasonably prudent mining corporation would, under the conditions which prevailed at the Hammond colliery, have required the hoisting engineer to look after the oiling of the air compressors in addition to performing his duties as the hoisting engineer in operating the tender engine.</p> <p>It should be kept in mind that the boat could only be lowered into the mines and lifted therefrom in obedience to signals given to Gaughan and that before proceeding to lower or lift the boat, he was required to /'answer back that he understood the signal received. If he had obeyed his instructions never to leave his engine while making a hoist the accident would not have happened. In fact it would not have happened except for his carelessness in leaving the engine while the boat was being lifted up the slope. It required from three to four minutes to make the hoist after the engine was started. The indicator on the dial in full view of Gaughan, indicated the location of the boat as it came up the slope. Up to the time of the accident Gaughan had proved to be a competent engineer. He had been in the employ of the defendant as hoisting engineer at the place where the accident occurred for eleven months before the accident. He did not complain of having too much work to do. Prom eight o’clock in the forenoon until approximately two o’clock in the afternoon, he had but little work to do. In fact, during that time he had nothing to do except to remain at his post and make an occasional hoist and fill the oil cups on the air compressors, and that, according to the evidence, would not take more than from four to five minutes approximately i every two hours.</p> <p>In Bradbury v. Kingston Coal Co., 157 Pa. 231, it was decided that: an engineer employed to run an engine at a colliery is a fellow servant of the miner whom the engineer raises and lowers in the shaft of the mine.</p> <p>In this case an engineer in charge of a colliery (hoisting) engine, attempted to stop the engine by pulling his reverse lever. He pulled it a little too far, not intending to do so, and thereby caused the cage (boat) in the shaft to shoot upward rapidly. Plaintiff’s decedent who was on the cage, attempted to jump off on the upper platform, but missed his footing and fell down the shaft and was killed. The cage stopped almost at the instant he jumped off, and those who remained on it were unharmed. Held, that there could be no recovery against the Colliery Company, because Bradbury’s death was due to the mistake of the engineer, a fellow servant. At page 238, Justice Green says: . /</p> <p>“Now the engineer was a fellow servant of the der ceased and, for his mistake, whether negligent or otherwise, the defendant company is certainly not liable. We cannot see that it is of any consequence what his reason was for attempting to stop the engine. It was. not. his desire, or this attempt to stop the engine, no matter from what cause, that of itself alone, caused the accident, but the manner of stopping it. Stopping the engine would have prevented the accident, and this is what the engineer attempted. There was no defect in the machinery that prevented him from stopping it just when he wanted to stop it. But he pulled the reverse lever a little too far, and that, and that alone, let on the steam and caused the upward motion. The upward motion caused the apprehension of the deceased, and that apprehension caused him to do the very rash act of jumping from the cage when it was in rapid motion, and thereby losing his life. Had the engineer pulled his lever more carefully and stopped it when he intended to, in the centre notch of the ratchet, the upward motion of the cage would not have taken place, and the accident would not have occurred. How then is the defendant to be held responsible, unless it is legally responsible for the fault, or the mistake or negligence of the engineer, who was the.fellow servant of the deceased? We cannot see* and therefore are of opinion that the judgment should be reversed for that reason.”</p> <p>In Spees v. Boggs, 198 Pa. 112, it is held, that: A girl employed in the tailoring department of a dry goods store is a fellow-servant of a boy employed in the same store, to run an elevator set apart for the use of employees in going to and from their work from one floor of a building to another as their duties required. To constitute two persons fellow-servants, it is sufficient if they are in the employ of the same master, engaged in the same common work and performing duties and services, for. the same general purpose.</p> <p>In the light of these decisions, Caughan and the plaintiff’s deceáséd husband were fellow-servants at the time of the accident.</p> <p>Verdict for plaintiff for $6,124.63. The court subsequently entered judgment for defendant n. o. v.</p> <p>Error assigned was the judgment of the court.</p>

Appeal, No. 276, Jan. T., 1914, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1913, No. 150, for plaintiff, on submission to court without a jury, in case of Benjamin Levy v. Minnie K. Hershberger. Ejectment to recover lands in Luzerne County. Fuller, P. J., filed the following opinion: This case after being duly brought to issue on abstracts and plea, has been duly submitted to the court for decision without a jury under the Act of April 22, 1874, P. L. 109.

<p>Equity—Deeds — Fraud—Bill to reconvey — Insufficient averments—Unpaid consideration—-Remedy at law—Attorney and client.</p> <p>1. It is not fraudulent per se for an attorney to take a deed from his client.</p> <p>2. A bill in equity to compel the reconveyance of certain real estate which had been conveyed by plaintiff to his attorney in payment for services and by him assigned for the benefit of his creditors, was properly dismissed where the fraud relied on as entitling plaintiff to relief was but an inference drawn from the fact that the real estate was worth more than the attorney’s services.</p> <p>3. In such case if any part of the consideration money was unpaid the plaintiff had an adequate remedy at law.</p>

<p>Appeal, No. 81, Jan. T., 1915, by defendant, from judgment of C. P. Luzerne Co., March T., 1915, No. 407, for plaintiff on case stated, in case of James McBride v. John J. Mangan.</p> <p>Case stated to determine title to real estate. Before Woodward, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>,The court entered, judgment for plaintiff on the case stated. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p> Practice, Supreme Court—Equity—Findings of fact—Appeals. </p> <p>1. Findings of fact by a chancellor supported hy evidence will not be reversed by the Supreme Court in the absence of manifest error.</p> <p> Equity practice—Bills-for an accounting—Interest on amounts found due defendant—Bequests for findings—Answers—Harmless error—Jury trial—Judicial discretion. </p> <p>2. Where in a suit in equity for an accounting, it appears that the plaintiff is indebted to the defendant, it is not error to direct the plaintiff to páy interest upon the amount found due.</p> <p>3. The fact that requests for findings of fact and conclusions of law have been answered in groups by the lower court is not reversible error .where it is admitted by counsel for the appellant that the grouping of the answers was not material to the issues involved.</p> <p>4. Where an equity proceeding has been pending in court for more than two and one-half years, and a decision adverse to the plaintiff was rendered, the court made no error in thereafter refusing to grant a jury trial upon the issues involved and properly decided that after plaintiff had elected to abide by the action of the court and had waited until the issue was determined, it was too late to impose upon both parties the additional delay and cost of a trial by jury. .</p>

<p>Appeal, No. 173, Jan. T., 1915, from judgment of C. P. Blair Co., March T., 1915, No. 67, on verdict for plaintiff in case of. Walter F. Glunt v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts appear in the following opinion of Bald-, rige, P. J., sur defendant’s motion for a new trial and for judgment n. o. v.</p> <p>The plaintiff was employed by the defendant company as a signal repairman. In that capacity he was sent, on the 4th day of December, 1912, to a point just west of Birmingham, where the defendant company maintains and operates three tracks, all used in interstate commerce. The plaintiff was engaged in drilling holes in the ends of the rails, for the purpose of bonding them together, on the north track, known as track No. 3. He was in company of a fellow employee, but without any foreman, the latter having joined the rest of the gang which was working at another point on the defendant company’s road. Information had been given the plaintiff by his foreman that the middle track, known as track No. 2, would be used on the day in question for eastbound trains only. Shortly after 10 o’clock in the morning, while plaintiff was engaged in operating his drill, a freight train approached on track No. 3. The plaintiff, upon observing the train began to unfasten his drill from the south rail, to which it was attached. When the drill was released the train was so close to the plaintiff, according to his testimony, that he concluded it would be dangerous to cross over track No. 3, upon which he was working, to the embankment, and, therefore, stepped on track No. 2. While standing on this track, waiting for the freight train to pass, and without receiving any notice or warning, a passenger train, west-bound, running at a high rate of speed, struck plaintiff, and injured him.</p> <p>This action was brought under the Act of Congress of April 22, 1908, 35 U. S. Stat. 65, c. 149, known as the Federal Employers’ Liability Act, which provides that any common carrier shall be liable in damages to any person suffering injury while he is employed by such carrier in interstate commerce......resulting in whole or in part from the negligence of any of the officers, agents or employees of such carrier, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, tracks, road-bed, etc.</p> <p>The question of the negligence of the defendant was submitted to the jury, and a verdict was found in favor of the plaintiff.</p> <p>A motion was made by the defendant company to enter judgment n. o. v., and if that motion was refused that a new trial be granted.</p> <p>The defendant company contends that it is not liable because—</p> <p>(1) The plaintiff was not engaged in interstate commerce.</p> <p>(2) He was not injured while engaged in interstate commerce.</p> <p>(3) There was an assumption of risk.</p> <p>The plaintiff was engaged in bonding the rails together with copper wires, in connection with the installation of a new and incomplete automatic electric signal system.</p> <p>It is contended in support of the first proposition that the plaintiff was not employed on any instrumentality used in interstate commerce. In support of this proposition we are referred to the case of Jackson v. Chicago, Milwaukee & St. Paul Ry. Co., 210 Federal Reporter 495. The plaintiff therein was engaged in the construction of an incompleted tunnel, which was to be used by the defendant company in interstate commerce. The court held that there could be no recovery, as the tunnel was not used in the transporting of interstate commerce.</p> <p>Also Bravis v. Chicago, Milwaukee & St. Paul Ry. Co., 217 Federal Reporter 234. The plaintiff was engaged in the construction of a bridge which was some 600 feet distant from the railroad, on a cut-off, which had never been provided with rails or used as a railroad. In an action to recover for injury the court held that the evidence did not sustain the allegation that the plaintiff was injured while engaged in interstate commerce.</p> <p>It will be noticed that in these two cases no instrumentality nor construction, nor any part thereof, had been or was used or engaged in interstate commerce.</p> <p>The case at bar differs from the foregoing line of authorities. It is true the signal system at this time- was not in operation, but the rail in which the holes were being drilled was part of the roadbed which at the time of the injury was used in interstate commerce. The rail was to be utilized in connection with the new signal system, but it also entered into and formed a part of the roadbed. The fact that ultimately this rail’s' use was to be enlarged and its efficiency made greater did not deprive it of being used as an instrumentality in interstate commerce at that time.</p> <p>In the case of Pederson v, Delaware, Lackawanna & Western R. R. Co., 229 U. S. 146, the plaintiff was employed in connection with repairing a bridge used in both interstate and intrastate commerce. While crossing a temporary bridge, used in place of the bridge being repaired, carrying a sack of bolts or rivets to be used in the bridge, he was injured. The court held that the act under discussion would not apply before the track equipment, etc., had become an instrumentality, but work done on an instrumentality during its use makes it applicable. Mr. Justice VanDevender says, “True, a track or bridge may be used in both interstate and intrastate commerce, but when it- is so used it is none the less an instrumentality of the former; nor does its double use prevent the employment of those who are engaged in the repair or in keeping it in suitable condition for use from being an employment in interstate commerce.”</p> <p>We are of the opinion that the plaintiff was engaged in work in connection with interstate commerce.</p> <p>The defendant further contends that even though the plaintiff had been engaged in interstate commerce work; that he was not injured while he was thus engaged; that he had ceased his activities and stepped from the place he was working to another track. This is a too narrow and strained interpretation, and is not borne out by sound reasoning nor judicial authority.</p> <p>■ The case of Illinois Central R. R. Co. v. Behrens, cited by defendant, does not support that contention. In that case the plaintiff was a foreman and was injured in a head-on collision at a time when he was handling cars loaded with freight which was wholly intrastate. His engine at the time aided the movement of cars that were not destined for other states; the service he was rendering, was in no way connected with interstate commerce.</p> <p>The plaintiff in the case at bar was interfered with by the movement of an interstate train, and compelled him for the moment to cease his drilling. But he was on the property of the defendant company, at the place where his work was being done, and under the instructions of his employer.-</p> <p>In the case of San Pedro, Los Angeles & Salt Lake R. R. Co. v. Davide, 210 Federal Reporter 870, a section hand had been engaged in interstate commerce during the day. He was engaged in riding on a hand-car furnished by the railroad company for the purpose of returning from his place of work to a camp maintained by the company, and where the employees lived, and also taking the hand-car to a point where it was taken from the- tracks. . An accident occurred by this hand-car colliding with another one. The court held that the employee was engaged in interstate commerce; that although at the time he was injured he was returning to his place of abode, he had not yet been discharged from his day’s work, and was acting under orders of the foreman.</p> <p>In the case of Lamphere v. Oregon Railroad & Navigation Company, 196 Federal Reporter, 336, a locomotive fireman, employed by a railroad company engaged in interstate commerce, who was ordered to report at a station where he was to be transported to another station to relieve a crew of . an interstate commerce train, was struck and killed as he was approaching the station, through the negligence of the servants of the company, and it was held that he was injured while engaged in interstate commerce.</p> <p>In North Carolina Railroad Company v. Zachery, 232 U. S. 248, a fireman, whose engine had not yet been coupled to the interstate commerce cars, left his engine, crossed the tracks to go to his boarding house and was struck by an interstate train. It was held that he was injured while engaged in interstate commerce. The court said: “It is argued that so far as appears deceased had not previously participated in any movement of interstate freight, and the other cars had not yet been attached to his engine, his employ in interstate commerce was still in futuro. It seems to us, however, that his act in inspecting, oiling, firing and perparing his engine for the trip to Salem were acts performed as a part of interstate commerce, and the circumstances that the interstate freight cars had not yet been coupled up is legally insignificant.” Otherwise, if a workman would stop for a. moment to observe his work, go a few feet to get a tool, etc., and be injured, he could not recover under the law. This statute will stand no such construction.</p> <p>The most liberal interpretation given this statute, in so far as our investigation extends, is in the case of Grow v. Oregon Short Line Company, 138 Pac. Repr. 398; the defendant, an interstate carrier, was, as in this case, installing an automatic block signal. An employee, was measuring off and locating places to put poles. At quitting time, in company with other employees, the plaintiff got on a tricycle, operated on the track of the defendant company, was run down by a train, moving at a fast rate of speed, and killed. The court held, in supporting a verdict for the plaintiff, that the deceased was killed while employed in interstate commerce. It will be noted that the block signal system on which the employee had been working was not completed, and was not in use by the defendant in interstate commerce where the deceased man had been working; although this system was in use in carrying on interstate commerce on certain blocks east and west of that point.</p> <p>The court held in the Pederson case, supra, where the man was killed carrying materials to the place of his work, that there was no merit in the objection that the accident did not occur while the employee was engaged in interstate commerce work.</p> <p>The facts and authorities point irresistibly to the conclusion that this plaintiff was injured while engaged in interstate commerce as contemplated by the statute.</p> <p>The defendant contends further that there can be no recovery in this action, as there was an assumption of risk. The work engaged in by the plaintiff was more or less of a hazardous character, as it required him to be upon tracks where trains were passing, and the plaintiff in undertaking to do the work assumed the risks incident to the employment in which he was engaged, but he did not assume dangers resulting from the negligence of others.</p> <p>The Supreme Court of this State, in the recent case of VanZandt v. Philadelphia, Baltimore & Washington B. R. Co., 248 Pa. 276, held that a railroad company owes a duty to protect and care for its workmen on its tracks. If a railroad fails to exercise and discharge this duty imposed by the law they are liable.</p> <p>The question of the defendant company’s negligence was one of fact, and was submitted, in the case at bar, to the jury for their determination.</p> <p>In the case of New York, New Haven & Hartford R. R. Co. v. Pontillo, 211 Federal Reporter, 331, relied upon by the defendant,' the deceased was a- track walker, who was in a position of safety, but as tbe train approached he suddenly stepped on the tracks in front of the rapidly moving train. The court held that under that state of facts there could be no recovery.</p> <p>The facts in this case are entirely dissimilar. It is contended in this action that if the engineer of the approaching train had exercised due care he could have seen the plaintiff and could have given him ample warning of the train’s approach. Whether or not the engineer exercised the care that the circumstances required, and whether the foreman was negligent in giving instructions as to the running of trains, were questions for the jury to consider.</p> <p>After a careful consideration of the argument advanced in support of defendant company’s motions we find no reason to disturb the legal position'taken at the trial.</p> <p>Verdict for plaintiff for $6,421.77 and judgment thereon. Defendant appealed.</p> <p>Error assigned, inter alia, was the refusal to enter judgment for the defendant non obstante veredicto.</p>

<p> Negligence—Railroads—Passengers—Collision—Presumption of defendant’s negligence—Duty of defendant to show contributory negligence. </p> <p>1. Where a passenger on a railroad train is injured by any accident connected with the means or appliances of transportation, ‘such as a collision of a train on which he is riding with another train on the same track, a presumption arises that such accident must have resulted from some negligent act of omission or commission of the railroad company without which the accident would not have occurred.</p> <p>2. Where a passenger on a railroad train is injured in a collision between two trains on the same track, the presumption of the defendant's negligence arises from the fact that such accident happened independently of anything that the passenger may or may not have done. In an action for the injuries sustained therefor, the passenger is not required to show that he was not guilty of contributory negligence before the presumption of the defendant’s negligence will arise. If the plaintiff’s case is free from contributory negligence but the defendant relies on the plaintiff’s negligence .to defeat recovery, he must establish this fact as a matter of defense to the satisfaction of the jury.</p> <p>3. Where a passenger on a train while walking from the lavatory to his seat in the sleeping car, was thrown to the floor and severely injured in consequence of the collision of the train with another train on the same track, the court erred in refusing to affirm a point which charged the jury that “where a passenger on a railroad car is injured by a collision between the train in which he is riding with another train on the same track, the presumption of negligence on the part of the company carrying the passenger arises” and a verdict and judgment for defendant was reversed.</p> <p>4. In such case it was error for the court to instruct the jury that unless they found from the evidence that the defendant company was negligent and the specific manner in which it was negligent, the plaintiff could not recover.</p>

<p>Appeal, No. 106, Jan. T., 1915, by defendant, from judgment,of O. & T. of Delaware Co., March Sessions, 1914, No. 123, on verdict of guilty of murder of the first degree in case of Commonwealth of Pennnsylvania v. Boland S. Pennington.</p> <p>Indictment for murder. Before Johnson, P. J.</p> <p>The homicide in question was committed on November 7,1913, at the Brick House Farm in Edgmont Township, Delaware County, by the defendant and one George March. March was tried first and convicted of murder of the first degree. The murdered man, S. Lewis Pinkerton was overseer of the Brick House Farm but did not live there. Both March and the defendant were employees under Pinkerton. Before the time of Pennington’s employment and after that up to the time of the commission of the offense George March lived on the Brick House Farm with a certain Mary Louise Barber, with whom he had illicit relations. The defendant had been employed by Pinkerton on October 7, 1913, and boarded with March from the time of his employment down to and after the commission of the crime on November 7,1913, There was no denial that the defendant participated in the affair and there was ample evidence to justify the conviction, if defendant was mentally responsible. The defense set up was that the defendant was not mentally responsible but was an imbecile and unable to distinguish between right and wrong. The jury found a verdict of guilty of murder of the first degree, and sentence of death was passed. The record did not disclose that when the jury returned and asked that the judge’s charge to the jury concerning expert testimony should be read, the court while it did not read the charge as originally given, fully instructed the jury on the question of expert testimony. Defendant appealed.</p> <p>Errors assigned were as follows:</p> <p>(1) The learned court erred in refusing the defendant’s motion for a continuance made at the opening of the trial before the defendant was arraigned; the motion, answer of the district attorney and ruling of the court thereon as taken down by the official stenographer at the time being as follows:</p> <p>By Mr. Williams: “A. J. Williams, attorney for the defendant, applies to the court for a continuance for the nonattendance of Mary Louise Barber, who was duly subpoenaed by the defendant to appear at this time in March of this year at the last term of court, and who is unable to attend because she is now in a hospital at West Chester as the result of giving birth to a child two days ago.</p> <p>“That said witness lived at the Brick House Farm where the crime in question took place; that the defendant lived with the witness and her husband, during the time that he was at the said farm, a period of approximately six weeks; that the defense to the crime in question goes to the mentality of the defendant; that the defense expects to prove by the witness, Mary Louise Barber, that she has observed certain acts and conduct of the defendant going to show that he is of weak intellect, and that he was dominated and influenced by suggestion of George March, who is jointly indicted with the defendant to the commission of the crime in question.</p> <p>“In addition to the testimony of this witness and other lay witnesses the defense will produce expert testimony going to show that the defendant is mentally irresponsible. There is no other witness to testify to the things that occurred at the farm other than the witness Mary Louise Barber.”</p> <p>By Mr. Hannum: “The district attorney agrees that the testimony of Mary Louise Barber which is relevant to this issue, taken and given at the trial of George H. March, shall be offered in evidence provided the defense desires it.”</p> <p>By Mr. Williams: “The’defense in answer to the agreement of the district attorney says, that the testimony taken in the March trial does not cover the points it expects to be able to prove by the testimony of Mary Louise Barber.”</p> <p>The Court: “It appearing at the bar of the court that this testimony offered is cumulative, the Commonwealth having agreed that the testimony taken of this witness on the former trial in George March and this witness were charged with the commission of this crime shall-be read so far as it is relevant if the defense requests it, the application for a continuance is refused.”</p> <p>Bill sealed for the defendant.</p> <p>■ (2) The learned court erred in not interfering and correcting the statement herein set forth of the district attorney which was forthwith objected to and taken down by the official stenographer at the time. The statement, objection thereto and comment of the court being as follows:</p> <p>By Mr. Hannum: ......Whether he intended to kill him or not, if in the perpetration of a robbery he struck that blow, and from that blow or from blows delivered by Pennington, and he was in it, he is guilty of murder in the first degree provided his victim died from any of those blows. And that is all there is in this case. It is either one thing or the other. There absolutely,—and I say it with vehemence—there is absolutely no middle ground, and don’t you take it, because if you do I say to you frankly and as a man you violate your oaths.</p> <p>By Mr. Williams: I object to the district attorney stating to the jury that they violate their oaths.</p> <p>The Court: You can take an exception to it.</p> <p>(3) The learned court erred in not complying with the request of the jury after it had been deliberating for approximately twenty hours, “to read, the judge’s charge to the jury concerning expert testimony.”</p>

<p>Appeal, No. 31, Jan. T., 1915, by defendant, from order of O. P. Warren Co., March T., 1912, No. 204, refusing to open judgment in case of Alwilda B. Daelhousen, Deceased.</p> <p>Buie to open confessed judgment. Before Hinckley, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The lower court refused to open the confessed judgment. Defendant appealed.</p> <p>Error assigned, among others, was in refusing to open the judgment.</p>

Appeal, No. 187, Jan. T., 1915, by defendant, from judgment of C. P. McKean Co., Oct. T., 1913, No. 21, on verdict for plaintiff in case of James Fink v. Frank Sullivan Smith, as Receiver of The Pittsburgh, Shawmut & Northern Railroad Company. Trespass to recover damages for personal injuries.

Appeal, No. 50, Jan. T., 1915, by defendant, from judgment of C. P. Northampton Co., June T., 1912, No. 30, on verdict for plaintiff in case of Thomas A. H. Hay, William O. Hay, M. P. McGrath and Robert M. Petty v. Lehigh Valley National Bank of Bethlehem. Trespass for the conversion of certain bonds.

<p>Appeal, Nos. 212 and 213, Jan. T., 1914, by defendant, from judgment of C. P. Delaware Co., June T., 1913, No. 224, on verdict for plaintiff, in case of Edward J. Frysinger and Edna Carolina Fry-singer, Ms wife, in the right of the said wife, v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The court charged the jury in part as follows: “She will also be entitled to be compensated in this case, we say to you, for the loss of her services. It does not appear to be proven that there were any domestic services in which the husband is interested. But she says she was a musician, up to two years ago, following it as a profession, and that she earned from fifteen to twenty dollars a week. In passing upon this item you will remember that for two years she has- not been engaged in this vocation or profession, whichever you call it. Whether she ever would be engaged in it again, or intended to abandon it, we do not know. To what extent this accident would have an effect upon her ability to teach it would be conjecture, largely, of course. But you can take that into consideration in passing upon what will compensate her for her loss.” (6.)</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff, for Edward J. Frysinger for $300 and for Edna Carolina Frysinger for $2,250 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were (6) charge of court and others referred to in the opinion of the Supreme Court.</p>

<p> Elections—Ballots—Error in ballots—Void election. </p> <p>In an election for five-couneilmen, four for terms of four years each, and one for an unexpired term of two years, the names of eight candidates were printed on the ballots, with instructions that five were to be voted for; opposite the name of each candidate the term for which he would serve, if elected, was indicated as being four years; no vote was cast for any councilman for a two-year term.- Eive of the candidates whose names were on the ballot were returned as elected. In quo warranto proceedings to test the right of those returned as elected, to hold office as councilmen, the lower court decided that no one had been elected for the short term; that the person receiving the lowest number of votes of those returned as elected should be ousted, and that the others were entitled to retain their seats. Held, that the election was not a free expression of a public choice, and was void, and judgment of ouster was entered against all the respondents.</p> <p>Gilroy v. Commonwealth, 105 Pa. 484, distinguished.</p>

<p>Appeal, No. 223, Jan. T., 1914, by defendant, from judgment of C. P. Lackawanna Co., March T., 1913, No. 431, on verdict for plaintiff, in case of Annie Short v. City of Carbondale.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Staples, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $4,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were (1) in refusing to direct a verdict for defendant and (8) in refusing to enter judgment for defendant n. o. v.</p>

Appeal, No. 308, Jan. T., 1914, by defendant, from judgment of C. P. Lackawanna Co., June T., 1913, No. 352, on verdict for plaintiff, in case of Tracy O. Frasier v. Scranton Gas & Water Company. Ejectment to recover lands in Lackawanna County. Before Newcomb, J. The opinion of the Supreme Court states the facts. The defendant filed an answer to which plaintiff demurred. The court sustained the demurrer and entered judgment for plaintiff. Defendant appealed.

<p>Appeals, Nos. 62 and 67. Jan. T., 1915, by plaintiff and defendant respéctively, from decree of C. P. Northampton' Co., June T:, 1913, No. 1, in equity for partition, in case of T. Campbell Fassitt, guardian of Clarissa M. Veile, a minor, v. Belle B. Seip.</p> <p>Bill in equity for piartition.</p> <p>: Exceptions to report of Frederick Green, Esq., Master. Before Stewart, P. J.</p> <p>The master’s report was in part as follows:</p> <p>It is the contention Of counsel for the. defendant that at the meeting May 8,1894, in the office of H. W. Scott, Esq., between Mr. Cope, Mrs. Florence R. Veile and Mr. Scott, her counsel, an agreement was reached which was in fact a compromise and family settlement, and that thereupon the receipt (Finding No.' 4) was drawn up find duly executed by Mrs. Florence R. Veile, who received a check for the first monthly payment of $40.00. This receipt contains this clause: “And hereby on behalf of the said Clarissa Yeile declare that I accept all the provisions contained and set forth in the said last will and testament (Theresa Yeile’s) and codicil thereto.” The master cannot agree to this view. The only proper party to make a valid agreement or compromise affecting the estate of this minor was her duly appointed guardian. The Easton Trust Company had been appointed to that office but a few days before this meeting. This guardian had the sole authority to act in this matter, but was not present or. consulted. The testimony as-to what took place at this-meeting is very meagre. It does not appear that there was any discussion as to the estate, no disclosure as to its value or annual income, nothing said upon which it is possible to base an idea of a fair adjustment or compromise. The amount to be paid was the exact sum which Theresa Veile directed should be paid monthly for the proper education, maintenance and support of Clarissá M. Yeile by the executor and trustee of her will. There does not seem to have been any compromise at all, certainly.no mutual concessions; just the payment of the amount due Clarissa M. Yeile under the will of Theresa Veile, and which Belle E. Seip was bound to make so long as she held the estate under the terms of that will. The receipt itself so describes the payment. This paper passed through the hands of careful attorneys. If it had been intended to be a written statement of an agreement to settle amicably any dispute under the will of Xavier Veile or Theresa Yeile, such fact would certainly have appeared therein in terms. It may well be, as claimed by plaintiff’s counsel, that counsel for Mrs. Yeile permitted her to sign this receipt because he knew that the minor’s estate could not be divested by it, and it was therefore harmless. Mr. James for the guardian may have had the same view but the master, regards it as significant that the receipt for the second payment, June 7, 1894, written in the same book by Mr. James, makes no reference to the previous receipt which contains Mrs. Veile’s acceptance of all the provisions of Theresa Veile’s will, and is in these words: “Easton, Pennsylvania, June 7,1894. Received of Isabella R. Seip, executrix and trustee under the last will and testament of Theresa Veile, deceased, $40.00, being the amount of monthly payment set ap'art for the maintenance and support of Clarissa Veile. (Signed Florence R. Veile for Clarissa M. Veile.)” If Mr. James had wished to take some action at this time to put the guardian on record as approving the previous receipt or the alleged family settlement, and making the guardian responsible in any degree for what Mrs. Veile had done, he would have taken advantage of this opportunity, when he had in his possession the check for the monthly payment of $40.00, payable to the order of the ward, and the receipt book in which to receipt for the payment. Instead of doing anything of this kind, he drew a carefully worded receipt for Mrs. Veile to sign for the regular monthly payment due under the will of Theresa Veile, and gave her the check unendorsed by the guardian. His action makes it plain that the legally constituted guardian would have nothing to do officially with the arrangement which had been entered into by the mother of the ward. The master is of the opinion that this adjustment could not be sustained under the authorities. They speak of family settlements that “if fair and equitable” should not be disturbed, etc; Johnston v. Furiner, 69 Pa. 449; or “if fairly made,” Walworth v. Abel, 52 Pa. 370; or “when made in good faith and with full disclosure,” Bierer’s App., 92 Pa. 265. As the master finds the fair rental value of these three properties is now and was at that time $4,800.00, it could not be claimed that a settlement based on a payment of $480.00 per year, and without any disclosure as to the value of the estate and the yearly rental, complied with these essential requirements. If this is the correct view with regard to this arrangement with Mrs. Florence Veile, it necessarily follows that the plaintiff is not estopped because of the payments made by Isabella R. Seip, executrix and trustee, to plaintiff’s mother from 1894 to 1911. That the plaintiff is entitled'to recover from hér cotenant mesne profits or rents cannot be disputed. The right of a tenant in common out of possession to recover his share of the income of the common property from his cotenant in possession was given by the English statute of 4 Anne c. 16, sec. 27. Tenants in common being seized per my et per tout, under the common law each one was entitled to the joint possession of the whole, and therefore there was no liability to account where one was in possession and the other was not. To remedy this the Statute of 4 Anne was passed. The English courts construed this act to apply only when one tenant in common receives the money from another person to which both parties are entitled, and keeps it all, or more than his just share. This statute is in force in Pennsylvania, and under it our courts have held that a tenant in possession need not account to his co-tenant unless he had actually received rent from a third party for the premises, or had entered into a contract to pay rent to his cotenant for the property occupied and used by him. See Norris v. Gould, 15 W. N. C. 187. This is a decision by Judge Thayer of the Common Pleas of Philadelphia, which Justice Mitchell in Enterprise Oil & Gas Company v. National Transit Company, 172 Pa. 421, commends and approves as “the best summary of the law in our own books” on this subject. See also Kline v. Jacobs, 68 Pa. 57; Coleman’s App., 62 Pa. 252. Under these decisions a tenant in common out of possession' in this State was without redress as against his cotenant who was occupying and using the common property until the passage of the Act of June 24, 1895, P. L. 237. This act gives the tenant out of possession the right to sue for Kis share of the rental value for the time the real estate was in the possession of the cotenant. Section one of this act provides: “In all cases in which any real estate is now or shall he hereafter held by two or more persons as tenants in common, and one or more of said tenants shall have been or shall hereafter be in possession of said real estate, it shall be lawful for any one or more of said tenants in common, not in possession, to sue for and recover from such tenants in possession his or their proportionate part of the rental value of said real estate for the time such real estate shall have been in possession as aforesaid; and in case of partition of such real estate held in common as aforesaid, the parties in possession shall have deducted from their distributive shares of said real estate the rental value thereof to which their cotenant or cotenants are entitled.” Upon his act and the Statute of 4 Anne is founded the right of the plaintiff to recover from the defendant mesne profits or rents not only for the Garren and Gies properties, rented by her to third parties, but also for the brewery property occupied and used by her. These two acts are considered in Lancaster v. Flowers, 208 Pa. 199. The court said “The English Statute of 4 Anne, c. 16, sec. 27, enables one tenant in common to maintain an action of account against this cotenant as bailiff for receiving more of the income than his just share or proportion, and the English courts have held that the statute applies only where ‘one tenant in common receives the money from another person to which both parties are entitled by reason of their being tenants in common and their interests as such, and of which one receives and keeps more than his just share,’ Henderson, v. Eason, 79 Eng. Com. Law Rep. 701. The Act of June 24,1895, P. L. 237, contemplates that where the property is held by tenants in common that the parties in posses; sion shall have deducted from their distributive shares the rental value to which their cotenants may be entitled. These statutes supply the remedies not existing at common law, and cover the case where the cotenant out of possession, is entitled to rental values and contemplate that these remedies shall be applied to such cases of tenancy in common.” In Dorrance v. Ryan, 35 Pa. Superior Ct., 180, speaking of the Act of June 24, 1895, P. L. 237, the court say “The ground upon which a tenant in common is liable to be called upon by his cotenant to account in an action of assumpsit for a proportionate share of the money which he has actually received as rent from a stranger is entirely different from that which makes him liable for mere use and occupation. The Act of June 24, 1895, P. L. 237, gave to tenants in common who have been out of possession a right to recover from , those who have been in exclusive possession, their proportionate part of the rental value of real estate held in common. Prior to this statute one tenant in common could not maintain either trespass for mesne profits, as assumpsit or account render in order to compel a co-tenant to pay for mere occupation of the premises, without showing either an ouster or an express promise to account or to pay something. But prior to the Act of 1895 a tenant in common was allowed to recover in assumpsit his share of the profits received by the cotenant from a stranger.” See also Wells v. Becker, 24 Pa. Superior Ct. 174. The question of ouster does not arise in this case. Between tenants in common ouster must be proved by decisive acts of hostile character: Solomon v. Rogers, 13 Pa. Superior Ct. 70. Denial of title is not of itself ouster: Filbert v. Hoff, 42 Pa. 97. Ouster will not be presumed merely because cotenant takes the rents and profits: Watson v. Gregg, 10 Watts 289. It follows from these decisions that the defendant is liable to the plaintiff under the Statute of 4 Anne for the rents received by her from the Garren and Gies properties, but ' as to the brewery property she is liable for rental value under the Act of 1895. In the first case the courts regard her as a trustee for her cotenant of the rents collected, and hold her to a strict accountability. She cannot plead the statute of limitations and is liable for interest on the annual rents. In regard to the brewery property the master is of the opinion that she can be compelled to account for rental value for a period of six years only, that is from April 8, 1906, the action of ejectment having been begun April 8,1912. In regard to the Garren and Gies properties the case of McGowan v. Bailey, 179 Pa. 470, is directly in point. This was a dower case. The owner died in 1863, leaving a widow and children. No dower was set out. The real estate ultimately passed to defendants who, in 1884, opened a coal mine and by 1893 had taken out most of the coal. In that year the widow filed a bill for her one-third of the value of the coal with interest, as a tenant in common. The Supreme Court, in allowing the claim, said, “A tenant in common exercises his undoubted rights to take the common property, and he has no other means of obtaining his own just share than by taking at the same time the share of his companions.” Cotenant “had a right to mine and receive all the money for the coal including her one-third. It was not therefore an act hostile to or in denial of her right. As to her thirds they were merely trustees for her, and long before lapse of time raised a presumption of payment she made a demand for an accounting. It was held over and over again ever since Dillebaugh’s Est., 4 Watts 177, that ‘the statute of limitations in such cases is out of the- question.’ ” The court also decided that she was entitled to interest for the whole period the meantime being 1890, three years before the action was commenced. It is very plain from these decisions that Mrs. Seip has received these rents as trustee, that the statute of limitations cannot be pleaded and therefore she must account for them from April 8, 1894, with interest.</p> <p>In the opinion of the master the right to recover rental for the brewery property is upon a different basis. • It arises under the Act of 1895, giving a tenant out of possession the right to bring suit. From April 8, 1894, to June 24, 1895, Mrs. Seip was rightfully in possession of this property and could not be called upon to pay anything. But from June, 1895, she became answerable to her cótenant fór the. rental va-lne. The plaintiff, by her guardian, could have demanded at that time from the defendant a fair, annual rent, and in case of failure to agree could have began an action to protect her rights áhd recover the rent:' Nothing of this kind was done, and the. matter, was permitted to remain undetermined and ■uncontested until after the Easton Trust Company retired from the guardianship in 1912, when on April 8th, of that, year, Eassit, the then guardian, brought the action of .ejectment above mentioned. The question now to be "determined is. whether the plaintiff shall recover the rental value or mesne profits for the whole period from June' 24, 1895; oi*, being barred by the statute of limitations, only, from a time six years prior to the ejectment suit,; that is from April 8,1906. The statute of limitations of March 27,1713,1. Sm..L. 76, sec. 5, expressly exempts infants from its operation, and if no guardian had ever been.appointed for this plaintiff, it is •not at all likely that this question would have been raised. But. the fact-that there has always been, since plaintiff’s right first arose, a custodian with legal possession of her estate and authorized and empowered to protect her rights entirely-changes the case. Is a guardian privileged to slumber upon the rights of his ward, while executors, administrators and. trustees must be ■alert to prevent the bar of the statute, even though the beneficiaries of the estates they administer may be minors? There, is every reason why a minor ignorant of •the fact that he is the owner of property, or without capacity to take care of it orto proceed to protect his title, should have the benefit of the exemption of this 'act, but there is none whatever when his estate is. in the custody of a guardian. 1 This summary of the authorities is found, in 25 Cyc. 1261: “In the majority of juridictións, where the title, or right of action vests in a personal representative, guardian or trustee, who is under no legal disability, the statute of limitations begins to run, notwithstanding the minority of the ¡beneficiary, and where the former is barred the latter is likewise barred.” In Meeks v. Olpherts, 100 U. S. 564, the court say, page 569, “Whatever doubt may have existed, at one time on the subject, there remains none at the present day, that whenever the right of action of a trustee is barred by the statute of limitations, the right of the cestui que trust thus represented is also barred. This doctrine is clearly stated in Hill on Trustees, 267, 403, 504, and the authorities there cited fully sustain the text, both English and American.” Citing Smilie v. Biffle, 2 Pa. 52; Couch v. Couch, 49 Ky. 160; Rosson v. Anderson, 49 Ky. 423; Darnall v. Adams, 53 Ky. 273. In Smilie v. Biffle, 2 Pa. 52, the court held “The rule in a court of equity, that the statute of limitations does not bar a trust estate, holds only as between the cestui que trust and trustee, not between the cestui que trust on the one side, and a stranger on the other.” In Warfield v. Fox, 53 Pa. 382, the court say: “If it is a matter of public interest that titles to land should be quieted, it can be no hardship comparable to the mischief of permitting judicial decrees to be indefinitely liable to attack, or trusts unexecuted, and not in writing, to be asserted, that minors, femes covert and persons non compos mentís should be held to the same limitations as those applied to others. Ordinarily they have guardians and committees; if covert they have husbands, who may maintain their rights, whose duty and interest it is to assert them.” While the court in this last'case were construing the Act of April 22, 1865, P. L. 532, they recognize the general principle that where an estate is in the hands of guardians or committees this fact differentiates it from those not so protected.</p> <p>The statute of limitations may be pleaded to all mesne profits beyond six years; Huston v. Wickersham, 2 W. & S. 308. It should be borne in mind that Mrs. Seip is not a bailiff or trustee as to the brewery property, she collected no rents to hold as a trust fund. She is in fact, the “stranger’? whose rights were recognized and confirmed in Smilie v. Bifile, supra. The authorities above cited seem to be ample to sustain the conclusion that she is entitled to the benefit of the statute of limitations. In Sopp v. Winpenny, 68 Pa. 78, which was an action of trespass for mesne profits brought in-1866, the court permitted a recovery from the time the action in ejectment was begun in 1865. Following this precedent, the action in ejectment in the present case having been begun April 8, 1912, fixes the date from which to calculate the rental value as April 8, 1906.</p> <p>It is conceded that defendant is entitled to credit for all proper items of taxes, county, city and school, insurance and repairs paid by her. As to the Gies property, the items were readily agreed upon as they appear in Finding No. 16.</p> <p>In regard to the Garren property the item of repairs stated as “Towards improvements $500.00.” The facts are, briefly, that this was a contribution of 125 barrels of beer, worth at cost $500.00, which Mrs. Seip and Edward S. Veile in 1892, while they were operating the ' brewery, agreed to furnish to Jacob W. Garren, who had just leased the property for a term of years, as their contribution towards the cost of certain alterations and improvements to the property, which Garren had undertaken to make. Mrs. Seip agreed to this only after Theresa Veile, the life tenant, had promised to pay the $500.00, cost value of the beer. Edward S. Veile died two days after Garren took possession in 1893, and Theresa Veile died the following year without having paid for the beer donated to Garren. The master thinks that the objection is well taken as this is clearly a debt of Theresa Veile and should have been collected from her estate. The credits allowed for repairs, taxes, insurance and water tax appear in Finding No. 18. As has been found above there is a difference between the brewery and the other two properties in regard to rents. There is also a difference in the matter of liability to contribute towards the cost of maintenance, repairs and taxes by the tenant out of possession. It would be manifestly most inequitable to require such’ tenant to contribute anything whatever towards these items. The tenant in possession having the sole occupancy without rent, using and wearing out in the operation of the plant the fixtures and appliances and causing the rotting away of the floors and other portions of the buildings liable to decay, and generally bringing about a condition of disrepair and disintegration in the buildings themselves, is certainly not in position to ask contributions for up-keep from a co-tenant who is getting nothing whatever out of the property. In Crest v. Jack, 3 Watts 238, the court say “One joint tenant or tenant in common cannot erect buildings or make improvements on the common property without the consent of the rest.” They also say in Beatty v. Bordwell, 91 Pa. 438, “A tenant in common is liable to his cotenant for repairs that are absolutely necessary to houses and mills already erected and in being, which fall into decay.” To the same effect is Dech’s App., 57 Pa. 467. From April 8, 1906, to October 9, 1909, the statement shows expenditures for repairs totaling $706.96, of which $58.48 were paid in 1906, $523.18 in ' 1907, $93.07 in 1908, and $44.03 in 1909. A further analysis shows these payments were for</p> <p>Concreting material $80.65</p> <p>Drains 51.75</p> <p>Roof 22.28</p> <p>Repairs to floors and alterations 100.16</p> <p>Surveys 9.94</p> <p>- $264.78-</p> <p>Stable $219.93</p> <p>Unplaced (witness no recollection) 222.25</p> <p>- 442.18</p> <p>$706.96.</p> <p>.. The payment of over $500 in 1907 indicates that more than “absolutely necessary” repairs were made. Expenditures upon the “stable” have already been passed upon as new construction and not allowable. The items of which the witness, Mr. Cope, had no recollection, amounting to $222.25, mainly for brick and iron, were not sufficiently shown to have been used in absolutely necessary repairs on the estate brewery, and cannot be allowed. The other items, amounting to $264.78, are allowed, as they seem to be for necessary repairs.</p> <p>. It appears that prior to April 8, 1906, Mrs. Seip had expended a very large amount on repairs and improvements. The amount as appears in the statement presented from T896, to April 8, 1906, is $4,543.22. The original brew, house, a one-story brick structure, was taken down almost to the foundation and rebuilt as a two-story structure with addition for office. A new one-story building, called the wash house, 26 feet by 47 feet, was erected of brick, iron and concrete, with small addition known as pitch house. New floors of iron beams, ■hollow brick and concrete were put into the ice house, and generally this same material was used in making repairs and replacements in the most substantial manner wherever needed. Ab entirely new stable was built. Repairs and improvements of this character are clearly within the inhibition of the rule in Crest v. Jack, 3 Watts 238, and not the kind permitted in Beatty v. Bordwell, ,91 Pa. 438. The master therefore feels that in addition to the reasons given above, the rejection of the credits prior to April 8, 1906, is warranted by the authorities; and further being a counter claim against the rental value covering the same period which the master has previously found to be barred by the statute of limitations, it.must* also be barred.</p> <p>; In arriving at the rental value of the brewery property the master has taken into consideration the value pf the .property as it was in 1894, its capacity at that time and the average output, together with the testimony of A. H. Kress, who was called as an expert witness. He is a builder of large experience in Reading, Pennsylvania, who had also been in the distilling business for five years, had owned’and operated a brewery for three years, had been called upon as an expert to appraise three other breweries, one of them at Northampton, this county, and is a large owner of real estate in and near Reading. He was able and clearly compe: tent to estimate the value and capacity of this brewery, and with information as to its average output give such an opinion as to the value of the property in 1894 and its rental value as is of material assistance in' this-inquiry. Xavier Veile bought the half interest of his partner, Christian Tache, in this real estate in 1871, for $10,000. He subsequently, in 1878, built the ice house, a two and a half story brick building, at a cost of $13,-000. At the time of his death the brewery was producing more than 2,800 barrels of beer and had a capacity of more than 4,000. Cost of beer in 1894 was about $4.00 and the selling price from $5.50 to $8.00. The cost has increased since then, but there is still a profit if sold at $5.50. By 1900 the output was 5,900 barrels. In the opinion of Mr. Kress, a brewery of the capacity of 4,000 barrels was worth $30,000, and had a rental value of $3,000, repairs and taxes to be paid by the tenant. His valuation of the property was fully confirmed by the defendant, who, a few weeks after he testified, bought it at the figure named. The master is of the opinion that the finding of a rental value of $3,000 per annum is fully sustained by the evidence.</p> <p>The testimony in regard to the Garren and Gies properties shows that Mrs. Seip received from each tenant $600 per year in cash; that these tenants sold Yeile’s beer exclusively, although they were not restrained by their leases from handling othér local beer ; that they paid $7.20 per barrel up to 1898, and since then $7.70, while the same beer was sold to other saloon keepers, a block or two further up the street, for $6.50. This decrease of price was solely due to the fact of competition with other breweries, of which competition the lessees of the Garren and Gies properties did not or could not avail themselves. The master is satisfied that this increase in the price of beer to her tenants was an advantage derived solely from the fact of her ownership of the properties, that it was virtually an indirect rental, a profit out of properties of which she was the trustee for her cotenant, and that she should account for it as rent. The amount of this indirect rent as found, $300, added to the $600 actual cash received, is $900. Compare this with rents paid for saloon properties in this neighborhood. One just across the street from the Gies property, as well located, the building about the same size and as well suited for the business, rents for $900, and the American Hotel, a much larger building in the same block rents for $1,200.</p> <p>The county, city and school taxes on the brewery are assessed upon a valuation of the whole property comprised in the Veile brewery, consisting of that portion known as the Xavier Veile Estate, 80 feet by 194 feet, and the two adjacent properties on the north and south with their improvements, owned by Mrs. Seip. As Mrs. Seip is entitled to credit for taxes paid on the Xavier Veile Estate portion of the property from. April 8, 1906, some apportionment must be made. A method can be devised from the city assessments. Prior to 1905 the assessment was $20,000. From that date, about the time the improvements on Mrs. Seip’s individual property were added to the plant, the assessment was raised $15,000, representing these improvements. This gives a proportion of four-sevenths as the estate’s share and three for Mrs. Seip. The calculations will be made on this basis.</p> <p>In regard to defendant’s seventh request, the master cannot find that the defendant, relying upon the agreement with the mother of plaintiff, expended large sums of money on the brewery and Garren properties and in buying land adjoining tbe brewery and improving it, and cannot equitably be placed in tbe same position as sbe occupied before the agreement of May 7,1894. Was she not relying upon tbe will of Xavier Veile under wbicb Theresa Veile bad the right to sell all tbe real estate if needed for her maintenance and support; upon tbe decision of tbe Court of Common Pleas that this gave her an estate in fee simple; upon tbe conveyance by Theresa Veile of all this real estate to third parties and its reconveyance to her by her grantees; upon tbe will of Theresa Veile, giving tbe defendant a life estate; upon tbe lease of tbe brewery executed by Theresa Veile to tbe defendant in 1894 for a period of 35 years at a rental of $260 per year? There was also tbe will of Xavier Veile wbicb gave defendant a life estate in half of this property. It must be that all these contributed to tbe result. Besides tbe defendant gets tbe property at its value in 1894, and tbe fact that sbe gets it saves her from any loss by reason of her expenditures on tbe adjoining property. Such improvements as sbe made were essential to a modern brewery, and are just as valuable to tbe plant as when they were first put in. Sbe got possession of this brewery fully equipped to produce beer. It was certainly incumbent upon her to maintain it. The renewals and replacements sbe made, tbe new equipment and enlarged facilities sbe provided are all there, belong to her, and sbe has suffered no loss by reason of them. So far as these expenditures are concerned sbe is in as good a position as sbe was before tbe agreement of May 7, 1894. But aside from these considerations, bow can an agreement concerning tbe estate of a minor, made without tbe sanction of tbe court, by a person without any authority to act, whose action has been repudiated by tbe minor upon attaining her majority, be of any avail to this defendant? Sbe herself brought about this situation by making tbe agreement with tbe mother instead of with tbe guardian. Certainly tbe plaintiff should not suffer because of a condition of affairs to which she in no wise contributed.</p> <p>The opinion of the Supreme Court states the facts. See also Fassitt v. Seip, 240 Pa. 406.</p> <p>The court dismissed the exceptions. Plaintiff and defendant appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 370, Jan. T., 1914, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1907, No. 1612, on verdict for plaintiff, in case of Elderbrando Schifalacqua, a minor, by his next friend, Guelfo Perfétti, v. Atlantic City Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 479, Jan. T., 1914, by plaintiffs, from decree of C. P. No. 1, Philadelphia Co., March T., 1914, No. 1664, in equity, refusing an injunction, in case of Anna D. Hamilton, Emma E. Donohugh and Wilber F. Hamilton, executors and trustees under the will of William J. Donohugh, deceased, v. George C. J. Fleck, Edward T. Comfort, and Edward T. Comfort, trustee in bankruptcy of the Paxson & Comfort Company.</p> <p>Bill in equity for an injunction. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing refused the injunction. Plaintiffs appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>