Volume 250 — Pennsylvania State Reports

<p>Municipalities — Eminent domain — Damages—Compensation^ for delay — Land taleen for parle — Act of June 15,1871, P. L. 891 — Evidence — Improper valuations hy witness — New trial.</p> <p>1. When land is taken by a municipality in the exercise of the power of eminent domain, the owner is deprived of the use of his property and should be compensated at once for the injury done; if payment be delayed the owner has the prima facie right to claim damages as compensation for delay. If the municipality would excuse itself for delaying payment, the burden is upon it to show that the owner has been extortionate in his demands and has named a sum exorbitant and unreasonable; failing in this the right of the owner to damages for delay in payment in such amount as the jury may assess is unquestionable.</p> <p>2. On the trial of an appeal from an award of viewers in proceedings to assess damages for land condemned by a municipality the trial judge committed reversible error in charging the jury that the plaintiff was not entitled to damages for delay in payment if there was an unreasonable, unwarrantable and stubborn claim by him for excessive damages, in the absence of evidence that the parties had made any effort to agree on the damages or that plaintiff had made any demand whatever upon defendant therefor.</p> <p>3. The Act of June 15, 1871, P. L. 391, providing that “It shall not be lawful to assess, apportion or charge the whole or any portion of the damage done to or value of the land so appropriated to, among, or against other property adjoining or in the vicinity” thereof, is applicable in proceedings to assess damages for land appropriated for park purposes, although the statutory rule has been modified by subsequent legislation as applied to many kinds of street and other public improvements.</p> <p>4. In proceedings to assess damages for land appropriated for park purposes the measure of damages is the difference between the market value of the entire tract before the taking and the market value of the remainder of the tract after the taking.</p> <p>5. In fixing the amount of damages for land taken for park purposes witnesses must confine themselves to such market values before and after the taking, without making deductions for benefits, and where a witness appears to have made deductions for benefits from his estimate of the value after the taking, a new trial should be granted.</p>

<p>Appeal, No. 484, Jan. T., 1914, by Fidelity Trust Company, guardian of the estate of Mary C. Bringhurst, a person weak in mind, from decree of C. P. No. 2, Philadelphia Co., Dec. T., 1912, No. 1085, refusing leave to take against the will of Eobert E. Bringhurst, deceased, In re Mary C. Bringhurst, a person weak in mind.</p> <p>Petition by the guardian of a person weak in mind for leave to take against the will of its ward’s deceased husband.</p> <p>Exceptions to the report of Chester N. Farr, Esq., Eeferee. Before Sulzberger, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. The Fidelity Trust Company, guardian, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Trials — Negligence—Physical examination — Internal injuries— Surprise — Continuance—Judicial discretion.</p> <p>1. While the court cannot order a plaintiff in a negligence case to submit to a physical examination against his will, it can, and when the ends of justice so require, should refuse to permit the case to proceed until the plaintiff undergoes an examination. This matter, however, is largely within the discretion of the trial court, and its action will not be reversed except in case of clear abuse.</p> <p>2. In such case the action of a trial court in refusing to grant a defendant’s request for an examination of plaintiff by a physician selected either by the court or by the defendant, involves no abuse of discretion where it appeared that plaintiff had been examined by two physicians representing defendant company prior to the trial, and there was no evidence that she or her physicians in any way deceived or deliberately misled the examining doctor.</p> <p>3. Where it appeared on the trial that plaintiff was injured internally, the court committed no abuse of discretion in refusing to withdraw a juror after defendant had pleaded “surprise,” on the ground that there was no allegation in the statement of claim that plaintiff was internally injured, when no bill of particulars had been asked for, and the averments of injuries in the statement were broad enough to cover those proved at the trial.</p>

<p>Sunday — Sunday newspapers — Publication of legal notices — Municipalities — Boroughs—Ordinances—Improper publication — Invalidity of ordinances.</p> <p>1. Publication in a Sunday newspaper of a notice or advertisement required by law does not constitute legal notice.</p> <p>2. The provisions of Section 3 of the Act of April 3, 1851, P. L. 320, relating to the publication of borough ordinances are mandatory, and, until they have been complied with, an ordinance is not effective, and is as wholly inoperative as if the municipal legislative body bad not acted in the matter. An ordinance published exclusively in a Sunday paper is of no effect.</p>

<p>Negligence — Railroads—Trials—Evidence—Conflicting evidence —Instructions on the weight of the evidence.</p> <p>1. Exceptional cases arise where it is the duty of the trial judge to express his opinion of the facts and guide the minds of the jury to a correct view of the evidence, and when he does so without misleading or controlling the jury in the disposition of the facts, there is no ground for reversal.</p> <p>2. On the third trial of an action against a railroad company to recover damages for personal injuries sustained by plaintiff while alighting from a train, where plaintiff and another witness testified- that the plaintiff was in the act of alighting when the train suddenly started without signal, and plaintiff was thereby thrown to the ground and injured; but eleven witnesses, eight of whom were disinterested, testified that the train was moving when the plaintiff passed from the car to the platform, and plaintiff’s testimony was further contradicted by her own testimony on a previous trial, the court did not err in calling the jury’s attention to the fact that plaintiff's evidence was overwhelmingly contradicted by that of the defendant, and to the further fact that plaintiff was an interested witness.</p>

<p>Negligence — Master and servant — Mines and mining — Act of June 2, 1891, P. L. 176, Article 12, Buie 44 — Contributory negligence — Case for jury.</p> <p>1. When a mine owner has knowledge of conditions which are hazardous to employees, or of the failure of the mine foreman to properly perform his duties in safeguarding the lives of others, it is his duty to remedy the dangerous condition, and failure on his part to do so will give rise to liability which he cannot avoid by the plea that the danger arose through the act of the mine foreman for whose negligence he is not responsible.</p> <p>2. The provisions of Rule 44 of Article 12 of the Act of June 2, 1891, P. L. 176, providing that “an efficient alarm shall be provided and attached” to the front end of every train of cars operated by a locomotive in every mine or part of a mine, apply not merely to the main roadway of the mine, but extend to every siding.</p> <p>• 3. In an action against a mining company by an employee to recover damages for personal injuries, it appeared that at the time of the accident plaintiff was working on a coal car on a siding in defendant’s mine and was caught between the bottom rock and the car when it was struck by a train pushed into the siding. Plaintiff admitted that he heard the noise of an approaching train but stated that there was a cross-cut between the heading in which' he was working and the adjoining one, making it impossible to know where the approaching train was going, and further testified that he heard no bell and saw no light to indicate that a train was coming. It further appeared that on former occasions a man was sent ahead of the train to ascertain whether the ear was loaded and that by this means plaintiff' ordinarily knew when a train approached, but that no such notice was given at the time of the accident. Held, that the ease was for the jury.</p> <p>4. In such case the doctrine of assumption of risk is not applicable, the negligence charged being a breach of a statutory duty.</p> <p>Charge of court — Failure to ash for specific instructions.</p> <p>5. A party may not sit silent and take his chances of a verdict and afterwards if it is adverse complain of a matter which could have been immediately corrected at the time of the trial.</p> <p>6. Failure of the trial judge to instruct the jury on questions of law affecting the case is not ground for reversal where no instructions have been asked for. .</p>

<p>Contracts — Building contracts — Default—Damages—Judgment for defendant.</p> <p>1. Where in an action against a subcontractor for failing to complete certain stone work, it appeared that when defendant abandoned work a balance was due him for work already performed, and where there was evidence that plaintiff eould have completed the work for at least the amount due defendant, had he prosecuted the same without negligence and in good faith, the trial judge, who tried the case without a jury, did not commit error in entering judgment for the defendant.</p> <p>Practice, O. P. — Trials without a jury — Death of trial judge —Proceedings before successor.</p> <p>2. Where a case has been submitted to a judge without a jury under the Act of April 22, 1874, P. L. 109, and before the case .was decided the trial judge dies and the parties proceed before his successor without objection, it is too late after judgment, to insist that the agreement to waive a jury trial fell with the death of the judge before whom the case was commenced.</p>

Appeals, Nos. 183 and 184, Oct. T., 1914, by defendant, from judgment of C. P. Allegheny Co., July T., 1912, No. 2948, on verdict for plaintiff, in case of Della Lonabaugh, a minor by her next friend and mother Alice Lonabaugh, and Alice Lonabaugh in her own right, v, Pittsburgh Railways Company. Trespass to recover damages for personal injuries. Before Shafer, J. The opinion of the Supreme Court states the facts.

<p>Corporations — Receiverships— Compensation of receiver — Improper payments — Wage claims — Act of May 12, 1891, P. L. 5k, Section 1 — Surcharge.</p> <p>1. A receiver is an officer of the court; and, by accepting such an appointment, he accepts the responsibility of his office, which involves the exercise of his best business experience and influence for the benefit of the company, in the same manner as if he were the sole owner of the business. For these services the law recognizes the justice of compensation measured by the circumstances of the ease. Beyond such compensation the receiver may not profit by his position to the detriment of the creditors or owners of the business.</p> <p>2. The Act of May 12, 1891, P. L. 54, Section 1, which provides that money due for labor and services for an amount not in excess of $200 and for a period not exceeding six months preceding the sale or transfer of the real or personal property of any person or company by execution or otherwise on account of the death or insolvency of such employer or employers, shall be first paid out of the proceeds of the sale of such real and personal property, does not authorize the payment of wages as a preferred claim unless a sale of the property has taken place.</p> <p>3. Where a receiver has been authorized to conduct the business of a corporation, but before the sale of the property the corporation has been adjudged a bankrupt and its property has passed into the hands of a trustee in bankruptcy, the receiver cannot properly pay wage claims incurred by the company before the receivership.</p> <p>4. The receiver of a brewing company had, prior to his appointment, been engaged in the wholesale liquor business and had handled a large part of the output of the brewing company. He had received a monthly salary of $600 from the brewing company in consideration of his having rejected an offer to sell out his wholesale liquor business and having continued to handle the output of the brewing company. After his appointment as receiver, he was authorized to carry on the business of the brewing company and continued the arrangement under which he received $600 per ■month. The brewing company was adjudged a bankrupt, and the receiver filed his account, wherein he claimed credit for $21,000 for payments on account of the monthly salary. The auditor, to whom the account was referred, allowed the receiver $15,000 as .compensation for his services and surcharged him with the amount of the monthly payments; with an item of $1,008 paid out of the funds of the company for a wholesale liquor license fee paid for carrying' on the receiver’s individual business and with an item of $109.33 for wages paid the receiver’s brother for services rendered prior to the receivership. Held, the court properly dismissed exceptions to the auditor’s report.</p> <p>Practice, Supreme Court — Appeals—Matters not referred to in statement of question involved.</p> <p>5. On appeal to the Supreme Court matters not referred to in the statement of the question involved are not before the court and will not be considered.</p>

<p>Contracts — Deed-polls — Covenants binding on grantee — 4m-biguous expressions — Construction by the parties — Equity—Specific performance.</p> <p>1. The general rule is that a deed-poll when accepted by the grantee becomes the mutual act of the parties the same as if signed by both. By accepting a deed-poll with all its terms and conditions and entering into possession, the grantee takes the property subject to the burdens imposed upon it by the grant and is bound to perform the conditions therein stipulated although he has not signed the deed.</p> <p>2. If the language of a covenant be ambiguous, the construction placed thereon by the parties is the best evidence of their intention even though it might not be the construction which from inspection of the writing alone would be accepted.</p> <p>3. A railroad company acquired a strip of farm land for the purpose of improving its road by a deed-poll which provided that “in case the wells and springs situate upon the premises of the first parties shall become useless or impaired by reason of the construction of any railroad on the land hereby conveyed, then...... the said party of the second part......agrees with the parties of the first part......that the said party of the second part...... shall and will immediately enter upon the remaining property of the first parties and at a point or points designated by them, or either of them, drill new wells sufficient in number and size to furnish a sufficient quantity and a good quality of water to meet the needs and demands of the houses and barns of the parties of the first part.” By reason of an excavation on the land granted the railroad company, the well and the spring which supplied the grantors’ dwelling house with water were rendered useless. Another well and spring distant from the house supplied a sufficient quantity of water for the needs of the grantors’ houses and barn, but the quality of the water rendered it unfit for household use. The defendant company made two efforts to dig another well near the grantors’ house to supply it with water but failed. In a suit in equity to compel the performance of the covenants of the deed, defendant contended that in view of the fact that at the time of the covenant there was another well at a remote part of the farm producing water of the necessary quantity and quality, plaintiff could have no remedy on the covenant so long as that supply was available. Held, the lower court did not err in granting the relief prayed for.</p>

<p>Appeal, No. 36, Jan. T., 1915, by plaintiff, from order of C. P. No. .1, Philadelphia Co., Dec. T., 1914, No. 582, refusing to enter judgment for plaintiff for want of a sufficient affidavit of defense, in case of A. Lincoln Acker, Sheriff of Philadelphia County, to use of Maria Louisa Gray v. William Henry Snyder.</p> <p>Assumpsit for the purchase-price of a certain piece of real estate sold at a sheriff’s sale to the defendant.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Paterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused to enter judgment for plaintiff for want of sufficient affidavit of defense. Plaintiff ap-' pealed.</p> <p>Error assigned was the order of the court.</p>

<p>Real property — Ejectment—Evidence—Treasurers’ deeds — Acknowledgment in open court — Prothonotaries’ records — Estoppel-Privity of estate.</p> <p>1. While it is well settled that deeds executed by a county treasurer for land sold for taxes must be acknowledged in open court, the fact of such acknowledgment may be proved not merely by the minutes of the general proceedings in a court, but by any other books in the prothonotary’s office which supplement the court minutes and which are in pari materia therewith.</p> <p>2. Where in an action of ejectment certain deeds executed by the county treasurer for land sold for taxes formed links in plaintiffs’ chain of title, and where it appeared from the minutes of the prothonotary that on the date of said deeds the treasurer of the county acknowledged certain deeds in open court, but the different tracts of land sold were not specifically named in the minutes, another book kept by the prothonotary marked “Treasurers’ Deeds” and containing a complete record of the acknowledgment in open court of each particular tráct sold by the treasurer, including the land in controversy, was properly admitted in evidence and the judge to whom the ease was submitted for trial without a jury did not err in drawing the inference from the records that the deeds had been properly acknowledged by the treasurer in open court.</p> <p>3. Where the owners of a tract of land have conveyed a certain number of acres thereof by a general warranty deed to grantees, whose title is subsequently determined to be invalid in an action of ejectment, and thereafter such grantees reconvey the land to their grantors, such grantors will be estopped by the first deed from asserting that they did not have good title to the land described therein and by the second deed from asserting that their rights are not affected by judgment entered in the action of ejectment.</p> <p>4. The owners of certain land embraced in land office warrant No. 4635 conveyed seventy acres purporting to be located on the eastern line of such warrant to grantees. In a subsequent action of ejectment such land was determined to belong not to warrant No. 4635 but to warrant No. 4737, which adjoined and thereafter the grantees, whose title had been declared invalid in the ejectment suit, delivered a deed to their grantors purporting to reconvey such land to them. In an action of ejectment brought by the owners of warrant No. 4737 for the land so reconveyed, the trial judge to whom the ease was submitted for determination without a jury held that the judgment in ejectment was conclusive against defendants and entered judgment for plaintiffs. Held, no error.</p>

Appeal, No. 114, Jan. T., 1915, by Ross Reynolds Smith, from decree of O. C. Philadelphia Co., July T., 1914, No. 99, dismissing petition for issues devisavit vel non in estate of Francis W. Smith, deceased. Appeal from decree of Register of Wills, refusing an issue devisavit vel non.

<p>Decedents’ estates — Children of illicit union — Marriage—Burden of proof — Insufficient eviclence.</p> <p>1. Where the relation between a man and woman was illicit at its commencement, the presumption is that it so continued and the burden is upon those who assert that a marriage subsequently took place to establish the fact of such marriage.</p> <p>2. Where the children of intestate decedent who were the offspring of a union illicit at its commencement, petitioned for a citation to compel the administratrix of such decedent to file an account, the petition was properly refused in the absence of evidence that petitioner’s mother was ever married to decedent, or that decedent had ever publicly recognized her as wife, or had ever cohabited with her in a common dwelling.</p>

<p>Appeal, No. 361, Jan. T., 1914, by plaintiffs, from judgment of C. P. Northumberland Co., Dec. T., 1911, No. 157, for defendants, in case of The Borough of Shamokin and William H. R. Smink, chief burgess, v. Hiram P. Helt, Annie W. Reese (nee Helt), Magdalena Henninger (nee Helt), Ella B. Schultz (nee Helt), Sylvester I. Helt, children and heirs at law of Louisa Lauer (nee Helt), deceased.</p> <p>Framed issue to determine title to a plot of land in Shamokin Borough.</p> <p>Moser, J., filed the following opinion snr plaintiff’s motion for a new trial:</p> <p>In this case the defendants presented a petition to the court setting forth that they were in possession and were the owners in fee simple of a triangular piece of ground situate in the Borough of Shamokin and lying immediately east and adjacent to what is designated and marked block number 46 on the plot or plan of the said borough. That the Borough of Shamokin claimed that William L. Helfenstein, proprietary owner, laid out and dedicated to the public use a certain street of the width of 80 feet, upon, over and covering the said lot or piece of ground owned and in possession of defendants and that by reason thereof the Borough of Shamokin acquired the title and right of possession to said premises for a public street or highway, and praying the court to grant a rule on said Borough of Shamokin to show cause why. an issue should not be framed between the parties to settle and determine their respective right and title to the said lot or piece of ground in accordance with the provisions of the Act of June 10,1893, P. L. 415. The cause came on to be heard and the court ordered and decreed that a trial by jury be had upon the matters therein stated and an issue was awarded and framed accordingly. It was admitted that the said town of Shamokin was laid out principally on the Samuel Clark tract and was agreed between the parties that the title to the portion of the said Samuel Clark tract on which the said Shamokin town plot was laid out, was in William L. Helfenstein in the year 1853. During that year Mr. Helfenstein published afnd circulated a book or pamphlet in the nature of a prospectus to advertise and promote the sale of town lots. With this pamphlet he also published and circulated a plot or plan showing the lots and block, streets and alleys and general lay out of the said town of Shamokin, which has been known in this case as the Helfenstein map. By deed dated September 7,1853, William L. Helfenstein sold and conveyed a large number of lots in accordance with the said map or plan as numbered and designated thereon. On January 3, 1865, after the incorporation of Shamokin Borough, within the territorial limits of which the premises here in question were included, the borough council passed an ordinance providing, that from and after the passage thereof all streets, lanes and alleys opened or laid out or drawn or marked on the plans or plots' of the said Borough of Shamokin or on the plans or plot of those who had made and laid out the additions to the original plan or plot of the said borough within the limits of the boundaries of the corporation are declared to be public streets, lanes and alleys. On January 30, 1886, at the suit of Paul and Louisa Helt, a special injunction was awarded restraining the Borough of Shamokin from opening for public use a street on the east side of said block 46, being the premises here in dispute, and on April 11, 1887, the cause was continued by consent, not to be put on the list again unless specially ordered, and nothing further was ever done in the matter. It has not been shown that a street or public highway was ever opened upon or over the premises involved, or that the same was ever used as a public highway.</p> <p>By deed dated March 11,1863, William L. Helfenstein conveyed all his interest in the Samuel Clark survey to Charles P. Helfenstein and subsequently the said Charles P. Helfenstein and his wife, by deed dated the 23d day of September, 1864, granted and conveyed unto Samuel E. Martin the triangle immediately east of block marked 46 including the premises here in dispute. The said Samuel E. Martin and his wife, Wilhelmina, by deeds dated the 15th day of June, 1875, and the 11th day of January, 1883, sold and conveyed the said triangular piece of ground lying immediately east of block 46 and south of Carbon Run Creek in the said Borough of Shamokin to Louisa Helt, the second deed including the property first puchased as well as the additional ground secured by the second purchase.</p> <p>The defendants in this action, being the children and heirs of said Lonisa Helt, are claiming the said triangular piece of ground as their own private property by virtue of the above recited deed and the evidence shows that they, their ancestors and predecessors in title, have been in possession thereof and have maintained improvements thereon continually for a period of more than forty years. The plaintiff’s contention is that the said William L. Helfenstein dedicated the major portion of the said premises as a street or public highway; that a strip, of the width of 80 feet, immediately east of the said block marked 46 is a portion of the street known as Fourth street in Shamokin Borough. The plaintiff insists that it was the intention of Helfenstein to dedicate the said premises for public use and that he so indicated by the map or plan he published and used. That the title to the said premises passed out of the said William L. Helfenstein by virtue of the dedication aforesaid, nor was the same affected in any way by the deeds from the said William L. Helfenstein through Charles P. Helfenstein and Samuel E. Martin to Louisa Helt and therefore the defendants have virtually no title to the said premises and certainly no right to interfere with the public use thereof by the borough. There is nothing on the map to indicate that it was intended that the piece of ground in question should be a public highway except that the said triangle was left vacant or is not enclosed in any lines. Much of the triangle, however, extends east of the 80 foot street limit so that if it is to be considered a street from the mere fact that it is vacant or not inclosed it might as well be said that all of the ground in that vicinity east of block 46 and south of Carbon Run Creek was intended for street or public highway. So far as the lines of the map indicate it might just as well be said that the ground or premises in dispute are a part of Chestnut street as that they are a part of Fourth street. To determine with certainty the intention of the publisher or the proprietary owner from what is shown on the map by the lines in the vicinity of this disputed ground is no easy task. In the first place Fourth street does not extend northward beyond Pine street or at least is not marked as such but the extension thereof is a 25 foot alley running northward from Pine street to Chestnut street, farther than which it could not be extended in a straight line without running into block 48. Third street is moved westward at Chestnut street and continues north immediately along the western boundary line of the creek. The defendants contend that it is preposterous to say that the said proprietary owner intended that Fourth street, which is 80 feet wide, should run along the eastern line of this small stream since Third street runs immediately along the western line thereof. Again, if this should have been the intention at the time the town was plotted the question arises, whether or not it was further intended that Fourth street should start at Chestnut and run over this property south of Carbon Run Creek, since the opening of the street according to such a plan would necessitate the erection of quite an expensive bridge. The defendants’ contention is that the drawing plainly discloses the fact that the vacant space running along the eastern side of the stream and north of Chestnut street was intended as creek bank and not as a street or it wrould be so marked. The Shipman map introduced in evidence, as well as other testimony, shows that considerable of the territory north of Carbon Run and south of Arch street was, until comparatively recent years, a veritable swamp, generally covered with water. In view of all these circumstances we submitted the question to the jury under what we thought proper instructions and they rendered a verdict in favor of the defendants</p> <p>The plaintiff complains of this and insists that the court erred in not directing a verdict for the plaintiff, contending that there was a dedication of the premises in question to public use by William L. Helfenstein when he published the aforesaid map or plan which became irrevocable when he adopted the same and sold lots in accordance therewith. In Tesson v. Porter Co., 238 Pa. 504, the Supreme Court of Pennsylvania, through Mr. Justice Brown say: “If anything is to be regarded as settled, it is that, when one who is the owner of a tract of land in a municipality cuts it up into' lots and sells them as laid out on a plan which he has adopted, showing streets and alleys thereon, there is not only an implied covenant by him to the owner of each lot that the streets and alleys, as they appear upon his plan, shall be forever opened to the use of the public, but a dedication by him of the same as highways to the use of the public forever, and the municipality itself cannot extinguish the easement which each lot owner thus acquired by private contract with the owner of the plotted ground: Transue v. Sell, 105 Pa. 604; Quicksall v. Philadelphia, 177 Pa. 301; Garvey v. Harbison-Walker Refractories Company, 213 Pa. 177; O’Donnell v. Pittsburgh, 234 Pa. 401.” In Osterheldt v. Philadelphia, 195 Pa. 355, it was held: “A deed of land, in accordance with a plan of lots and streets, made by the owner of the land, has the effect to dedicate to public use the strips of land designated as streets, and gives the right to use the streets not only to purchasers of lots on the plan, but to all other persons who might desire to use the streets; and the dedication is irrevocable by either the grantor or those claiming title under him. The deed operates as a relinquishment of all claims for damages for the use of the land, when the street is actually opened. It is only in cases w;here the Act of May 9,1889, P. L. 173, applies, that damages may be recovered. And in Higgins v. Sharon Borough, 5 Pa. Superior Ct. 92, at p. 100, the court say: “But an owner who makes a plot on which spaces are left indicating the dedication of roads or streets not previously projected by the public authorities, and sells lots with reference to the plot, cannot recall his dedication, for he leaves the streets to be opened by the proper local authorities at such time as the public interest may require, and of this they are the judges.” There is no doubt but what these principles are uncontrovertible as legal propositions. Plaintiff’s counsel most earnestly insists that they controlled the situation presented and were decisive in determining the matters here in controversy in favor of the plaintiff.</p> <p>If William L. Helfenstein had, in any way, clearly indicated on the map he published, either by lines drawn or names or figures, that he intended to appropriate a strip of ground running north from Chestnut street over the premises here in dispute as a public highway he and his successors in title would certainly be bound thereby; but .the great difficulty is to determine with certainty just whether he did dedicate or intend to dedicate the same to public use. There is no question about the streets, lanes or alleys, which are marked and designated on the map, but this property is not marked and no street is designated thereon by lines or otherwise so that it is very questionable whether or not the then owner ever intended that Fourth street should run across and over the locus in quo. In Verona Borough v. Allegheny Valley R. R., 152 Pa. 368, it was held: “Where the dedication of a street is sought to be established either by the recording of a plan or by the actual use of the street by the public or by such acceptance by the public as would be binding upon the owner by estoppel, the evidence must be clear.” In the present case it cannot be said that there is clear evidence of a dedication. The manner in which Fourth street is laid out and designated on the map would rather incline our conclusions to the contrary. We must be persuaded from what appears upon the drawing, that the publisher of the map intended the portion of the ground in dispute as street, and the plaintiff contends as Fourth street, but when we consider the broken and indefinite way in which Fourth street is designated on the map, not being named at all north of Pine street, we are far from being convinced by clear evidence, that the plaintiff’s contention is sustained. Dedication to the public use must rest on the intention or clear assent of the owner, and must be under such circumstances as to indicate an abandonment to the use of the community. Scott v. Donora Southern R. R. Co., 222 Pa. 634; Cotter v. Philadelphia, 194 Pa. 496. The burden in this case is upon the plaintiff to show, not only that William L. Helfenstein dedicated this land to public use but that the street had been opened in accordance with the dedication and accepted by the public as a highway; that the very land over which it attempts to exercise dominion was within the lines of the highway as opened and accepted: Washington Female Seminary v. Washington Borough, 18 Pa. Superior Ct. 555, at p. 572. Counsel for the plaintiff complains because we instructed the jury to be governed by the Helfenstein map entirely in considering the question of dedication, and contends that the Cleaver and Fowler maps should have been considered as well. So far as the locus in quo is concerned these maps are identical and our thought was to keep the minds of the jurors away from the more recently made maps, plans and blue prints introduced in evidence. We are confident that no injury resulted from these instructions. Nor do we think injury was done when we told the jury, in substance, that the publisher of the map might have intended to dedicate ground for a street or for public use north of Carbon Run and still there might be some question as to his intentions on the south side of the said stream. A dedicated street becomes a public highway only to the extent to which it is actually opened and used: Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425; Commonwealth v. Royce, 152 Pa. 88. A deed calling for the line of a street in one block is no dedication of the same street in another block. Easton Borough v. Rinek, 116 Pa. 1. The opening of a highway throughout part of its length does not affect the status of the unopened portion. Washington Female Seminary v. Washington Borough, 18 Pa. Superior Ct. 555. Under all the circumstances thus related we are quite confident that the plaintiff in this action has no good reason to complain because we submitted the question as to whether or not there was a dedication to the jury.</p> <p>If there was a dedication of the locus in'quo for public use it was by virtue of the actions of the owner in 1853. There is nothing in the case that would justify the imputation of a rededication, and no effort was made to open the street until 1886, when plaintiff was restrained by a special injunction and at which time all efforts to open the street or determine the legal rights of the parties were discontinued and abandoned. ■ We are of the opinion that the street cannot be now opened without compensation to the defendants for any damages sustained. In Quicksall v. Philadelphia, 177 Pa. 301, (p. 304) the court held: “The dedication of the plaintiffs’ grantors in 1848 operated as a relinquishment of all claims for damages for the use of the land within the lines of the streets for street purposes, and no claim for damages can be sustained unless by reason of the Act of May 9, 1889, P. L. 173. The language of the act is: ‘That any street, lane or alley laid out by any person or persons in any village or town plot or plan of lots, on lands owned by such person or persons, in case the same has not been opened, to, or used by, the public for twenty-one years next after the laying out of the same, shall be and have no force and effect and shall not be opened, without the consent of the owner or owners of the land on which the same has been, or shall be, laid out.’ The purpose of the act is to relieve land upon which streets have been laid out by the owner, but not opened or used for twenty-one years, from the servitude imposed. To what extent it may affect the rights of those who by purchase of lots within the tract have acquired the right of the use of all the streets marked on the plan we need not now inquire. We have before us only the question of the right of the municipality,to open the streets without compensation by reason of the dedication in 1848. As against this right the act establishes a limitation of time where none before existed. The streets were laid out forty-four years before the commencement of these proceedings. They have not been opened to, or used by, the public. During the whole of this time the beds of the streets have been in the possession of the abutting owners and used by them for the purpose of quarrying stone. No possession or use was claimed by others. The case, we think, comes within the meaning of the Act of 1889 and it is now too late for the city to assert the right founded upon the dedication in 1848.” “While title by adverse possession cannot be acquired in land which has been dedicated to the use of the public for the purpose of a street, the rule will not obtain unless the dedication has been accepted. Where an owner of land lays the land out in a plan of lots and records the plan, but the streets indicated are never accepted by, open to or used by the public, and the owner and his successors in title for over fifty years keep the land fenced and cultivated, a railroad company, in condemning a portion of the land, cannot claim that it is not liable for the depreciation in value of the whole of the tract because of a division of a tract by a street or streets. In such a case it is immaterial if the owner of the land within twenty-one years prior to the condemnation proceedings described the land in partition proceedings and in an affidavit filed under the Act of May 31, 1901, P. L. 352, by reference to the recorded plan of lots.” Scott v. Donora Southern Railroad Co., 222 Pa. 634. So in Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425, it was held that the Act of May 9,1889, P. L. 173, relieves land upon which streets have been laid out by the owner, but not opened or used for twenty-one years, from the servitude imposed. If the municipality proceeds to open the street after that time the owner is entitled to damages. In Woodward v. Pittsburgh, 194 Pa. 193, at p. 199, it was held: “The right of Mrs. Woodward to recover damages for the taking of one-half of Arabella street from her as the owner, to the center thereof, should have been submitted to the jury, with instructions that if Watson had sold her grantor the strip of land facing on the street according to a plan upon which he had laid out lots and streets, among them, the street in controversy, and that more than twenty-one years had elapsed from the time of her husband’s purchase until the City of Pittsburgh had actually opened the street, she would be entitled to damages for the land so taken, if any had been sustained.” And “The fact that a street which has been dedicated to public use by the owner of the land was adopted by resolution by the borough authorities, and placed on a borough plan, is. not in itself sufficient to constitute an opening of the street under the dedication within the meaning of the Act of May 9,1889, P. L. 173.” Chester v. Thurlow Land Company, 13 Pa. D. R. 285. And the right of the owner is not defeated by the fact that, in a conveyance prior to the expiration of twenty-one years, reference was made to the recorded plan and to the streets thereon, as such reference does not give rise to an implication of a new dedication of the land for streets: Woodward v. City of Pittsburgh, 194 Pa. 193.</p> <p>In the instant case, if there was any dedication of the premises involved to the public use, it was brought about by the publication of the map and the sale and conveyance of lots in accordance therewith by William L. Helfenstein, and took place in 1853. The defendants and their predecessors in- title, have been in possession of the property, according to the testimony, since 1862 or 1863, and have paid taxes to the plaintiff borough and other authorities authorized to levy the same for a number of years. No street was ever opened or used by the public over and across the said premises from the time of the said alleged dedication to the present day. • In 1886, thirty-three years after the plan of the town of Shamokin was adopted, an evidently indifferent attempt was made to open Fourth street over the said locus in quo, but' when the plaintiff was restrained by a preliminary injunction the object was abandoned and no further attempt was ever made. Applying the legal principles laid down in the authorities above cited to these facts we are inevitably led to the conclusion that a street or public highway could not be opened over the premises in dispute after the passage of the Act of May 9,1889, without the consent of the owner or owners of the said land. The defendants’ petition for the rule in this action was filed in October, 1911, more than fifty-eight years after the alleged dedication and more than twenty-four years after the above mentioned attempt to open Fourth street and assert title to the premises by the plaintiff.</p> <p>Under all the circumstances in this case and in view of what has been said in the foregoing discussion we are of the opinion that the plaintiff has not shown any good reason why a new trial should be granted. The fact that a portion of Fourth street lying north of Arch street and some considerable distance away from the locus in quo was vacated by action of the borough council by virtue of an agreement entered into between the council and the owners of the land abutting on the portion of the street vacated does not in any way affect the questions here involved. The portion of the said alleged street thus vacated was more than three blocks away from the premises involved and the action pertaining thereto is too remote to effect the status of the location here in question. Again, this vacation was effected by mutual agreement and being an amicable arrangement, no property or legal rights of the parties were tested or determined.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were certain portions of the charge of the court and answers to points.</p>

<p>Appeal, No. 388, Jan. T., 1914, by defendant, from order of C. P. Fayette Co., Sept. T., 1912, No. 143, making absolute rule to show cause why judgment should not be entered on bond in case of Humbert Long, executor of the last will apd testament of Samuel N. Long, deceased, now for the use of Minnie C. Long, v. Catharine Long Morrow.</p> <p>Rule to show cause why judgment should not be entered on bond more than twenty years old.</p> <p>The facts appear in the following opinion by Van Swearingen, P. J.:</p> <p>On January 23, 1889, Catharine Long Morrow executed and delivered to her father, Samuel N. Long, a bond for the sum of $2,500, containing a warrant of attorney for confession of judgment. Samuel N. Long died on November 29, 1909. The said Catharine Long Morrow had paid to her father, in his lifetime, on account of said bond, as shown by endorsements thereon, the sum of $499. On May 20, 1912, Humbert Long, executor of the last will and testament of the said.Samuel N. Long,' by direction of said last will and testament, assigned said bond to Minnie C. Long. On June 29,1912, as required by a rule of this court, the warrant of attorney to confess judgment contained in said bond being more than twenty years old, the said Minnie C. Long, by her counsel, took a rule on the said Catharine Long Morrow to show cause why judgment should not be entered on said bond for the amount thereof remaining unpaid, to-wit: the sum of #2,001, together with interest thereon from November 29,1910, a date one year subsequent to the death of the said Samuel N. Long.</p> <p>To this rule an answer was filed, setting forth in substance that on April 13, 1887, the said Samuel N. Long purchased from Elizabeth Bailey a certain lot of ground, with the buildings thereon, situate on Main street, in the Borough of Uniontown, for the price or sum of #7,500, and on the same date conveyed the same to his said daughter, Catharine Long Morrow, the consideration named in said last mentioned conveyance being the sum of $7,500; that no money was paid by the said Catharine Long Morrow to her father for said property, it having been the purpose of her father to give her the said sum of $7,500 as an advancement on her share of his estate ; that having five other children and being uncertain whether or not the sum of $7,500 would be in excess, of a child’s share of his estate, and in order that there might be no inequality in the distribution of his estate among his children, the said Samuel N. Long took from his said daughter, Catharine Long Morrow, and her husband, a mortgage on said property to secure the payment to those entitled thereto of such an amount as the sum- of $7,500 might be in excess of a child’s share of his estate; that on January 23, 1890, the said Samuel N. Long entered satisfaction of said mortgage on the margin of the record thereof, and took from his said daughter, Catharine Long Morrow, the bond on which we are asked now to authorize judgment to be entered; that said bond recites: That it is uncertain whether the amount named in said deed, to-wit, $7,500 will be in excess of a child’s share in the estate of said Long, and in case it is it is intended to secure the payment of whatever such excess may be to the said Long, or to other parties who may be entitled to share in the estate of said Long; that the said Samuel N. Long made large advancements to each of his children, taking various acknowledgments for the same; that the total of said advancements amounted to about $43,000.00; that the estate of the said Samuel N. Long, at the time of his death, exclusive of said advancements, amounted to between $25,000 and $30,000; that a child’s share in the whole of said estate, including advancements, would be from $10,000 to $12,000; that there has been ho final statement or settlement of the estate of the said Samuel N. Long; whereby it might be determined what “a child’s share” in said estate was, as required by said bond; and that it is believed that the said sum of $7,500 was not in excess of “a child’s share” in the estate of the said Samuel N. Long, but is considerably less than a child’s share therein, and therefore that there is nothing due from the said Catharine Long Morrow on said bond.</p> <p>On May 22, 1914, a replication was filed by which the plaintiff joined issue on the matters alleged in the answer. No evidence was offered in support of the allegations contained in the answer, and there is nothing properly before the court in support thereof, except what appears in the bond itself. On September 29, 1914, a motion was filed to dismiss the proceeding for the entry of judgment “for the reason that the bond shows on its face that any liability thereunder, and the extent of such liability arises only upon certain contingencies dependent upon and controlled by the settlement of the estate of Samuel N. Long, deceased, exclusive jurisdiction of which is in the Orphans’ Court of Fayette County.” At the argument there was submitted for our decision simply the question raised by defendant’s motion, to-wit, whether or not the Court of Common Pleas has jurisdiction to act in this proceeding. The question of the amount due on the bond, if anything, was not submitted for the decision of the court at this time.</p> <p>We have no doubt of our jurisdiction to make the rule for judgment absolute. The bond itself, which constitutes the basis of the proceeding, contains an express authority from Catharine Long Morrow to any attorney of any court of record “to appear for her and confess judgment against her for the above amount, payable in the manner above stated, with or without declaration filed.” In pursuance of this authority counsel has appeared for the defendant and has signed a confession of judgment. No decision of any court has been cited which, in our opinion, raises any doubt as to our jurisdiction to act on the rule, and we can see nothing whatever in the case to curtail such jurisdiction. We are not passing on the question of the amount due on the bond, or deciding whether or not anything is due thereon. Those matters were expressly withheld by the parties from our consideration at this time. Particularly in view thereof there surely can be no doubt of our jurisdiction to make absolute the rule now before us.</p> <p>The court made the rule absolute. Defendant appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Taxation — Mines and mining — Goal lands — Valuation of hoard of revision — Appeal.</p> <p>On an appeal from a valuation of coal lands by the county commissioners constituting a board of revision, the valuations fixed by the court below will not be disturbed where it appears that the rules applicable to coal lands virgin, or under development, as well as the improvements thereon, were properly applied to the properties in question, and that the court fairly considered all testimony adduced as well as the maps and records submitted, taking into consideration the valuations fixed by former assessors, commissioners, the Coal Tax Commission, and the witnesses, and bearing in mind the depreciation resulting from exhaustion, as well as the enhancement resulting from the advance in the price of coal and the general advance in coal land values in recent years, as testified to by at least one of the experts.</p>

<p>Executors and administrators — Reasonable compensation.</p> <p>Where it appeared that the compensation claimed by executors of a decedents estate was fair and just taking into consideration the character of the services rendered, the responsibility incurred and the zeal and fidelity with which the trust of the accountants was carried out, the court properly allowed the amount claimed.</p>

<p>Wills — Construction—Life estate — Vested and contingent remainders — Rule against perpetuities.</p> <p>1. Where testator by will provided “All the rest and residue of my estate, both real, personal and mixed, of whatsoever kind, and whatsoever the same may be, including my life insurance policy, I will and give to the......trust company to hold in trust for my son, G., and his family,” the lower court correctly decreed that the testator thereby created an active and valid estate in trust for the support and maintenance of his son during life.</p> <p>2. In such case the question as to whom the testator intended to include in the word “family,” and whether the gift to the “family” at the death of the life tenant violates the rule against perpetuities, will not he determined until after the life tenant’s death.</p>

<p>Negligence — Master and servant — Unsafe tools — Case for jury.</p> <p>Where in an action by an employee against his employer for injuries sustained in consequence of the breaking of an iron hook, there was evidence that the hook had been in use for eleven years and had become crystallized and brittle in consequence of such use, and that its condition could, have been ascertained by the use of proper tests, but that no tests had been made, the case was for the jury and the verdict apd judgment for plaintiff were sustained.</p>

<p>Appeal, No. 83, Jan. T., 1915, by plaintiff, from order of C. P. York Co., Oct. T., 1911, No. 214, opening judgment, in case of Catharine E. Hutton v. Kerwin W. Altland, Executor of the Last Will and Testament of Catharine Naylor.</p> <p>Petition for rule to open a judgment entered upon a judgment note. Before Ross, J.</p> <p>From the record it appeared that the judgment defendant alleged that the note, upon which the judgment had been entered, was obtained from her by fraud or else that the note was a forgery; that she had never seen the note or any note similar to that upon which judgment had been entered previous to the entry of the judgment; that the judgment plaintiff was the daughter of the judgment defendant; that although the note was witnessed by two persons, the paper was folded over when they witnessed it and they did not know what paper they were witnessing; that the judgment plaintiff subsequent to the date of the note .had admitted in the presence of a reputable witness that the judgment defendant owed her nothing. Outside of the testimony of the plaintiff there wás nothing on the record to indicate to the court that, the defendant ever had any notice that the judgment note existed until judgment was confessed thereon.</p> <p>The lower court opened the judgment. The judgment plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 214, Jan. T., 1915, by defendant, from decree of C. P. York Co., In Equity, January T., 1915, No. 2, awarding an injunction in,case of York Water Company v. City of York. Bill in equity for an injunction to restrain defendant city from enforcing an ordinance: Before Wanner, P. J., and Ross, J. The opinion of the Supreme Court states the case. The court issued a perpetual injunction restraining the defendant -from enforcing the ordinance complained of.

<p>Appeals — Definitive decree — Decedents’ estates — Certification by register to O. C. — Act of March 15,1832, P. L. 135.</p> <p>1. Where the question as to whether certain testamentary papers should have been admitted to probate was certified by the register of wills to the Orphans’ Court under the Act of March 15, 1832, P. L. 135, and the Orphans’ Court entered a decree directing the register to admit them to probate as constituting the last will of decedent, such decree is definitive and an appeal lies therefrom to the Supreme Court. After such decree the duty of the register is ministerial and not discretionary.</p> <p>Wills — Defectively executed testamentary writings — Admission to probate.</p> <p>2. Defects in the execution or witnessing of a will such that some or all of the bequests therein contained are void, do not prevent the probate of the will but go to the question of distribution.</p> <p>3. Where testatrix, a citizen of Italy left one properly éxecuted will and certain other testamentary writings, not executed according to the laws of Italy, but which contained statements throwing light upon testatrix’s testamentary intention all the papers are properly admitted to probate, their legal effect to be left for future consideration and determination.</p>

<p>Appeal, No. 369, Jan. T., 1911, by the Philadelphia Trust, Safe Deposit and Insurance Company and Theodore L. Harrison, Executors and Trustees of the Estate of Joseph Harrison, Jr., deceased, from decree of O. C. Philadelphia Co., April T., 1879, No. 330, granting an injunction, in estate of Joseph Harrison, Jr., deceased.</p> <p>Petition for an injunction. Before Dallett, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted the injunction. The Philadelphia Trust, Safe Deposit and Insurance Company and Theodore L. Harrison, executors and trustees, appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Principal and surety — Fidelity bond — Duty to discover fraud— Duty to give notice — Judgment, n. o. v.</p> <p>1. Where a bond given by the surety company to secure a corporation against loss suffered by reason of the dishonesty of its officials provides that there shall be liability for loss occurring by such dishonesty only if discovered during the term of the bond or within three months thereafter and immediate notice thereof be given to the surety company, the failure to discover the dishonesty of the bonded officials is not excused by the fact that they conspired together to conceal their fraud.</p> <p>2. Where in such case the bonded officials of the company conspired together during the term of the bond to commit embezzlement, and this was not discovered until after the period named in the bond had expired’ and no notice thereof was ever given the surety company by the corporation obligee, and subsequently a receiver was appointed for the corporation and he brought suit against the surety for the amount of the loss, and the court below sent the case to the jury, notwithstanding the failure to discover and give notice of the fraud within the time fixed in the "bond, on the grounds (1) That there was no person in existence who could bring suit until the receiver was appointed, which was an incorrect assumption, (2) That suit was impossible because of the fraudulent concealment of its liability by defendant, of which there was no evidence and (3) That suit was impossible because of the fraudulent concealment of the fraud by the bonded officials, whose act was to be charged to defendant, the submitting of the case to the jury was error and on appeal judgment was entered for the defendant non obstante veredicto.</p>

<p>Appeal, No. 302, Jan. T., 1914, by plaintiffs, from decree of O. P. Lackawanna Co., Jan. T., 1905, No. 7, in equity, refusing an injunction, in case of Julia M. Miles, Louise E. Dorr, E. M. Smith, Margaret Dorr, Mary Dorr, J. Frank Smith, T. B. Smith, Mame A. Smith, Howard Smith, Edward W. Stark, Conrad S. Stark, John D. Stark, devisees of Conrad S. Stark, and Edward W. Stark, John D. Stark and Joseph W. Kasper, trustees of the estate of Georgea M. Stark, deceased; Elizabeth A. Mosier, James H. Mosier, and F. C. Mosier, D. T. Miles, J. Frank Smith and T. B. Smith, Executors of Anna B. Smith, deceased; E. M. Smith, surviving executor of the estate of Erastus Smith, deceased; Franklin C. Mosier, administrator d. b. n. of estate of John B. Mosier, deceased; Franklin C. Mosier, executor of estate of Elizabeth A. Mosier, deceased, v. The New York, Susquehanna & Western Coal Company, Joseph Jermyn, surviving partner of the firm of Jermyn & Company; Edward A. Sibley, Samuel K. Felton, Hunter Brooke, Harold M. McClure, surviving partners of Elliot, McClure & Company, H. C. Reynolds and H. M. Neeld, executors of estate of Arminda Neeld, widow of Erastus Smith, deceased; Huida A. Drake.</p> <p>Exceptions to report of John P. Kelley, Esq.,- referee.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The referee recommended that the bill be dismissed.</p> <p>The court dismissed exceptions to the report of the referee and entered a decree in accordance with his recommendations. Julia M. Miles, .appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Insurance — Fire insurance — Policy — 0onsiruction — Proof of loss — Requirements—Inventory—Transfer of title — Sheriff’s sale.</p> <p>1. Provisions in a policy of fire insurance are to be strictly construed as against tbe insurer.</p> <p>2. A requirement in a policy of fire insurance, that the insured shall furnish proof of loss within sixty days after a fire, is sufficiently complied with by proper papers filed, showing the necessary elements of proof, although not containing any inventory of the property lost, where the only provision as to an inventory was that the insured should “separate the damaged and undamaged personal property, put it into the best possible order, make a complete inventory of the same, stating the quantity and cost of each article and the amount claimed thereon,” where it appears as a part of the proof of loss that the building and contents were totally destroyed, and there was no damaged or undamaged property, of which an inventory could be made. The fact that plaintiff, upon subsequent demand, furnished an inventory of the lost articles, although after the time limit had expired, is pot material as bearing upon the construction of the contract.</p> <p>3. Where insurance covers the stock of merchandise in a store, and the goods are intended for sale, the condition for the avoidance of the policy, by reason of a clause prohibiting change of ownership or possession, does not apply where title is regained before the occurrence of a loss by fire, the policy being not forfeited but only suspended during the temporary failure of ownership.</p> <p>4. Where insurance covers a stock of merchandise in a store, and it is levied upon and sold to an execution creditor at sheriff’s sale, and prior to a fire, the goods not having been removed from the store, and the execution defendant repurchases them, the policy is not avoided by the sheriff’s sale.</p>

<p>Appeal, No. 383, Jan. T., 1914, by defendant, from judgment of C. P. Berks Co., Oct. T.. 1913, No. 71, on verdict for plaintiff, in case of Emma H. Culp v. The Reading Transit and Light Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Endlich, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Wills — Tested and contingent estates — Illegal accumulations— Distribution — “Survivor”—Act of April 18, 1858, P. L. 508.</p> <p>1. A legacy shall be deemed vested or contingent just as the time shall appear to have been annexed to the gift or the payment of it.</p> <p>2. Where there are no persons under the provisions of a will who are capable of taking illegal accumulations, they are distributable under the intestate law.</p> <p>3. Where testator by will provided that the residue of his estate should be divided when his youngest surviving son attained the' age of twenty-five years, among his widow and certain of his children, “or the survivors of them,” such gift to the widow and children is contingent upon their surviving the period fixed, and the void accumulations created by such provision of the will, are distributable under the intestate law.</p>

<p>Appeal, No. 251, Jan. T., 1914, by Edith S. Kelley, Executrix of the last will and testament of John G. Kelley, deceased, legatee under said will and widow of said decedent, from decree of O. O. Monroe Co., dismissing exceptions to report of auditor in estate of John G. Kelley, deceased.</p> <p>Exceptions to report of Frank B. Holmes, Esq., Auditor. Before Staples, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Edith S. Kelley, Executrix, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Decedent’s estates — Life estates in personal property — Security— W ills — G onstruction.</p> <p>Where a testator gave to his widow two-thirds of his estate for life, and after her death, to a trustee for the use of the daughter of testator by a former marriage and her children, the court erred in requiring the widow to give security for the performance of the trust, where the gift was made to her direct and the trust was active and testator in his will had expressly provided that she was not to give bond and indicated full confidence in her competency, efficiency and integrity.</p>

<p>Appeal, No. 89, Jan. T., 1915, by Louis B. Gillette, Guardian of Donald M. Beckwith, a minor child of Margaret MacFarlane Webb Beckwith, deceased, from decree of O. C. Bradford Go., Dec. T., 1914, No. 21, dismissing exceptions to report of auditor, in Estate of Mary Munson Webb, deceased.</p> <p>Exceptions to report of Charles M. Culver, Auditor. Before Maxwell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Louis B. Gillette, guardian of Donald M. Beckwith, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Municipal corporations — Officers and agents — Negligence—Lia-’ bility — Discretionary duties.</p> <p>1. When a legal duty has been imposed by statute upon a municipal corporation, it is liable for injuries resulting from the neglect thereof, but the duty imposed must be absolute or imperative, not such as, under a grant of authority, is entrusted to the judgment and discretion of the ■ municipal authority. A municipal corporation is not liable for an action for damages either for the nonexercise of, or for the manner in which, in good faith, it exercises discretionary powers of a public or legislative character.</p> <p>2. A municipality is not liable to respond in damages for injuries occasioned through the neglect, incompetency or wrongful act of its duly appointed officers, in enforcing sanitary regulations to prevent the spread of contagious diseases.</p> <p>3. The health authorities of the City of Philadelphia established a quarantine in a certain district in which plaintiff resided. In order to be relieved from the regulations of the quarantine, plaintiff submitted to vaccination by a physician employed by the board of health. The operation was negligently performed, in consequence of which a serious illness resulted, causing the amputation of one of plaintiff’s limbs. In an action against the city to recover damages for the injuries so suffered, a verdict was recovered. Reid, the court did not err in entering judgment for the defendant non obstante veredicto.</p>

<p>Appeal, No. 14, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., June T., 1911, No. 4179, on verdict for defendant, in case of Frida Reiner v. Augustinian College of Villa Nova.</p> <p>Assumpsit for money loaned to defendant. Before Audenried, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plain- • tiff appealed.</p> <p>Errors assigned, among others, were rulings on evidence referred to in the opinion of the Supreme Court, the refusal of the court to permit plaintiff to file an affidavit containing alleged improper remarks by counsel for the defendant in his speech to the jury, and the refusal of the court to direct a verdict for plaintiff.</p>

<p>Appeal, No. 70, Jan. T., 1915, by defendants, from order of C. P. No. 2, Philadelphia Co., Dec. T., 1912, No. 5159, refusing to open a confessed judgment, in case of H. Maxwell Rowland and Omar Shallcross, Executors, &c., of Amos C. Shallcross, Deceased, v. Elizabeth Rowland Clark, Jonathan Rowland, Jr., Amos Shallcross Rowland and Eric Ericson Rowland.</p> <p>Rule to open a judgment entered by confession upon a judgment note.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. The judgment defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals, Nos. 107 and 108, Jan. T., 1915, by Security Trust Company of Camden, N. J., and the Fidelity Title and Trust Company, from judgment of O. P. No. 1, Philadelphia Co., Dec. T., 1913, No. 3224, on case stated, in cases of William Klaus v. Majestic Apartment House Company: The Real Estate Trust Company of Philadelphia, Trustee named in a certain Indenture of Mortgage, dated November 20, 1902, executed by the Majestic Apartment House Company 'v. Majestic Apartment House Company; Security Trust Company of Camden, New Jersey, Trustee under Mortgage dated January 25, 1909, given by Majestic Apartment House Company; Wingate & Son to the use of Mary T. Brown; Joseph R. Wainwright; C. Herbert Simon; Siegfried Koppel, and John A. McCarthy and James S. McCartney, Receivers of the Majestic Apartment House Company.</p> <p>Bill in equity for the appointment of a receiver.</p> <p>Case stated to determine the extent and priority of liens on the property in the hands of the receiver. Before Patterson, J.</p> <p>The case stated was as follows:</p> <p>1. Majestic Apartment House Company, on November 20, 190%, executed a mortgage to secure the payment ''of an issue of bonds of the aggregate par value of $1,-000,000, which mortgage was duly recorded in the recorder’s office of Philadelphia County, in Mortgage Book W. S. V., No. 108, page 396, etc., upon the first day of December, 1902. The bonds secured by said mortgage are all issued and outstanding and owned by and in the legal possession of Fidelity Title and Trust Company, a corporation located at Pittsburgh.</p> <p>2. The granting clause of said deed of trust or first mortgage in which the property is conveyed, or purports to be conveyed as security for the payment of the one million dollars in bonds at par, is as follows, to wit:</p> <p>“Now therefore this indenture witnesseth: That the said party of the first part, in consideration of the premises and the sum of one dollar to it paid at and before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, and for the purpose of securing the due and punctual payment of the bonds aforesaid issued or to be issued as herein provided, and of the interest thereon, hath granted, bargained^ sold, transferred, assigned, set over, conveyed and confirmed, and by these presents doth grant, bargain, sell, transfer, assign, set over, convey and confirm unto the said trastee and to its successors and assigns forever, all and /singular the real and personal property and franchises' \ of "every name and nature whatsoever situate,; whether J now held or owned, or hereafter acquired by the said } party of the first part; and more particularly all of its I apartment house and hotel, consisting of the real estate, ( buildings, fixtures, furniture and plant, situate in the AJíty of Philadelphia, and described as follows:</p> <p>“All that certain lot or piece of ground, with the tenement or messuage thereon erected, situate in the Twentieth Ward of the City of Philadelphia, beginning at a point in the east side of Broad street (113 feet wide) .at the distance of twenty-four feet northward from the north side of Girard avenue (120 feet wide), thence eastward on a line parallel with Girard avenue aforesaid, and passing through the center of the party wall, one hundred and sixty feet, thence northward along the west side of Watts street (40 feet wide), two hundred and ten feet, thence westward along the south side of Stiles street (70 feet wide) one hundred and sixty feet, and thence southward along the east side of Broad street aforesaid, two hundred and ten feet to the place of beginning. (Being the same premises which Charles S. Baker, by indenture bearing date the fifteenth day of July, A. D. 1902, and intended to be forthwith recorded at Philadelphia in the office of the recorder of deeds, granted and conveyed unto Majestic Apartment House Company in fee.) >-</p> <p>“Together with the machinery, furniture, fixed and movable, engines, boilers, and other articles necessary and appurtenant to or now or hereafter to be used in and about the said hotel plant, which the company owns at the present time, or which it may hereafter acquire; and together with all and all manner of franchises of every kind and description, however derived, or wherever located, under the control of, or which have been conferred upon the party of the first part, and more especially the franchises conferred upon the said party of the first part by the Commonwealth of Pennsylvania.”</p> <p>3. On January 25, 1909, Majestic Apartment House Company executed and delivered to Security Trust Company, of Camden, New Jersey, a mortgage to secure the payment of an issue of bonds of the aggregate par value of $500,000, which was duly recorded in Mortgage Book W. S. V. No. 1520, page 229, etc., upon the fifth day of February, 1909. The bonds secured by said mortgage are all issued and outstanding in the hands o'f various parties.</p> <p>4. The granting clause of the said deed of trust, or second mortgage, in which the property is conveyed or purports to be conveyed as security for the payment of the $500,000 in bonds at par, is as follows, to wit:</p> <p>“Now therefore this indenture witnesseth: That the said party of the first part in consideration of the premises and the sum of one dollar to it paid at or béfore the sealing and delivery of these presents the receipt whereof is hereby acknowledged and for the purpose of securing the due and punctual payment of the bonds aforesaid issued or to be issued as herein provided and of the interest thereon, hath granted, bargained, sold, transferred, assigned, set over, conveyed and confirmed, and by these presents doth grant, bargain, sell, transfer, assign, set over, convey and confirm unto the said trustee and to its successors and assigns forever, all and singular the real property, fixtures and franchises of every name and nature whatsoever situate, whether now held or owned, or hereáfter acquired by the said party of the first part, and more particularly all of its apartment house and hotel, consisting of the real estate, buildings, machinery, fixtures and equipment forming a going plant, situate in the City of Philadelphia, and described as follows:</p> <p>"“All that certain lot or piece of ground with the tenement or messuage thereon erected, situate in the Twentieth Ward of the City of Philadelphia, beginning at a point in the east side of Broad street, 113 feet wide, at the distance of twenty-four feet northward from the north side of Girard avenue, 120 feet wide, thence eastward on a line parallel with Girard avenue aforesaid, and passing through the centre of the party wall, one hundred and sixty feet, thence northward along the west side of Watts street, forty feet wide, two hundred and ten feet, thence westward along the south side of Stiles street, seventy feet wide, one hundred and sixty feet, and thence southward along the east side of Broad street aforesaid, two hundred and ten feet to the place of beginning. (Being the same premises which Charles S. Baker, by indenture bearing date the fifteenth day of July, A. D. 1902, and intended to be forthwith recorded at Philadelphia in the office of the recorder of deeds, etc., granted and conveyed unto Majestic Apartment House Company in fee.)</p> <p>“Said property being subject nevertheless to a first mortgage encumbrance of one million dollars, as above set forth, dated November 20, 1902, and duly recorded.</p> <p>“Together with the machinery, fixtures, engines, boilers, and other articles necessary and appurtenant to or now or hereafter to be used in and about the said hotel plant, which the company owns at the present time, or which it may hereafter acquire; and together with all and all manner of franchises of every kind and description, however derived, or wherever located, under the control of, or which have been conferred upon the party of the first part, and more especially the franchises conferred upon the said party of the first part by the Commonwealth of Pennsylvania.”</p> <p>5. Said second mortgage, by its recitals, as well as by the granting clause thereof, showed that it was “to be second in lien, however, to a prior mortgage of one million dollars, dated November 20,1902.”</p> <p>6. Joseph E. Wainwright, on February 24, 1909, secured a judgment against the Majestic Apartment House Company, as of C. P. No. 5, of Philadelphia County, December Term, 1908, No. 5564, damages being assessed on December 15, 1913, in the sum of $13,200.</p> <p>7. On December 13, 1913, C. Herbert Simon obtained a judgment and assessed damages against the Majestic Apartment House Company as of C. P. No. 2, of Philadelphia County, September Term, 1913, No. 3536, in the sum of $9,526.82.</p> <p>8. On December 13, 1913, C. Herbert Simon issued a writ of fieri facias on his judgment, and the sheriff, pursuant to the terms of the writ, levied upon all of the stock, fixtures and household furniture and contents of said hotel and apartment house. A complete list of the property of the Majestic Apartment House Company, so levied upon, is contained in the catalogue issued by Barnes & Lofland, auctioneers.</p> <p>9. On December 15,1913, a writ of fieri facias was issued upon the judgment obtained by Joseph E. Wainwright, above set forth, and the sheriff, by virtue of the said writ, levied upon the same property as was covered by the levy of said C. Herbert Simon.</p> <p>10. On the ninth day of January, 1914, William Klaus, a stockholder of the Majestic Apartment House Company, filed his bill in equity for the appointment of receivers for said company, and on January 14,1914, John A. McCarthy and James S. McCartney were appointed receivers.</p> <p>11. On February 10, 1914, The Eeal Estate Trust Company of Philadelphia petitioned the court for leave to intervene in this cause and for leave to have the said receivers vested with the powers of receivers under the terms of the first mortgage, which order and decree was granted by the court.</p> <p>12. On March 10, 1914, foreclosure proceedings were begun in this cause upon the first mortgage.</p> <p>13. On May 6, 1914, a bill in equity was filed by The Real Estate Trust Company of Philadelphia, trustee under the first mortgage hereinbefore recited, for an order upon C. Herbert Simon restraining him from proceeding upon the writ of fieri facias issued by him under his judgment, and a special hearing was held on May 11, 1914, upon the application for a preliminary injunction, and the court granted an injunction and entered a decree, a copy of which is as follows:</p> <p>“And now, to wit, May eleventh, 1914, upon consideration of the bills for restraining orders filed in the above-entitled causes by The Real Estate Trust Company of Philadelphia, trustee, etc., praying, inter alia, that C. Herbert Simon and the sheriff of Philadelphia County should be restrained as to the execution levied upon certain personal property of the Majestic Apartment House Company, in the cause entitled ‘C. Herbert Simon v. Majestic Apartment House Company, C. P. No. 2, September term, 1913, No. 3536,’ and after due hearing in open court by this court in conjunction with the president judge of the Court of Common Pleas No. 2, and at the conclusion of such hearing, by consent of counsel, the said cause entitled in the Court of Common Pleas No. 2, as above, was transferred to this court to the cause of the first of the above-entitled numbers, it is ordered that C. Herbert Simon and A. Lincoln Acker, high sheriff of Philadelphia County, be, and they hereby are, restrained from proceeding further to execution under the writ of fieri facias issued under the judgment in the cause entitled ‘C. Herbert Simon v. Majestic Apartment House Company, C. P. No. 2, September Term, 1913, No. 3536/ which was levied upon the stock, fixtures and household furniture and contents of the Majestic Apartment House Company, and more particularly from proceeding further with the sale of such property advertised to take place upon May 13, 1914; and that such writ shall he retained in the hands of such sheriff as unreturned until the final disposition of the fund realized by the sale of said property so levied upon at the hands of The Real Estate Trust Company of Philadelphia, trustee, etc., under its above-entitled foreclosure bill, as set forth in said bill, such lien upon said property- so levied upon as the said C. Herbert Simon acquired by virtue of said levy to be maintained and relegated and attached to the fund to be produced by the trustee’s sale aforesaid; the decision of all questions of rights in said fund priority, and order of lien and awards thereunder to be decided at the time of the distribution of such fund; the proceeds of the property levied upon under said writ to be earmarked in the hands of such trustee, and to be distributed as a separate fund, representing in all respects as to rights of participation therein the property itself, as though the liens thereon had not been discharged by the sale.</p> <p>“This order to be conditioned upon the Fidelity Title and Trust Company of Pittsburgh, the holder of all the bonds of the Majestic Apartment House Company secured by the mortgage to the Real Estate Trust Company of Philadelphia, trustee, stipulating and agreeing of record in this cause that it will bid, or cause to be bid, at the sale by such trustee as aforesaid under the decree of foreclosure, of such property so levied upon, a sum of at least thirty thousand dollars ($30,000) and upon entering the usual injunction bond in the sum of $12,000.</p> <p>“Bregy, P. J.</p> <p>“May 12, 1914, The Fidelity Title and Trust Co. (of Pittsburgh) is approved as security.</p> <p>“Bregy, P. J.”</p> <p>14. On May 6, 1914, a similar bill in equity was filed by The Real Estate Trust Company of Philadelphia, trustee under said hereinabove recited first mortgage, for an order upon Joseph R. Wainwright, restraining him from proceeding upon the writ of fieri facias issued by him under his judgment, and at the special hearing held on May 11, 1914, recited in paragraph 13 hereof, upon the application for a preliminary injunction, the court granted an injunction and entered a decree, similar in all respects (save as to court, term and number and the names of the parties) to the decree entered in the injunction proceedings against C. Herbert Simon, and more fully set forth in paragraph 13, hereinabove.</p> <p>15. On May 13, 1914, C. Herbert Simon appealed to the Supreme Court, to January Term, 1914, No. 181, assigning as error the entry of the decree -quoted in paragraph 13, above. Said appeal was dismissed on May 22, 1914, by the Supreme Court in a per curiam opinion, reported in 245 Pa. 585, at 588. Said opinion follows:</p> <p>“The decree appealed from was made in the exercise. of the chancery powers of the court. It does not deprive the appellant of his right to have his execution satisfied out of the proceeds of the sale of the personal property of the Majestic Apartment House Company if he has such right. The bond given by the Fidelity Title and Trust Company insures the payment for said property of a sum largely in excess of what will be required to pay the appellant if he has the preference which he claims. Whether he has such preference can be determined by the court after due consideration upon final hearing or on distribution of the proceeds of sale made by the receiver. We have not been persuaded that we should depart from the rule as to the noninterference with preliminary injunctions, and the appeal is dismissed without prejudice to any rights of the appellant, the costs to be disposed of on final hearing.”</p> <p>16. The Real Estate Trust Company of Philadelphia, as hereinbefore recited, having started foreclosure proceedings, proceeded with the same, and a decree ordering sale was entered on the twenty-fifth day of May, 1914, which said decree reserved</p> <p>“----for future decision by the court, the question as to the priority of such lien over other liens upon the personal property included in such conveyance in mortgage.”</p> <p>Said decree further provided that the sale should be conducted by first offering the entire plant as a whole (including the real estate, engines, boilers and fixtures, furniture and other personal property contained in the hotel and apartment house); secondly, by offering the real estate, engines, boilers, and fixtures; and thirdly, by offering the furniture and other personal property'. Provision was therein made for earmarking the proceeds of the sale of personalty, if the place were sold as an entirety (as subsequently transpired) and the trustee was in such event directed to report to the court for distribution as though the sale had been of the personalty under the third method of sale above set forth. By said decree, all parties were, by virtue of the sale, to be barred of any equity of redemption.</p> <p>17. In accordance with the above recited decree of foreclosure, The Real Estate Trust Company of Philadelphia, as trustee, as aforesaid, exposed the property for sale and made return to the court. A final decree was entered by the court on the fifth day of December, 1914, a copy of which is as follows:</p> <p>“And now, to wit, December 5, 1914, no exceptions having been filed to the decree entered on November 23, 1914, after the hearing of the trustee’s return of sale on that date, of which hearing all parties of record had notice and opportunity to be heard, and no objection to the form of the decree then presented having been made, it is “ordered, adjudged and decreed, that the decree entered by this court, on November 23, 1914, shall be, and the same hereby is forthwith made final and absolute as the final decree in this cause, to wit:</p> <p>“1. That the sale to Fidelity Title and Trust Company of Pittsburgh, on October 1st, 1914, of the property hereinafter more particularly described, be, and the same is hereby confirmed.</p> <p>“2. That upon the expiration of twenty-one days from the date of this decree, unless an appeal be taken therefrom in the meantime, The Eeal Estate Trust Company of Philadelphia, as trustee, mortgagee, named in the indenture of mortgage, dated November 20th, 1902, and given by Majestic Apartment House Company, to foreclose which these proceedings were instituted, be, and it is hereby directed, upon receipt of the consideration set forth in paragraphs 3 and 4 of this decree, to execute and deliver to Fidelity Title and Trust Company of Pittsburgh, its deed, granting and conveying to said Fidelity Title and Trust Company of Pittsburgh, its successors and assigns, free from all and every the trusts by said indenture of mortgage created, free and clear of all rights or claim of redemption on the part of Majestic Apartment House Company, or any other person or persons whomsoever, and free and discharged of all liens and encumbrances of whatsoever description subsequent to the date of recording of said mortgage and without liability upon the part of the said Fidelity Title and Trust Company of Pittsburgh, purchaser, as aforesaid, to see to the application of the purchase-money, all the land, property, rights, estates and franchises of Majestic Apartment House Company in said indenture of mortgage described, as also all the property, rights, estates and franchises of Majestic Apartment House Company, mortgagor, acquired since the execution and delivery of the said mortgage, and particularly those specially described in said mortgage and by said Majestic Apartment House Company, mortgagor as aforesaid, owned and possessed at the time of the institution of these proceedings of foreclosure, as follows:</p> <p>“All and singular the real and personal property and franchises of every name and character whatsoever situate, now held or owned by the said mortgagor, and more particularly all of its apartment house and hotel, consisting of the real estate, buildings, fixtures, furniture and plant, situate in the Twentieth Ward of the City of Philadelphia, particularly describing the real estate.</p> <p>“Together with the machinery, furniture, fixed and movable, engines, boilers, and other articles necessary and appurtenant to or now used in and about the said hotel plant; and together with all and all manner of franchises of every kind and description, however derived, or wherever located, under the control of, or which have been conferred upon the said Majestic Apartment House Company, and more especially the franchises conferred upon it by the Commonwealth of Pennsylvania.</p> <p>“3. That- Fidelity' Title and Trust Company of Pittsburgh, purchaser as aforesaid, in making settlement for the payment of the purchase-money, be entitled and permitted to deliver to the trustee (who is hereby directed to receive the same) the bonds and coupons secured by said indenture of. mortgage of November 20th, 1902, which may then be unpaid, and held by said Fidelity Title and Trust Company of Pittsburgh, toward the payment of the purchase price of $651,000.00, bid at said public sale held on October 1st, 1914, reckoning and computing said bonds and coupons for that purpose, at a sum equal to and not exceeding that which shall be payable out of the net proceeds of the said sale to the purchaser, Fidelity Title and Trust Company of Pittsburgh, as the holder of such bonds and coupons, for its just share and proportions thereof, upon a due accounting and distribution thereof, (and after allowing for the proportion of payment required by paragraph 4 of this decree to be paid in cash,) which sum so allowed on account of payment shall be credited on the bonds and coupons so presented, after the final accounting of the trustee and in the amounts as ascertained and directed by the court.</p> <p>“4. That the Fidelity Title and Trust Company of Pittsburgh, purchaser as aforesaid, in making present settlement for the payment of the purchase-money, be required to pay The Eeal Estate Trust Company of Philadelphia, trustee, mortgagee, in addition to the sum of $60,000.00 paid on October 1st, 1914, on account of its bid of $651,000.00 the sum of $102,046.15, in accordance with the estimate of claims having probable or possible priority in payment over the said deposited first mortgage bonds and accompanying coupons, set forth in the trustee’s return of sale filed November 23d, 1914, which sum so paid by said purchaser, and any further cash sums which may be found by the court to be required to be paid by the purchaser to satisfy any claims entitled to priority over said bonds, shall be held by the trustee and distributed in accordance with the further order of this court relating to the due accounting and distribution thereof.</p> <p>“5. That such amount of the cash sum or sums paid by the said purchaser, Fidelity Title and Trust Company of Pittsburgh to the trustee under this and the previous orders of the court as is found by the court not to be required to satisfy claims entitled to payment in priority to said bonds, shall be repaid to the purchaser, Fidelity Title and Trust Company, as hereafter directed by the court.</p> <p>“6. That of the cash sum or sums paid or required to be paid by the purchaser as aforesaid on account of the purchase-money, the amount of $30,046.15, shall be held by the' trustee as a separate fund in accordance with the previous orders of the court, to represent the proceeds of certain property in the hotel which was exposed to sale and sold by the trustee under the third method set forth in the decree of sale, in accordance with the said previous orders of the court and which produced the highest registered bid of $30,000.00, as set forth in the trustee’s return of sale; and which fund shall represent in distribution the entire proceeds of the sale of such property, and be subject to distribution as though it were the property itself, subject to whatever lawful claims may be established, as against such property as before conversion and distribution of such special fund shall be made as hereafter determined by the court.”</p> <p>18. The Majestic Apartment House Company retained exclusive control and possession of the personal property hereinbefore referred to up until the date of the levies made by the sheriff upon the judgments held by the said C. Herbert Simon and Joseph R. Wainwright.</p> <p>19. Neither The Real Estate Trust Company of Philadelphia, the trustee under the hereinbefore recited mortgage of $1,000,000, nor any of the holders of bonds secured by the said mortgage, took any action of any kind whatsoever to secure actual physical possession of the said personal property until after the property had been levied upon by the sheriff by virtue of the writs issued on the judgments held by C. Herbert Simon and Joseph R. Wainwright, nor was any action taken by or on behalf of the said trustee or the holders of said bonds in relation to the said personal property whatsoever, until the court, by the decree hereinbefore referred to in paragraph 11, vested the receivers of Majestic Apartment House Company with powers of receivers under the mortgage.</p> <p>20. Neither Security Trust Company, of Camden, New Jersey, trustee under the mortgage to secure payment of the bond issue of $500,000, nor any of the holders of bonds secured by the said mortgage, took any action whatsoever in reference to securing actual physical possession of the said personal property.</p> <p>21. No actual physical delivery or any attempt at such delivery of the said personal property was ever made by Majestic Apartment House Company, either to said The Real Estate Trust Company of Philadelphia, trustee, or to Security Trust Company, of Camden, New Jersey, trustee, under the above reeded mortgages, or to any of the bondholders secured by the said two mortgages.</p> <p>22. The property sold (which created the fund of $30,-046.15, as aforesaid), was purchased for use in and contained in the apartment house and hotel, and consisted of the property specifically set forth in the catalogue issued by Barnes & Lofland. Whether all of this property was in use in the apartment house and hotel at the time of the levies, or whether all of this property was in the possession of the mortgagor, and in use in the apartment house and hotel at the date of the execution and recording of either or both of said mortgages, and if not, what portion was so in use or in possession of the said mortgagor, it is now impossible to state with any degree of certainty.</p> <p>23. The personal property sold by the order of the court, the sale of which was confirmed in the above recited decree of December 5,1914, comprised the property set forth in the auctioneer’s catalogue, and was the property levied upon by the sheriff by virtue of the writs of fieri facias issued upon the judgment of C. Herbert Simon and the judgment of Joseph R. Wainwright. The fund of $30,046.15, referred to, is in the hands of The Real Estate Trust Company of Philadelphia, trustee, as aforesaid, in a separate fund, and the court is requested to make such order concerning the distribution of this fund of $30,046.15 as is just and proper under the hereinbefore recited facts, the said fund being claimed first, by C. Herbert Simon and Joseph R. Wainwright (to the extent, only, however, of their judgments, with interest and costs thereon); secondly, by Fidelity Title and Trust Company (of Pittsburgh, Pennsylvania) under and by virtue of the first mortgage bonds owned and held by it, and more particularly, under and by virtue of the decree of December 5, 1914; and, thirdly, by Security Trust Company, of Camden, New Jersey, under and by virtue of the second mortgage hereinbefore referred to, under which it acts as trustee.</p> <p>24. Each of the parties i'jiyeto reserves the right of appeal. f</p> <p>Patterson, J.f filed the following opinion:</p> <p>This proceeding arises on a case stated regarding the distribution of a fund of $30,046.15, realized upon the sale of the personal property of the Majestic Apartment House Company, sold upon foreclosure of the first mortgage given by that company.</p> <p>The essential facts contained in the case stated are as follows:</p> <p>On November 20,1902, the Majestic Apartment House Company executed to the Real Estate Trust Company of Philadelphia a mortgage to secure the payment of 'bonds of the aggregate par value of $1,000,000. This ■mortgage was upon</p> <p>“All and singular the real and personal property and franchises, of every name and nature whatsoever, whether now held or owned or hereafter acquired by the ‘Majestic Apartment House Company’ more particularly all of its apartment house and hotel consisting of the real estate, buildings, fixtures, furniture and plant, situate in the City of Philadelphia.”</p> <p>After describing the real estate the mortgage adds: “together with the machinery, furniture, fixed and movable, engines, boilers and other articles necessary and appurtenant to or now or hereafter to be used in and about the said hotel plant which the company owns at the present time or which it may hereafter acquire.”</p> <p>On January 25, 1909, the Majestic Apartment House Company executed to the Security Trust Company of Camden another mortgage to secure the payment of bonds of the aggregate par value of $500,000. This mortgage by its terms was secured upon</p> <p>“All and singular the real property, fixtures and franchises of every name and nature wheresoever situate, whether now held or owned or hereafter acquired by ‘The Majestic Apartment House Company’ and more particularly all of its apartment house and hotel, consisting of the real estate, buildings, machinery, fixtures and equipment forming a going plant, situate in the City of Philadelphia.”</p> <p>After the description, which is the same as in the first mortgage, are the words</p> <p>“Together with the machinery, fixtures, engines, boilers and other articles necessary and appurtenant to or now or hereafter to be used in and about the said hotel plant which the company owns at the present time or which it may hereafter acquire.”</p> <p>In the mortgage to the Security Trust Company, immediately after the words of the description of the real estate, is the following clause:</p> <p>“Said property being subject nevertheless to a first mortgage encumbrance of $1,000,000, as above set forth, dated November 20th, 1902, and duly recorded.”</p> <p>This mortgage also recites the resolution of the board of directors of the Majestic Apartment House Company containing the words:</p> <p>“Said mortgage being second in lien, however, to a prior mortgage for $1,000,000, dated November 20th, 1902.”</p> <p>In December, 1913, Simon and Wainwright, each of whom had, subsequent to the making of both of these mortgages, obtained judgments against the Majestic Apartment House Company, issued executions thereon and attempted to levy upon the personal property of the ■Majestic Apartment- House Company. The executions were stayed and orders made directing that the property levied upon should be separately sold and the proceeds brought into court for distribution in this cause.</p> <p>Subsequently to the issuance of these executions the bill in equity, which was the commencement of the present proceedings, was brought, and the receivers appointed.</p> <p>The question, therefore, to be decided is, which of the parties has a lien upon the fund, or any part thereof.</p> <p>Let us take up the claims of the various parties in accordance with the chronological order of their alleged liens; namely:</p> <p>(1) The Real Estate Trust Company of Philadelphia, first mortgagee ;</p> <p>(2) Security Trust Company of Camden, New Jersey, second mortgagee;</p> <p>(3) Messrs. Simon and Wainwright, execution creditors.</p> <p>I. Is the mortgage of November 20, 1902, which was executed by the Majestic Apartment House Company to the Real Estate Trust Company of Philadelphia, to secure the payment of bonds of the aggregate par value of $1,000,000, a lien upon personal property, consisting of furniture and plant, as against the execution creditors of the company?</p> <p>In 1902, when the mortgage to the Real Estate Trust Company was given, the issuance of corporate mortgages was governed by the statute of May 21,1889, P. L. 257; (1 Stewart’s Purdon, 812), the relevant portion of which reads as follows:</p> <p>“It shall be lawful for all corporations to borrow money or to secure any indebtedness created by them, by issuing bonds, with or without coupons attachéd thereto, and to secure the same by a mortgage or mortgages to be given and executed to a trustee or trustees for the use of the bondholders upon their real estate and machinery or on their real estate alone to an amount not exceeding one-half of the capital stock of the corporation paid in, and at a rate of interest not exceeding six per centum.”</p> <p>The amount of the indebtedness which might lawfully be issued was controlled by Section 1 of the Act of February 9,1901, P. L. 3 ; (1 Stewart’s Purdon, 808), which provides that:</p> <p>“The capital stock or indebtedness or both of any corporation created by general or special law may, with the consent- of the persons or bodies corporate holding the larger amount of value of its stock, be increased to such an ainount in the aggregate of each as it shall deem necessary to accomplish and carry on and enlarge the business and purpose of the corporation.”</p> <p>There can be no doubt that the Majestic Apartment House Company, by the mortgage of 1902, was attempting to mortgage its personal property other than its machinery. That it recognized the distinction between furniture and machinery was apparent by the words of the mortgage, which purported to assign not merely buildings, but “fixtures, furniture and plant,” as stated in one passage, or “the machinery, furniture, fixed and movable, engines, boilers and other articles necessary and appurtenant to......said hotel plant” as stated in another passage.</p> <p>The company, therefore, was attempting to create, by its first mortgage, a lien upon other articles than those which it was authorized to mortgage by the statutes of this Commonwealth then in force. Only “real estate and machinery” or “real estate alone” was covered by the Act of 1889, and the Act of 1901, while it varied the amounts for which the mortgage might be created, did not enlarge the kinds of property upon which the mortgage could be placed.</p> <p>Counsel for the Fidelity Title and Trust Company of Pittsburgh, which is the owner of the bonds secured by the first mortgage, has ingeniusly argued that under the terms of the mortgage the words “hotel plant” include all personal property in such “plant,” necessary for its operation as such, whether or not attached to the realty, and should consequently be treated as realty.</p> <p>We have examined with great care the authorities submitted by the learned counsel in his attempt to sustain this position. We are of opinion, however, that while, as between the mortgagee and the mortgagor, such an interpretation might prevail, if it were the intention of the parties to create such a mortgage, yet the law of Pennsylvania is well settled that chattel mortgages are void as against creditors.</p> <p>The latest judicial utterance upon this subject is to be found in Barlow v. Fox, 203 Pa. 114. In that case the Supreme Court held that a pledge of hotel furniture was invalid against creditors unless there was a delivery of possession.</p> <p>Mr. Justice Fell, in delivering the opinion of the court, said (p. 118):</p> <p>“There has been no deviation from the general rule that delivery of possession i(s indispensable to transfer a title, by the act of the owner, that shall be valid against creditors.”</p> <p>The learned counsel for the Fidelity Title and Trust Company also argued that a hotel company may mortgage its furniture and equipment under the provisions of the Act of 17th April, 1876, P. L. 30 (2 Stewart’s Purdon, 13th Ed., page 1847).</p> <p>We have carefully read this act of assembly and fail to find that it anywhere provides that a chattel mortgage good against creditors may be created whereby the mortgagor retains possession of the personalty.</p> <p>Clearly, therefore, the mortgage of 1902 created no lien upon the furniture of the hotel. As to that mortgage the liens created by the executions of Simon and Wainwright are good, because they are levied upon properties which the mortgagor could not, at the time of the creation of the mortgage, have bound by its mortgage.</p> <p>II. Is the mortgage of January 25, 1909, which was executed by the Majestic Apartment House Company to the Security Trust Company of Camden, to secure the payment of bonds of the aggregate par value of $500,000, a lien upon the personal property, consisting of furniture and plant, as against the execution creditors of the company?</p> <p>Before taking up the question of whether or not the second mortgage is a valid lien upon the fund in controversy, so far as general creditors are concerned, we wish to say that we are of opinion that all the property of the Majestic Apartment House Company mentioned in the second mortgage is subject to a prior lien of the first mortgage. We base this conclusion upon tbe ground that the second mortgage was, in express terms, made subject to tbe lien of the first mortgage, tbe holders of tbe second mortgage bonds having waived any objection which might otherwise have been urged against tbe validity of tbe first mortgage bonds.</p> <p>In Bronson v. La Crosse ■& Milwaukee Railroad Co., 69 TJ. S. 283, it was held that where a mortgage is made in express terms subject., to certain bonds secured by prior mortgage, those bonds being negotiable in form, and having, in fact, passed into circulation before such mortgage was given, tbe junior mortgagees, and all parties claiming under them, are estopped from denying tbe amount or validity of such bonds so secured, if in tbe bands of bona fide holders.</p> <p>See also: Fidelity Ins. Trust & Safe Deposit Co. v. West Penn. & Sbenango Connecting Railroad Co., 138 Pa. 494.</p> <p>It thus appearing that tbe rights of tbe second mortgage bondholders are subject to tbe rights of tbe first mortgage bondholders, let us see whether tbe second mortgage is a lien upon tbe furniture of tbe hotel.</p> <p>After tbe creation of tbe mortgage of 1902 and before tbe creation of the mortgage of 1909, tbe legislature by an' act approved April 22, 1905, P. L. 280; (5 Stewart’s Purdon, 5340), Amended Section 1 of tbe Act of February 9, 1901, P. L. 3, above quoted by inserting, after tbe words, “tbe aggregate of each,” tbe words, “without regard to tbe amount of tbe other and regardless of any limitation upon tbe amount of either prescribed in any" general or specific law regulating such corporation”; and by adding at tbe end of tbe clause tbe following words:</p> <p>“And upon tbe authorizing of. any such increase of indebtedness by the stockholders of such corporation in. tbe manner hereinafter provided, it shall be lawful for-such corporation to secure tbe payment of tbe principal* or interest or both of all or any part of such indebtedness". by mortgage, deed of trust or other pledge or conveyance by way of security of all or any part of its real and personal property, rights, privileges and franchises and in such manner and upon such terms as its board of directors may determine.”</p> <p>This Act of 1905 by its title makes no pretense of changing the law on the subject of chattel mortgages' and the rights of creditors, and does not purport to make any change in the policy of the law of Pennsylvania on. this subject. The plain meaning of the act is that" a corporation is relieved from the limitation heretofore existing upon the amount of the indebtedness as com-, pared to this capital stock, and, second, that a corpora-tion may borrow money upon a mortgage of its real estate, or by a deed of trust, or by a pledge or conveyance of any of its real or personal property. The necessary meaning of the act in view of the words of its title is that it must do so in the manner now prescribed by law, to wit, if it is a mortgage of real estate, to be valid as against subsequent purchasers and judgments, that1 mortgage must be recorded. If, on the other hand, it is to be a pledge of its personal property, to be valid as against creditors the pledge must be made in accordance with the established law, and as the nature of the word implies, the possession of the personal property must be given to the pledgee: Boberts’ & Pyne’s App., 60 Pa. 400.</p> <p>The act should be construed in accordance with the public policy of the State of Pennsylvania, if such a-construction is possible. Assuming, however, that it was the intention of the legislature to change the policy of the State as to chattel mortgages, certainly the title of the act does not give the slightest intimation of such-' intention. The act is entitled:</p> <p>“An act to amend section one of the act entitled ‘An act to provide for increasing the capital stock and indebtedness of corporations’ approved the ninth day of February, Anno Domini one thousand nine hundred and one; authorizing corporations to increase their capital stock and indebtedness and secure the payment of principal and interest of their indebtedness.”</p> <p>If the legislature intended to authorize chattel mortgages and to permit the property to remain in possession of the mortgagor and to make such mortgage good as against creditors, there should have been incorporated in the title of the act the language of the act which is relied upon as authority for the same, viz:</p> <p>“By mortgage, deed of trust, or other pledge or conveyance, by way of security, of all or any part of the real and personal property, rights, privileges and franchises, and in such manner and upon such terms as its board of directors may determine,”</p> <p>or equivalent language. We know of no rule of constitutional construction which would permit us to read into the title of the act the language above quoted or any equivalent thereof, and then proceed on that basis to construe the act as changing the settled policy of the Commonwealth of Pennsylvania regarding chattel mortgages. We are, therefore, of the opinion that the act is unconstitutional for the reasons above given. '</p> <p>Counsel for the execution creditors have also suggested that to construe the Act of 1905 so that it would authorize chattel mortgages, good against creditors, would be not only in violation of Article III, Section 7, of the Constitution of Pennsylvania, prohibiting the granting to any corporation of any exclusive privilege or immunity, but also Article III, Section 7, of the Constitution, prohibiting special or local law changing methods for the collection of debts.</p> <p>We are of opinion that it is unnecessary to decide whether or not these provisions of our State Constitution would be violated.</p> <p>. III. Are the execution creditors entitled to the full amount of their claim?</p> <p>Prom what we have already said it would appear that the first and second mortgagees have no lien as against’ the rights of execution creditors upon the personal property which they attempted to cover by their mortgages.</p> <p>The admitted facts show that on February 24, 1909, Joseph R. Wainwright secured a judgment against the Majestic Apartment House Company, as of C. P. No. 5, of Philadelphia County, December Term, 1908, No. 5564, damages being assessed on December 15, 1913, in the sum of $13,200; and that on December 13,1913, C. Herbert Simon obtained a judgment and assessed damages against the Majestic Apartment House Company, as of C. P. No. 2, of Philadelphia County, September Term, 1913, No. 3536, in the sum of $9,526.82.</p> <p>On December 13,1913, C. Herbert Simon issued a writ of fieri facias on his judgment, and the sheriff, pursuant to the terms of the writ, levied upon all the stock, fixtures and household furniture and contents of said hotel and apartment house. A complete list of the property of the Majestic Apartment House Company so levied upon, is contained in the catalog issued by Barnes & Lafland, auctioneers.</p> <p>On December 15,1913, a writ of fieri facias was issued upon the judgment obtained by Joseph R. Wainwright, above set forth, and the sheriff, by virtue of the said writ, levied upon the same property as was covered by the levy of said C. Herbert Simon.</p> <p>We are of opinion:</p> <p>(1) That the lien of the Fidelity Title and Trust Company (of Pittsburgh, Pa.) under and by virtue of the first mortgage bonds owned and held by it, and more particularly under and by virtue of the decree of December 5,1914, is limited to the realty, and that so far as th,e fund of $30,046.15 is concerned, it stands in the position of a general creditor;</p> <p>(2) That so far as the lien of the Security Trust Company (of Camden, N. J.) under and by virtue of the second mortgage is concerned, it is in the position of a general creditor, subject, however, to the priority of the first mortgage. In other words, the first mortgage must be satisfied before those claiming under the second mortgage can recover any part of the fund in controversy; and</p> <p>(3) C. Herbert Simon and Joseph E. Wainwright, the execution creditors, are entitled to the amount of their judgments with interest and costs thereon. The balance of the fund is awarded to the Eeal Estate Trust Company of Philadelphia, trustee, it being the other judgment creditor.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 400, January T., 1914, by plaintiff, from order of C. P. No. 1, Philadelphia Co., June T., 1914, No. 1777, refusing judgment for want of a sufficient affidavit of defense, in case of The Fox Chase Bank v. Wayne Junction Trust Company. Assumpsit on a policy of indemnity. Rule for judgment for want of a sufficient affidavit of defense. Before Bregy, P. J. The opinion of the Supreme Court states the facts.

<p>Constitutional law — Police power — Constitution of the United States — Fourteenth amendment — Constitution of Pennsylvania— Moving pictures — State Board of Censors — Act of June 19, 1911, P. L. 1067.</p> <p>1. Nothing hut a clear violation of the .Constitution — a clear usurpation of power prohibited — will justify'the judicial department in pronouncing an act of the legislative department unconstitutional and void.</p> <p>2. The police power of the Commonwealth extends to all regulations affecting the health, good order, morals, peace and safety of society, and under it all sorts of restrictions and burdens may be imposed, and when they are not in conflict with any constitutional principles, they cannot be successfully^ assailed in a judicial tribunal.</p> <p>3. The Act of June 19, 1911, P. L. 1067, providing for the appointment of a State Board of Censors to regulate the operation and exhibition of moving picture films, is constitutional. It is not in violation of the Bill of Rights of the Constitution of Pennsylvania, or of the Fourteenth Amendment of the Constitution of the United States.</p>

<p>Appeal, No. 95, January T., 1915, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., September T., 1914, No. 3190, refusing an injunction, in case of Frank A. Chalmers v. City of Philadelphia, Rudolph Blankenburg, Mayor of said city, George D. Porter, Director of the Department of Public Safety of said city, and John M. Lukens, Chief of the Bureau of Boiler Inspection of said Department of Public Safety of said city.</p> <p>Bill in equity to enjoin defendants from enforcing the provisions of the Act of April 18, 1899, P. L. 49.</p> <p>Demurrer to bill. Before McMichael, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court sustained the demurrer and dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 98, January T., 1915, by the General Synod of the Reformed Church in America, from order of Q. S. Philadelphia Co., quashing petition for the appointment of viewers in the matter of the opening of the avenue or parkway between City Hall and Fairmount Park.</p> <p>Petition for the appointment of viewers to assess damages resulting from the opening of the parkway. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court quashed the petition. The General Synod of the Reformed Church in America appealed.</p> <p>Error assigned was the order of the court.</p>

Appeals, Nos. 104, 105, 109 and 146, by Richard S. Hunter, executor of the Estate of Catherine L. Tatham, deceased, administrator of the estate of George N. Tatham, Jr., deceased; Mary E. Tatham, administratrix C. T. A. of Edmund R. Tatham, deceased, and Caldwell K. Biddle, executor of Catherine K. Tatham, widow of William P. Tatham, deceased, from decree of O. C. Philadelphia Co., October T., 1889, No. 242, dismissing exceptions to adjudication, in estate of George N.…

<p>Appeal, No. 120, January T., 1915, by defendant, from judgment of Superior Court, October T., 1914, No. 233, affirming order of Municipal Court of Philadelphia County, February T., 1914, No. 186, refusing to quash writ of adjudication, in case of Commonwealth of Pennsylvania, ex rel., v. Jacob Shecter.</p> <p>Head, J., filed the following opinion, Judges Kephart and Trexler dissenting:</p> <p>The difficulties, if any, which may attend the proper solution of the question presented to us by this record do' not arise because of any complications in the question itself. On the contrary it is single and simple, and the situation from which it springs may thus be stated.</p> <p>On December 16, 1913, the Court of Quarter Sessions of Philadelphia County — after a hearing in an ordinary desertion case — ordered and decreed that the defendant, the present appellant, pay his wife “the sum of four 50-100 dollars per week for the support of herself from this date, etc.” On July 12, 1913, P. L. 711, the statute creating the Municipal Court was approved. In the eleventh section of that act it is declared, inter alia: “The jurisdiction of the said. Municipal Court shall be exclusive, (a) in all proceedings brought against any husband wherein it is charged that......he has neglected to maintain his wife or children.” In the final section this general grant of power will be found: “The said Municipal Court,......subject to the provisions of this act, shall have all of the powers of a court of record possessed by the Courts of Common Pleas, and of Quarter Sessions of the Peace and Oyer and Terminer in the County of Philadelphia.”</p> <p>Later on, after the election of the judges and the organization of the Municipal Court, the wife, at whose instance the original proceeding had been begun, filed in the Municipal Court, her affidavit setting forth her husband had failed or refused to comply with said order, and was then some four weeks in arrears. Thereupon that court issued its process, and the defendant was brought in. He filed an answer denying the jurisdiction of the Municipal Court to enforce the order made by the Quarter Sessions, and alleging that any attempt so to do would be “an interference with the powers of the judge and the court having original jurisdiction.” After hearing and argument the court, in an opinion filed by President Judge Brown, determined it had jurisdiction, and made an order directing the defendant to presently pay the sum in arrears, and to continue the payment of the weekly sum fixed by the original order of the Quarter Sessions. It was further ordered “that he stand committed until this order be complied with, or he enter security for the faithful performance thereof.” From that order of the Municipal Court this appeal was taken.</p> <p>Let us concede the sentence imposed by the Court of Quarter Sessions was a regular valid judgment of that court. It would follow, of course, until opened or stricken off by the court that entered it, or until reversed or set aside by a court of superior jurisdiction, such judgment must be regarded as conclusive of everything adjudicated by it. What then was adjudicated? Doubtless that the defendant was a married man, a husband, with a wife in full life; that he had neglected or refused to maintain and support her, and that, under then existing conditions, the sum named was the proper amount he must contribute weekly to discharge his marital and legal duty. But owing to the nature of the proceeding the judgment did more than adjudicate the facts we have stated. It created a forward, continuous, weekly-recurring obligation to do a certain thing. As each weekly installment would be paid the demand of the judgment, for that limited period, would be satisfied. But with the advent of each new week it would be restored to as full life and vigor as if then newly entered.</p> <p>If the husband, notwithstanding the judgment defiantly refused to obey its commands, what was the remedy of the injured wife? She could begin a proceeding by petition averring the refusal of the husband to perform the sentence that had been imposed, and invoking the punitive or coercive power of the court to compel such performance. Manifestly such a proceeding would neither invite nor require any review or revision of the judgment previously entered or any reconsideration of any matter or thing adjudicated by it. On the contrary that judgment in all of its integrity would become the very basis and foundation stone on which her new proceeding would rest.</p> <p>Now when the statute declared the Municipal Court should have jurisdiction “in all proceedings brought against any husband......wherein it is charged...... he has neglected to maintain his wife,” it is difficult to see why the proceeding before us is not within both the letter and spirit of the legislative act. Clearly the exercise, by the Municipal Court, of the power invoked, involves no assault upon the constitutional rights and powers of the Court of Quarter Sessions of Philadelphia County, nor would it result in any impairment of the integrity of any judgment entered by that court. The case of Doyle v. Commonwealth, 107 Pa. 20, cannot be controlling of the question before us, and the argument drawn from what was there decided, is wholly beside the mark.</p> <p>The conclusion we reach is further strengthened by a consideration of the final section of the statute which declares that in the exercise of the jurisdiction, conferred, the new court “shall have all of the powers...... possessed by the Court of Quarter Sessions of the Peace in the County of Philadelphia.” The Municipal Court, by the proceeding we are reviewing, is but exercising the identical power that every one concedes theretofore resided in the Court of Quarter Sessions. In a word, the remedy of the injured wife remains precisely what it was. The obligation of the defaulting husband is unchanged. The coercive power of the court here invoked and applied is exactly that to which he has been subject every moment since the original order was made. The legislature has but changed the source whence that power emanates. We are unable to perceive how this appellant has been aggrieved by the order appealed from.</p> <p>But it is finally urged that the construction of the statute we adopt would stamp it as retrospective legislation. We have already indicated the reasons that lead us to a different conclusion. But even if in any sense the act could be fairly considered retrospective, it is clearly not so in that sense which makes such legislation objectionable. In Buchanan v. Corson, 51 Superior Ct. 558, we had occasion to review at length the decisions on that subject. We quote’again from the language.of Mr. Justice Agnew in Shonk v. Brown, 61 Pa. 320: “The true principle on which restrospective laws are supported was stated long ago by Duncan, J., in Underwood v. Lilly, 10 S. & R. 101, to wit: Where they impair no contract or disturb no vested right, but only vary remedies, cure defects in proceedings otherwise fair, which do not vary existing obligations contrary to their situation when entered into and when prosecuted.” Applying this rule, it is clear this appellant can create no barrier to impede the operation of the statute by the argument tending to show the legislation is retrospective.</p> <p>It may not be amiss to add a suggestion merely that may tend to promote good practice. When a proceeding like the one we have been considering, is begun in the Municipal Court, it should be by a petition reciting the record and judgment in the Quarter Sessions on which it rests. It should set forth the default complained of, the amount in arrears, etc. When the defendant is brought in he has his day in court. He might, by answer, deny the existence of such record, or traverse the allegations as to his default, or out of any other matter occurring since the entry of the original judgment that would amount to good cause for stating the command of the court. The new issue would thus be plainly defined, and the record in the Municipal Court made complete and self-sustaining.</p> <p>The Superior Court affirmed the order of the Municipal Court. Defendant appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 155, January T., 1915, by defendant, from judgment of Superior Court affirming judgment of Municipal Court in case of Commonwealth of Pennsylvania, ex rel., Samuel P. Rotan, District Attorney, v. Thomas Filer.</p>

<p>Appeal, No. 151, January T., 1915, by The American Bank, from decree of Superior Court, October T., 1914, No. 76, affirming decree of C. P. No. 3, Philadelphia Co., September T., 1912, dismissing exceptions to report of auditor, in case of Nellie Gallagher v. Bernard Stern.</p> <p>Appeal from Superior Court.</p> <p>Kephart, J., filed the following opinion:</p> <p>This appeal is from the confirmation in the court below of an auditor’s report distributing- funds in the hands of the sheriff arising from the sale of certain real estate. The facts necessary to decide the questions presented may be summarized as follows:</p> <p>Bernard Stern and his son, Jacob Stern, were the owners óf a certain piece of real estate situate on the corner of Fifth and Pine streets, Philadelphia, each owning an undivided one-half interest.</p> <p>Bernard Stern, on November 4, 1909, executed to the American Bank a mortgage covering the entire property, though he owned but a moiety of it.</p> <p>On June 26, 1911, the son’s interest was sold to Bernard Stern, investing him with the entire ownership.</p> <p>After this purchase, judgments were entered' against him, this appellee being one of the judgment creditors.</p> <p>On December 2, 1912, the entire property was sold by the sheriff, and the fund realized was not sufficient to pay all of the record indebtedness of Bernard Stern.</p> <p>The bank contends that inasmuch as its mortgage covered the entire property, the acquisition of the son’s undivided one-half interest inured to the benefit of the mortgagee, and placed that interest under and subject to the lien of the mortgage as of the date the title passed.</p> <p>The appellee claims that the proposition as contended for by the bank is only true as between the mortgagor and mortgagee, but it is not true as between the mortgagee and lien creditors who had entered their liens subsequent to the sale of the son’s interest. The sheriff’s sale of this property having been made on a later judgment, which had an undoubted lien against the entire property, the auditor proceeded to divide the sum realized in equal parts, allotting one part to those liens which affected the one-half interest as owned by Bernard Stern before he purchased his son’s interest.</p> <p>From this scheme of distribution, the American Bank’s mortgage, being on this list of liens, received but a part of the amount due. The other half of the sum realized from the sale was distributed by the auditor among the creditors whose liens were after the purchase of the son’s one-half interest. This money did not pay all these liens in full.</p> <p>When the mortgagor acquired the outstanding interest, this interest was included within the terms of the mortgage and was effective as between the mortgagor and mortgagee on the principle of estoppel. It was the duty of the mortgagee, as to other persons dealing with the mortgagor on the strength of this recently acquired interest, to give notice in some manner that he held the land under the lien of his mortgage. An intending purchaser or creditor in his examination of the record would find a deed from the son by the sheriff to Bernard Stern. 'His further examination of this title would be through the son and the son’s grantor. Bernard Stern, beyond this, was a stranger to this title.</p> <p>The record, from the time the appellant entered his lien up to the date the son’s title passed, would not reveal this preexisting mortgage made some time before in favor of the bank. In a search for liens against Bernard Stern affecting this interest,, the title examiner would stop at the time the son’s title passed.</p> <p>We need not prolong this discussion as the question is clearly decided in Calder (Marshalls) v. Chapman, 52 Pa. 359. In that case Calder was the owner of a 30-acre tract of land, with the exception of a certain part thereof called the factory lot. Calder mortgaged the whole tract, describing it by metes and bounds, including the factory lot, to which he did not have title.</p> <p>Subsequent to this mortgage, Calder acquired, by deed, this factory lot from Chapman. At a later date á judgment was recovered against Calder, under which the factory lot was sold by the sheriff to one Chapman. After-wards the mortgagees foreclosed on their mortgage, the sheriff selling to them the entire 30-acre tract of land, including the factory lot.</p> <p>Upon ejectment the court says (p. 361):</p> <p>“The question is, by these sales, who became the owner of the ‘factory lot’?......Now, in the present cáse, in searching for encumbrances or conveyances, the search' against Calder would begin with his title from Chapman, and the search beyond would be against Chapman and those through whom he claimed; and a search against Calder during the same period would be considered an litter absurdity. If the mortgage and the conveyance were ten years apart, the case would only be more glaring than the one presented to us......There is no hardship on the mortgagees; for an examination of the title when, they took the mortgage must have shown them Calder had no title to the ‘factory lot’; an innocent creditor should not suffer for their gross negligence.”</p> <p>See Uhler v. Hutchinson, 23 Pa. 110.</p> <p>' This reasoning applies to the present case. Had the bank examined this title, it would have discovered that Bernard Stern, when he made a mortgage, owned only á half interest. The fact that the question involves the interest of a tenant in common, instead of one owning the entire piece of ground, does not affect the principle involved. The intending creditor may be satisfied with that much of the interest, and safely assume that inasmuch as there were no encumbrances against it to affect his proposed lien, he had ample security for his claim.</p> <p>The facts involved in the second question may be summarized, in addition to those already noted, as follows:</p> <p>Preceding the lien of the Americán Bánk on this un-' divided one-half interest of Bernard Stern, there was a mortgage given to Mrs. Wetherill for $1,335. This mortgage was executed by Jacob Stern, the son, and Bernard Stern, while the title for the one-half interest remained in each, of them respectively. The Jacob Stern interest was sold by the sheriff to Bernard Stern</p> <p>We do not have before us the fund derived from that sale or the position of record of the lien creditors of Jacob Stern, and therefore we are unable; to say whether or not this sale divested the lien of the Wetherill mortgage as to Jacob Stern’s interest. The mortgage executed by Jacob Stern and Bernard Stern was presented to the auditor for full payment. Prom this we may conclude that the amount realized from the sale of Jacob Stern’s interest did not reach this mortgage if it was divested. The amount named in the mortgage covered the entire property. If one of the interests was sold, and the mortgage was to be divested as to that interest, or a payment was to be made on the mortgage, the mortgagee would be entitled to payment from the fund realized or paid on account of that interest.</p> <p>A mortgage executed by tenants in common is not an indebtedness separate to each tenant in common, divided as their ownerships of the land bear to the amount named in the mortgage, but as to the mortgagee, it covers all the land or any interest thereof that might be sold. The rights of the owners or others affected are worked out through the equity of subrogation.</p> <p>So, in the present case, Mrs. Wetherill was entitled to. be paid the full amount of her mortgage from the fund realised from the sale of the one-half interest of Bernard Stern, not by virtue of the purchase by Stern of the son’s interest later on but because her mortgage was executed by all the' tenants in common and covered the entire property or any interest thereof sold.</p> <p>If the rights of any persons are affected by reason of this distribution, and the mortgage is still a lien on the. one-half interest of Jacob Stern, they can be subrogated to whatever rights the mortgagee would have as against this one-half interest.</p> <p>As we said before there is nothing of record to show the state of this lien that would enable an auditor making distribution to give effect to this equity of subrogation. Regarding this particular claim, the court below did not err in allowing to Mrs. Wetherill the full amount of her mortgage, nor did it err in the scheme of distribution applied to this fund.</p> <p>The Langenheim mortgage, similar to the bank mortgage, was a lien on the one-half interest of Bernard Stern, but unfortunately for the appellant its lien preceded that of the bank, and therefore was entitled to be paid in full.</p> <p>The position taken that this mortgage should have been paid out of the funds realized from the sale of the Fifth and Pine streets property exclusively and the money realized from the sale of another property upon which it was a lien should be left for the bank, is without merit. The position of the liens of record did not entitle the bank to make this claim and as the Langenheim mortgage was a lien upon the Fifth and Pine streets property as well as the other property, Mrs. Wetherill, the next creditor to Langenheim, had a right to insist that the funds derived from the sale of the other properties be applied as the Langenheim mortgage called for.</p> <p>The sum realized from the sale of these other properties was less than one-half of the amount of the Langenheim mortgage.</p> <p>It is a new proposition that if A has a lien on two different pieces of ground, followed by B’s lien on one of them, followed by C’s lien on both these pieces of ground, that in a sale of a property where there was not sufficient money realized to pay off C’s.claim in full, that C could insist that A’s claim should be paid out of the entire piece of property on which B had his sole lien, thereby preventing B from participating in the distribution of the proceeds of sale. This is what the appellant asks in this assignment of error.</p> <p>The conclusions as thus reached make it unnecessary to pass upon the question as to whether the American Bank had authority to take a mortgage to secure future' advances, which advances were not obligatory on the bank. If this were decided affirmatively, and the amount of the bank’s mortgage would thereby be increased, it would not increase the amount of money that the bank would receive from the fund in the hands of the sheriff as it has been exhausted in the distribution here provided.</p> <p>We do not wish to be understood as affirming the position taken by the court below with relation to the power of the bank to accept the mortgage for future advances. A decision on that question was not necessary in this adjudication then before it.</p> <p>The Superior Court affirmed the decree of the Common Pleas Court dismissing exceptions to the report of the auditor. The American Bank appealed.</p> <p>Error assigned was the decree of the Superior Court.</p>

Appeal, No. 147, January T., 1914, by defendant, from judgment of C. P. Luzerne Co., May T., 1909, No. 219, on verdict for plaintiff, in case of Pennsylvania Central Brewing Company v. Lebigb Valley Coal Company. Trespass for the destruction of an artesian well; Before Garman, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $8,000, and judgment thereon. Defendant appealed.

Appeal, No. 179, January T., 1913, by defendant, from judgment of C. P. Luzerne Co., October T., 1904, No. 1162, for plaintiff, dismissing exceptions to report of referee, in case of Mary T. Clark, in part to the use of Mary C. Parrish v. The Lehigh and Wilkes-Barre Coal Company. Assumpsit for rent due under a coal lease. Before Strauss, J. Exceptions to the report of Joseph D. Coons, Esq., referee. The opinion of the Supreme Court states the facts.

<p>■Negligenee — Mines and mining — Personal injuries — Violation of .Anthracite Coal Mine Act of June 2, 1891, P. L. 176 — Right of parent to recover — Common law liability — Duties of mine owner— Assumption of rislc.</p> <p>1. Where the negligenee charged and proven is the disregard oi a statutory duty, the defense of assumption of risk is not open to defendant.</p> <p>2. The responsibility for the care of the passageways in a mine rests upon the owner, and cannot be shifted to the mine foreman.</p> <p>3. A parent cannot recover damages for personal injuries sustained by a minor child and not resulting in death, in consequence of a mine owner’s violation of the Anthracite Coal Mine Act of June 2, 1891, P. L..176, giving a right of action to “the party injured” for “direct damages.” The damage to the parent is indirect and the parent’s right of action must rest upon the common law.</p> <p>4. In order to overcome the defense of assumption of risk in an action under the common law, the employee must show affirmatively not only that he complained of the danger, and that the employer promised to correct it, but that, in continuing to work, he relied on that promise, otherwise he must be held to have assumed the risk.</p> <p>5. In an action by a minor, seventeen years of age, and his mother, to recover damages for injuries sustained by the minor, it appeared that the minor was employed as a coal runner in defendant’s anthracite coal mine, and was injured by being caught and squeezed between the side of a car and certain mine props which were negligently maintained too close to the tracks, in one of the gangways, in violation of the Act of June 2,1891, P. L. 176. There was evidence that plaintiff had complained of the condition to defendant’s superintendent, and that the latter had promised to remove the props. Plaintiff did not say, however, that he relied on the alleged promise in continuing his work. There was evidence that defendant knew of the alleged obstruction in the passageway. Held (1) that the minor had made out a case, entitling him to recover by reason of defendant’s violation of a statutory duty, and a verdict and judgment in his favor was sustained; (2) that by reason of the minor’s assumption of risk, there could be no recovery at common law by the mother, for the indirect damages sustained by her, and a verdict and judgment in her favor was reversed.</p>

<p>Appeal, No. 396, January T., 1914, by defendants, from decree of C. P. Luzerne Co., March T., 1912, No. 5, in equity, for plaintiffs, awarding an injunction and requiring defendants to pay plaintiffs’ claim from the proceeds of certain property held by defendants’ in case of John Curtis and Harry G. Pethick, trading and doing business as Curtis & Co., and Joseph G. Schuler, trading and doing business as Schuler Bros., v. Mary T. Olds, John A. Redington and the Miners Bank of Wilkes-Barre, Pa.</p> <p>Bill in equity by a creditor to compel payment of its claim from property in the hands of defendants. Before Strauss, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded the relief prayed for. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of fact and conclusions of law and the decree of the court.</p>

<p>Appeal, No. 167, January T., 1915, by defendant, from judgment of C. P. Luzerne Co., October T., 1912, No. 866,’ on verdict for plaintiff:, in case of Michael Tomczak v. Susquehanna Coal Company.</p> <p>Trespass to recover damages for personal injuries. Before Strauss, J.</p> <p>The opinion of the Supreme Court states the facts;</p> <p>Verdict for plaintiff for $3,861.99 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence, 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. 91, January T., 1915, by B. M. Espy, from decree of O. C. Luzerne Co., year 1875, No. 566, directing transfer of stock to a substituted trustee in Estate of Charles Streater, deceased.</p> <p>Petition for citation to compel respondents to show cause why they should not transfer certain bank stock to the trustee of a decedent’s estate. Before Freas, P. J.</p> <p>From the record it appeared that Edna Streater Pettebone presented her petition to the Orphans’ Court of Luzerne County, alleging that Charles Streater died at Wilkes-Barre in 1863, leaving a will by which he gave one-half his residuary estate, in case of certain lapses (which occurred) to his own heirs, of whom the petitioner was one; and that decedent’s grandson, Charles Streater, who was the last surviving cestui que trust, died in 1911, intestate and without issue, whereby the trust created by the will terminated; that the residuary estate consisted in part of ten shares of the capital stock of the Wyoming National Bank, of the par value of fifty dollars a share; that in 1885, S. B. Sturdevant was appointed trustee under the will of Charles Streater and continued to hold that office until his death in 1909; that the said ten shares of stock, held by the trust estate, were transferred to S. B. Sturdevant, trustee of the estate of Charles Streater, and a new certificate was issued by the bank in his name; that on January 29,1889, S. B. Sturdevant, trustee, sold and assigned the said ten shares of stock to B. M. Espy, and the old certificate was cancelled and a new one issued to the purchaser; that at the time of the sale and transfer the purchaser had notice that the stock was held by Sturdevant in trust under the will of Charles Streater; that the sale and assignment of the stock were illegal and ineffectual 'in law to divest the title of petitioner and her co-heirs to the stock, and the purchaser, Espy, took and has continued to hold the stock subject to the trusts created by the will of Charles Streater, that S. B. Sturdevant, the trustee, subsequently died insolvent (some twenty years afterwards, in 1909), without assets either personally or as trustee to satisfy the claims of the Charles Streater Estate, and that a retransfer of the stock was necessary to enable his legatees to enjoy the property devised to them.</p> <p>The petitioner prayed for an order on Espy requiring him to surrender his certificate for the ten shares of stock, or any equivalent certificate in his possession, for cancellation, in order that a certificate might be reissued in place thereof to the estate of Charles Streater, deceased.</p> <p>Espy demurred to the petition, which was then amended, whereupon Espy filed an answer, in which he admitted that Sturdevant, as trustee, had assigned the . stock, but denied that the petitioner was entitled to the relief prayed for.</p> <p>The petitioner joined issue and testimony was taken and, on hearing upon bill, answer and proofs, the court made the following decree:</p> <p>“And now, February 1st, 1915, upon due consideration, it is ordered, adjudged and decreed that certificate No. 196, for ten shares of the capital stock of the Wyoming National Bank of Wilkes-Barre, standing in the name of‘S. B. Sturdevant, trustee in the estate of Charles Streater,’ and transferred by said trustee, on January 29, 1889, to B. M. Espy, was the property and belonged to the estate of Charles Streater, deceased, and formed a part of the corpus of the trust created in the will of said decedent; that said trustee unlawfully assigned said certificate to B. M. Espy and converted the proceeds to his own use; that said B. M. Espy had knowledge of the fact that said shares belonged to the Estate of Charles Streater, deceased, and that said trustee was without lawful authority to convert them; that it is necessary to settle the estate of said decedent that said shares be returned to his estate; and the said B. M. Espy is therefore ordered forthwith to deliver to .H. G. Shupp, administrator of the Estate of S. B. Sturdevant, the deceased trustee, for purposes of final distribution, a certificate in the name of said administrator for ten shares of the capital stock of said bank, together with all dividends accrued thereon since the termination of the said trust, to wit: January 24, 1911; or if unable to deliver said certificate, then to pay to said administrator forthwith the value thereof, to wit; $3,000, together with legal interest thereon from January 24, 1911.”.</p> <p>The court awarded the citation and on final hearing directed respondents to transfer the stock to the substituted trustee of the Estate of Charles Streater, deceased. B. M. Espy appealed.</p> <p>Errors assigned were findings of fact and conclusions of law and the decree of the court, and the fourth assignment which was as follows:</p> <p>Fourth Assignment. The honorable court erred in his finding and conclusion in his final decree which reads as follows:</p> <p>“That said trustee was without lawful authority to convert them.”</p>

<p>Appeal, No. 158, January T., 1915, by defendants, from judgment of C. P. Luzerne Co., October T., 1907, No; 1047, on verdict for plaintiffs, in case of Henrietta R. F. Baker, assigned to and now to the use of D. L. Rhone, trustee of W. D. Loomis, John A. Opp, and John A. Schmitt, and W. D. Lopmis, John A. Opp, Yiktoria Schmitt, executrix of the last will and testament of John A. Schmitt, deceased, v. The Keystone Coal Company, a corporation, defendant, Viktoria Schmitt, The Traders Coal Company, a corporation, and The Hillside Coal & Iron Company, Terre-tenants.</p> <p>.</p> <p>Scire facias sur mortgage. Before Cummings, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiffs for $14,640, and judgment thereon. Defendants appealed.</p> <p>Errors assigned, among others, were in directing a verdict for plaintiffs.</p>

<p>Equity — Equity jurisdiction — Water companies — Duty to furnish pure water — Water rents — Restraint of collection.</p> <p>1. Where a Water company has been incorporated under the Act of April 29, 1874, P. L. 73, its duty is at all times to furnish pure water within the district covered by its charter and jurisdiction in equity is conferred upon the Courts of Common Pleas to enforce performance of this duly at the complaint of any citizen.</p> <p>2. It is inequitable that a corporation chartered and bound to furnish pure water to the public should be allowed to collect the price of a supply of good water from those to whom it delivers an article that cannot be used, and where for a period of time water unfit for consumption was furnished equity will restrain the collection of water rates or the enforcement of penalties for thiá period, notwithstanding the defects in the water supply may have been corrected prior to final decree.</p> <p>Mr. Justice Elkin dissents.</p>

<p>Commonwealth of Pennsylvania, ex rel., Thomas E. Stanton, v. John Francies, Warden of the Western Penitentiary of Pennsylvania, No. 185, Miscellaneous Docket, Habeas Corpus, Original jurisdiction.</p> <p>The facts appear by the opinion of the Supreme Court.</p>

Appeal, No. 220, January T., .1911, by Francis French, from decree of O. C. Clearfield Co., dismissing exceptions to report of auditor in Estate of O. L. Schoonover, deceased. Exceptions to report of Frank G. Harris, Auditor. Before Copeland, P. J., specially presiding. The opinion of the Supreme. Court states the facts. The court refused to surcharge the executor for commission claimed by-him. Francis French appealed. Error assigned was the decree of the court.

<p>Practice, C. P. — Attachment execution — Garnishee—Debt accruing after service of writ — Capital stock — Judgment—Irregular judgment.</p> <p>1. A writ of attachment execution duly served upon a garnishee will bind debts owing by the garnishee to the defendant, accruing after the service of the writ and prior to the filing of answers to interrogatories.</p> <p>2. Where a garnishee in its answers to interrogatories admits that the defendant held a certain number of shares of stock in the garnishee company, which shares were then outstanding, the process issued arrests the stock in the hands of the garnishee to await levy and execution by the plaintiff, but a money judgment may not be entered for the value of the stock. The purpose of such process is only to clear the way for a subsequent fi. fa., by settling and determining in advance, whether the judgment debtor is in fact the real owner of the stock, or what his interest therein is, and whether the stock is subject to a charge of lien upon the title.</p> <p>3. A writ of attachment issued out of a Common Pleas Court against defendants, summoned a coal and mineral company as garnishee. In its answers to interrogatories, the garnishee admitted that the defendant was the holder of certain shares of stock of the company and that certificates for such shares had been issued in his name and were still outstanding, and by supplemental answer admitted that since the service of the writ the garnishee had paid in cash to the judgment debtor $910.31, to reimburse him for money advanced at different times subséquent to the attachment, as an official of the company, to pay current expenses. After trial the attachment was sustained as to the cash paid by the garnishee, and as to 650 shares of the garnishee’s stock, which was found to be of the value of $2 a share, and judgment was entered against the garnishee for $910.31, and for the value of the stock $1,210. Held, the judgment was correct as to $910.31, but erroneous as to $1,210, and was modified so as to give the plaintiff a money judgment of $910.31, with the right to proceed to sell such of the shares of stock as might be necessary to satisfy his judgment against defendant.</p>

<p>Criminal law — Murder—Accessory—Guilt of principal — Proof— Record of conviction — Words and phrases — “Conviction”—Evidence — Proximity to crime — Threats.</p> <p>1. There can. be no conviction of one charged as an accessory except as the guilt of the principal be first established.</p> <p>2. In the separate trial of one charged as an accessory, the same burden rests on the Commonwealth to establish the guilt of the principal as would have rested upon it were the principal himself being tried, and the same measure of proof is required in one case as in the other.</p> <p>3. The record of the conviction of the principal while not conclusive with respect to the fact of the principal’s guilt, is allowed exceptional weight as matter of evidence in that standing alone and unexplained it is sufficient to warrant the conclusion in support of which it was introduced.</p> <p>4. Technical legal terms are to be taken in the absence of countervailing intent in their established common law significance, and this rule applies with especial force where an ancient and established rule of law is under consideration.</p> <p>5. The word “conviction” has a popular as well as technical meaning. As popularly used it implies nothing more than a finding of guilty by a jury, but as technically understood it means the ascertainment of the guilt of the accused and judgment thereon by the court, implying not only a verdict but judgment or sentence thereon.</p> <p>6. “Record of Conviction” is a common law term and as employed in the rule of law relating to proof of the guilt of a principal, upon the trial of an accessory it must be given its legal and technical meaning, and in order to be admissible the record must show not only the verdict of the jury hut the judgment or sentence of the court.</p> <p>7. On the trial of an indictment charging defendant as an accessory to a murder, the record of the conviction of the principal showing simply that a verdict of guilty was rendered but that no judgment was entered thereon, is not definitive, and its admission is reversible error.</p> <p>8. In such case evidence was properly admitted to show that at the late hour of night, when the murder was committed defendant was found but a few feet from the place of the crime.</p> <p>9. On the trial of one indicted as accessory to a murder, threats and all declarations of personal hostility made by the accused are admissible in evidence against him as showing malice intending to show the criminal intent charged.</p>

<p>Appeal, No. 5, May T., 1915, by Franklin Spencer Edmonds and Charles I. Cronin, from decree of C. P. Dauphin Co., Commonwealth Docket, 1911, No. 219, dismissing exceptions to report of auditors in case of Commonwealth, ex rel. John C. Bell, Attorney General, v. Tradesmen’s Trust Company.</p> <p>Petition by the Commonwealth at the relation of the attorney general to declare a trust company insolvent and for the appointment of a receiver.</p> <p>Exceptions to report of Henry S. Borneman, Esq., and Eugene Snyder, Esq., Auditors. Before McCarrell, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. Franklin Spencer Edmonds and Charles I. Cronin appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

Appeal, No. 3, May T., 1915, by George H. Sherwood, substituted trustee for the creditors of John J. O’Rourke, from decree of O. P. Dauphin Co:, Commonwealth Docket, 1911, No. 219, dismissing exceptions to report of auditors, in case of Commonwealth of Pennsylvania, ex. relatione John C. Bell, Attorney General, v. Tradesmen’s Trust Company.

<p>Appeal, No. 6, May T., 1915, by the Hill School, from decree of C. P. Dauphin Co., Commonwealth Docket, 1911, No. 219, dismissing exceptions to report of auditors, in case of Commonwealth, ex rel. John C. Bell, Attorney General, v. Tradesmen’s Trust Company.</p> <p>Petition by the Commonwealth at the relation of the attorney general to declare a trust company insolvent and for the appointment of a receiver.</p> <p>Exceptions to report of Henry S. Borneman, Esq., and Eugene Snyder, Esq., auditors. Before McCarrell, J.</p> <p>The facts appear in Commonwealth, ex rel., v. Tradesmen’s Trust Company (No. 2), above, and in the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. The Hill School appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Public officers — County records — Common Pleas Courts — Power to provide for proper keeping of records — County controller — Discretion — Duty to pay bills — Act of May 26, 1891, P. L. 129 — Mandamus.</p> <p>1. The discretion vested in a county controller is not an arbitrary but a legal one, and when he refuses to act, it must be made to appear that the case was within his discretion, and that it was exercised in obedience to law. On this subject the courts are the final authority, and their jurisdiction cannot be ousted by simply asserting the matter was within the controller’s discretion.</p> <p>2. Under the Act of May 26, 1891, P. L. 129, the Courts of Common Pleas have the sole power of changing or altering the mode of preparing and' keeping indexes in the several offices of record in each.county, and, whenever it shall appear advisable, to direct new indexes to be prepared and made, and it then becomes the duty of the proper officers of the county to cause the indexes to be so prepared and made by some competent person, appointed for the purpose, the cost to be paid out of the county funds.</p> <p>3. The Court of Common Pleas of Northumberland County, under the provisions of the Act of May 26, 1891, P. L. 129, entered a degree directing that a change in the method of indexing records should be made in the office of the recorder of deeds of that county, and that a new system should be prepared, at the expense of the county, authorizing the recorder to make a contract with a suitable person to do the work at a price not to exceed a certain sum and directing the commissioners of the county to carry the same into effect, by drawing warrants on the treasurer for payment for the work. The recorder of deeds appointed plaintiff, who was his son, to do the work, and entered into a contract with him. at the maximum rate provided. Plaintiff entered upon the work and subsequently presented the certificate of the recorder to the controller, showing the performance of the work, entitling him to a certain payment. The controller refused to approve the payment, and a mandamus was issued to compel him to do so, which he did “under protest.” Subsequently, plaintiff presented a second certificate, showing a further payment due him, which defendant, the county controller, likewise refused to approve, stating that he had inquired of plaintiff as to the number of days spent in the work, the names of his employees, and the compensation paid them, all of which plaintiff had refused to answer, and that, after consideration, he was of the opinion that the bill exceeded the cost of performing the work. Plaintiff thereupon filed a petition for a mandamus, to compel such approval. Held, the lower court did not err in awarding the relief prayed for.</p>

Appeal, No. 190, January T., 1915, by defendant, from judgment of O. P. Northumberland Co., December T., 1914, No. 337%, awarding mandamus, in case of Woods M. Nicely v. Aaron Raker, Controller of Northumberland County. Petition for mandamus. Demurrer to return to writ of alternative mandamus. Before Cummings, P. J. The opinion of the Supreme Court states the facts. The court sustained the demurrer and entered judgment for plaintiff. Defendant appealed.

<p>Appeal, No. 96, Jan. T., 1915, by plaintiff, from decree of C. P. No. 1, Philadelphia Co., March T., 1914, No. 1884, in Equity, dismissing bill in equity for the cancellation of a bond, in case of Harry C. Dunlap v. Franklin Spiese, Helen M. Spiese, Robert M. Hilands, Rhoads Shee and Mutual Trust Company, a corporation.</p> <p>Bill in equity for cancellation of a bond. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court found that the bondsman was not liable, but subsequently upon the introduction of certain papers which could not be found at the hearing, dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, inter alia, was the decree of the court.</p>

<p>Appeal, No. 328, Jan. T., 1914, by plaintiff, from order of C. P. No. 1, Philadelphia Co., March T., 1914, No. 1805, striking off judgment in case of Franklin Spiese v. Rhoads Shee and Harry C. Dunlap and Henry C. Dunlap.</p> <p>Rule to strike off a judgment entered by confession upon a bond. Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered an order striking off the judgment. Plaintiff appealed.</p> <p>Error assigned was the order striking off the judgment.</p>

<p>Appeal, No. 193, Jan. T., 1914, by H. G. Leistikow and John O. McClintock, Executors of George D. Trawin, deceased, and other creditors of Messenger Printing Co., from decree of C. P. Crawford Co., Nov. T., 1910, No. 2, in Equity, in case of Fred G. Prenatt v. The Messenger Printing Company.</p> <p>Petition by creditors to have certain fund added to the funds in the hands of the receiver for distribution. Before Prather, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court entered a decree dismissing the petition. H. G. Leistikow and John O. McClintock, executors, appealed.</p> <p>Error assigned, inter alia, was in dismissing the petition.</p>

<p>Appeal, No. 315, Jan. T., 1914, by The American Type Founders Company and The New First National Bank of Meadville, Pa., Creditors of Messenger Printing Company, from decree of C. P. Cráwford Co., Nov. T., 1910, No. 2, in Equity, sustaining exceptions to report of auditor in case of Fred Gr. Prenatt v. The Messenger Printing Company.</p> <p>Bill in equity for the appointment of a receiver.</p> <p>Exceptions to the report of J. P. Colter, Esq., auditor. Before Prather, P. J.</p> <p>The facts appear by the opinion of the Supreme Court and in Prenatt v. Messenger Printing Co. (No. 1), 250 Pa. 402.</p> <p>The court sustained certain exceptions to. the report of the auditor and decreed that the claim of the Mergen.thaler Linotype Company and the Crawford County Trust Company should be paid in full for certain rentals accruing during the receivership. The American Type Founders Company and The New First National Bank of Méadville, Pa., creditors of defendant company, appealed.</p> <p>Errors assigned were in sustaining the exceptions to the report of the auditor.</p>

<p>Appeal, No. 182, January T., ■1915, by defendant, from judgment of C. P. Erie Co., September T., 1914, No. 4, on verdict for plaintiff in case of Jay Karlinsey v. H. F. Watson Company.</p> <p>Trespass to recover damages for personal injuries. Before Benson, J.</p> <p>Tbe opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,918 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, and in refusing defendant’s motion for judgment non obstante veredicto and for a new trial.</p>

<p>Arbitration — Choosing arbitrators — Prothonotary — Delegation of power — Clerks.</p> <p>A prothonotary of a Court of Common Pleas, has the power to delegate to a clerk in his office who is not a regularly appointed' deputy the right to exercise his statutory functions in choosing arbitrators in compulsory arbitration proceedings.</p>

<p>Appeal, No. 307, January T., 1914, by plaintiff, from judgment of C. P. Potter Co., March T., 1910, No. 190, on verdict for defendants in case of J. M. DeVall v. Eugenia L. Clover and A. P. Clover.</p> <p>Ejectment to recover land in Wharton Township. Before Ormerod, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for defendants and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were various instructions to the jury.</p>

<p>Foreign attachment — Practice, G. P. — Deceased defendant — Foreign executor — Quashing writ.</p> <p>1. The writ of foreign attachment may issue only against a living person.</p> <p>2. A writ of foreign attachment was issued in Pennsylvania, certain real property being seized which had belonged to the debt- or, who had died some time previously at her residence in Massachusetts; the decedent’s éxecutor in Massachusetts was named as defendant. On his motion, the court quashed the writ. Held, no error.</p>

<p>Mines and mining — Contracts—Leases—Construction—Bent— Accord and satisfaction — Estoppel.</p> <p>1. An interpretation will not be given to one part of a contract which will annul another part of it or produce absurd results.</p> <p>2. When the terms of a contract are doubtful or capable of two different interpretations, the meaning put on the instrument by the parties themselves may be shown and will be enforced by the courts; but where the contract is not ambiguous or uncertain in its terms and the intention of the parties is not doubtful, the construction acted upon by the parties is not controlling and will not he enforced.</p> <p>3. In the lease of a mining property, the lessees covenanted: (1) “to pay to the party of the first part, as rent for the demised premises,” a graduated rent, according to the size and character of the coal “mined and carried away or shipped from the demised premises” during the years from 1884 to 1890, then increasing certain amounts each year to the end of the term; (2) “to pay a rent or right of way of five cents per ton on all coal mined from other adjoining lands and carried through the said demised premises, during said lease, to be paid monthly, at the same time and in the same manner as hereinafter provided for the payment of rents on coal mined from the demised premises”; (3) “to pay the rents in cash at the office of the party of the first part......on the 15th day of each and every month during the term hereby created, for all coal mined and shipped from the demised premises during the preceding month,” and, finally, “to mine and ship from the demised premises” after January 1, 1888, at least 8,333 tons every month, ending with the last day of each month until January 1, 1890,...... “and if in any one month as aforesaid it shall not have mined and shipped, from the said demised premises at least 8,333 tons of coal, then to pay to the party of the first part on the 15th day of the next succeeding month, in cash, as a liquidated rent for the said premises during said month such a sum of money as, when added to the rents accrued during said month shall be equal to the sum of $2,917,” with a similar provision for the monthly minimum royalty of $3,500 from January 1, 1890, to the end of the term. If the lessee should pay in any one month a rental over and above what was due for such month, if calculated upon the number of tons shipped, then the lessee in any succeeding month (if it should have paid rent on at least 8,333 tons in said succeeding month) might deduct the sum paid in any previous month over and above the amount of rent, if calculated upon actual tonnage, from the rent due in such succeeding month from the surplus amount of coal mined in said succeeding month over and above 8,333 tons. In an action for the difference between the total of the amounts paid by the lessee, during the term of the lease and the total claimed to be due under the provisions thereof, it appeared that the lessor had represented certain beneficiaries as administrator of their father’s estate, and with their consent, under the terms of the will, had power to execute the lease. In the instrument in which they authorized the execution of the lease there appeared a recital that the lessees proposed to pay a certain rental per ton for the coal mined and removed from the demised premises, and “a right of way of five cents per ton on all coal mined from other lands and carried through the improvements agreed to be erected.” The controlling question was whether the minimum monthly royalty or liquidated rental required to be paid under the lease included the right of way charge on coal mined on adjoining lands and carried through the demised premises, or whether the right of way charge was to be paid in addition to the minimum royalty required by the lease. Held, that under the terms of the lease the defendant was required to pay a right of way charge in addition to the minimum monthly royalty and that when it failed to mine 8,333 tons in any month it was required to pay the difference between the royalties on the coal actually mined and the minimum, and also to pay the right of way charge of five cents per ton on all coal carried through the leased premises from the adjoining tracts.</p> <p>4. An estoppel can be claimed only by one who has acted in ignorance of the true state of facts, and who was without suitable means of informing himself of their existence.</p> <p>5. In such case the use-plaintiffs were not estopped from maintaining, such action by reason of the fact that the vouchers received by the administrator and returned to the company stated that the sum remitted to him was in payment of “rent on coal mined” or “of the minimum rental on coal mined” and the amount was the minimum sum payable for the month, and was “received in full for the above account,” where it appeared that the vouchers and receipts were prepared by and signed at the request of the defendant company, which had full knowledge of their contents and the purpose for which the money was paid and received, and the beneficiaries had no knowledge that would be necessary to an understanding of the situation so that they could have made a demand at the time when the amounts now claimed were respectively due.</p> <p>6. In such case the amount received by the plaintiff as administrator was a part of the larger sum due under the terms of the lease and was not an accord and satisfaction, and the statements or memoranda, if considered as accounts stated, were not conclusive so as to bar the present action.</p>

<p>Negligence — Master and servant — Telephone company — Lineman injured by fall of pole — Inspection—Evidence—Assumption of rish.</p> <p>1. While an employee is deemed to assume such risks as are ordinarily and reasonably connected with his employment and is presumed to have notice of those dangers which are obvious, yet the employer is charged with the duty of maintaining and keeping in reasonably safe repair the instrumentalities or appliances used in the operation of the business so as not to expose the employee to dangers not ordinarily or reasonably incident to the employment.</p> <p>2. In an action to recover damages for personal injuries, it appeared that plaintiff, a lineman in the employ of defendant telephone company, was injured by the falling of a pole while he was engaged in removing wires from the cross arms located near the top. The work was in charge of a foreman of defendant company under whom plaintiff was working and from whom he received orders. The testimony showed that the pole was decayed at the base and had been in use for a period of ten or fifteen years. There was no evidence when, if ever, the pole had been inspected and no evidence to show a customary method of inspecting such poles or that defendant company had any rule relating to their inspection or had made any effort to maintain its poles in proper repair. Plaintiff had no knowledge of the defective condition of the pole and there was nothing in its appearance to put him on notice of danger. Defendant offered no evidence and the trial judge refused a motion for a nonsuit and submitted the case to the jury, who returned a verdict in favor of the plaintiff. Held, no error.</p> <p>3. The proximate cause of the injury, under the above recited facts, was not .the cutting of the wires by a fellow workman but the breaking of the pole, which resulted from its decayed and unsafe condition.</p>

<p>Negligence — Infants—Jumping on moving wagon — Contributory negligence — Case for jury.</p> <p>In an action to recover damages for personal injuries sustained by a child thirteen years of age in consequence of his having jumped or fallen from defendant’s moving wagon, it appeared that he was endeavoring to steal a ride and there was evidence that the driver struck him, or struck at him, with his whip to make him get off, and that in so doing the child fell and-was injured. Held, the question of defendant’s negligence and plaintiff’s contributory negligence were for the jury, and a directed verdict for defendant was reversed.</p>

<p>Negligence — Master and servant — Colee manufacturing company —Exposed cog-wheels — Minor employee — Court and jury — Accident unwitnessed — Evidence—Trial—Indications by witness — Case for jury.</p> <p>1. In an action against an employer to recover damages for death of an employee, a prima facie case is established by proving that decedent was killed while engaged at his customary work by coming in contact with cog-wheels which defendant had failed to guard, and in such ease nothing but the contributory negligence of the decedent can relieve the defendant of liability.</p> <p>2. Where no one actually witnessed the happening of such accident, the plaintiff is entitled to the presumption that the decedent exercised ordinary care.</p> <p>3. In an action against a coke manufacturing company to recover damages for death of plaintiff’s decedent, the case is for the jury and a verdict for the plaintiff will be sustained where it appears that at the time of the accident the decedent was working at a conveyor used for the purpose of carrying coke ashes up an incline, that in performing his work the deceased Ttfas obliged to stand upon a narrow and insecure plank at an elevation above the ground, or in another equally unsafe position, that the belt of the conveyor was propelled by a revolving drum and at times the belt slipped in such manner that it would cease to move; that at the time of the accident the belt was slipping and the decedent was using a preparation customarily applied while the belt was running, and while performing his usual duties in close proximity to a series of cog-wheels, which were neither fenced nor guarded, his hand was caught and he was drawn into the cogs and sustained injuries from which his death resulted.</p> <p>4. Where on the trial of such ease several witnesses described the lay of the decedent’s body when it was found entangled in the cogs, and the position of his hand and arm and gave physical illustrations, hut there was nothing on the record to show what these illustrations were, the assumption is that they went to support the verdict.</p> <p>Damages — Death of minor — Measure of damages.</p> <p>5. In an action against an employer to recover damages for death of plaintiff’s minor son, defendant cannot object to the sufficiency of the record produced by the plaintiff to show how much it would have cost to maintain decedent between the time of his death and the date of his majority, where it appeared that he had an earning capacity of $1.75 per day, that decedent lived at home with the plaintiff, his mother, who kept a boarding house, and gave her all his earnings, and the jury had an opportunity of observing the plaintiff when upon the stand and sufficient details to enable them to judge as to her and the decedent’s position in life, although there was no attempt to produce exact evidence concerning the precise cost of maintaining the decedent during the balance of his minority, particularly where defendants were apparently satisfied .with the sufficiency of the proof in this respect, and when plaintiff endeavored to introduce further testimony upon this branch of the case, it was barred on the defendant’s objection, and subsequently no demurrer to the evidence was made and no special instructions in relation to this subject were requested by the defendant.</p>

<p>negligence — Railroads—Team—Grade crossing accident — Case for jury. ■ ...</p> <p>In an action against a railroad company to recover damages for personal injuries, the case is for the jury and a verdict and judgment for plaintiff will be sustained, where it appears that at the place of the accident defendant maintained a railroad of three tracks, the first two, as the plaintiff approached, being used as sidings, and the third, upon which he was hurt, being the main track; that he stopped his team when near the first track and approached the railroad afoot for the purpose of looking and listening; that a freight train standing on the first track prevented the plaintiff from, making an observation until he had passed beyond it; that he went to the third, or main, track, looked up and down and saw that it was clear; that he then retraced his steps, stopped and exchanged words, as to the likelihood of their train moving, with some railroad men sitting on the front of the standing locomotive; that he then walked to his T/agon, mounted it and proceeded to drive across the tracks and was struck on the outer rail of the main track by a passenger train approaching at the rate of forty miles an hour and without giving warning by bell or otherwise of its approach; and that the crossing in question was generally used by the people of the community and was marked as a crossing by a regular sign.</p>

Appeal, No. 329, Jan. T., 1914, by defendant, from judgment of C. P. Northumberland Co., Sept. T., 1912, No. 374, on verdict for plaintiff in case of D. E. Shade v. Frank P. Llewellyn. Assumpsit for price of mining stock alleged to have been sold by plaintiff to defendant.

Appeal, No. 74, Jan. T., 1915, by defendant, from order of C. P. Northumberland Co., Sept. T., 1913, No.424, discharging rule to open judgment in case of American Malting Company, a corporation, v. Anthracite Brewing Company, a corporation. Assumpsit for the contract price of malt. Rule to open a judgment entered for want of an affidavit of defense. Before Cummings, P. J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 123, Jan. T., 1915, by Commonwealth, from judgment of C. P. Northumberland' Co., Sept. T., 1914, No. 579%, for defendant, on case stated, in case of Commonwealth of Pennsylvania v. A. J. Baum, Committee of Jane Marshall, a Lunatic.</p> <p>Case stated to determine the liability of the committee of a'lunatic to reimburse the Commonwealth for funds expended for a lunatic’s support. Before Moser, J.</p> <p>The case stated was as follows:</p> <p>And now, September 14, 1914, it is hereby agreed by and between the parties to the above suit that the following case stated be presented for the opinion of the court in the nature of a special verdict:</p> <p>Jane Marshall, a soldier’s widow of the Borough of Sunbury, County of Northumberland, and State of Pennsylvania, became insane some time during the year 1903. Through an order of relief she was placed upon the poor district of the Borough of Sunbury, Pa., and on November 11, 1903, she was confined in the State hospital for the insane at Danville, Pa., by the overseers of the poor of the said poor district, where she has continued to the present time.</p> <p>On March 7, 1904, A. J. Baum was appointed by this court, committee of the estate of the said lunatic, which consisted solely of a widow’s pension of $12.00 per month, from which pension the committee has refunded the amount paid by the overseers for her maintenance at the said hospital, viz: $91.25 per annum, the Commonwealth having paid the balance of the maintenance at the said hospital, viz: $2.00 per week to May 1, 1907, and from thence to the present time, $2.50 per week, amounting in all to $1,232.39 to September 1, 1914.</p> <p>The account of the committee filed March 13, 1913, contains a balance due the estate of the lunatic of $258.32, since which time, said committee has received $216.00, and has disbursed $209.49, leaving a present balance of $264.83.</p> <p>The Commonwealth now seeks to collect its claim of $1,232.29, and asks that the balance in the hands of the committee, viz: $258.32 be applied thereto. The committee objects to paying to the Commonwealth the balance in his hands upon the ground that his ward has the right and does claim the benefit of the exemption of $300 as provided under the Act of Assembly of April 9, 1849, P. L. 533, which exemption he desires to retain for contingencies and burial of his ward.</p> <p>If the court be of opinion that the said Jane Marshall is entitled to the benefit of the exemption of $300, then judgment for the defendant; but if not, then judgment for the Commonwealth of Pennsylvania; either side reserves the right to sue out a writ of error therein.</p> <p>The court ordered that judgment be entered for defendant on the case stated. The Commonwealth appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Mechanics’ liens — Constitutional law — Act of June It, 1901, P. L. 1(81, Section % — Extension of time for issuing sci. fa. on lien— Mew and old structures — Judgment for want of affidavit of defense.</p> <p>1. A court will not heed objections to the constitutionality of an act unless the complainant is affected by the particular feature alleged to be in conflict with the Constitution.</p> <p>2. An owner has the right to have a claim, defective on its face, stricken off on motion and when a rule to strike off such claim is taken by an owner, depositions cannot be used by either side to show that the claim, though insufficient on its face, is in point of fact, valid or invalid.</p> <p>3. Plaintiff filed a mechanic’s lien “for the unpaid price or value of materials furnished and for work and labor done in and about the fitting up and equipment with engines, machinery, etc., of a certain building.” The defendant subsequently entered into a written contract with the plaintiff stipulating that the time for issuing a sci. fa. “should be extended for the period of three years” from the date of the claim “as allowed by law.” Shortly before the expiration of the three-year period defendant moved to strike off the claim and quash the sci. fa., and also to strike from the lien the charges for certain service and expense in connection with the installation of the machinery. Held, the lower court did not err in discharging the rules and entering judgment for plaintiff for want of an affidavit of defense.</p> <p>4. In such case the court properly found that the building in which the machinery was installed and in connection with which the services for installing were incurred was a new structure, where the plaintiff’s answer to the rule to strike off the claim, to which no replication or denial of any kind was entered, averred “that the......engine......was not installed in an old building as is alleged in said petition but on the contrary such engine was furnished and installed in a new building, which building was erected at the same time and coincident with the furnishing, erection and installation of said engine.”</p> <p>5. In such case by seeking and securing the extension of three years, the defendant waived the benefit of the alleged defects which they subsequently relied upon to strike down the claim, and were estopped to assert anything to the contrary. Such an-. agreement, postponing the scire facias until a date too late for the filing of a new claim, was an implied admission that the lien was sufficiently valid upon its face to sustain judgment.</p> <p>6. Where in such case after leave granted, the plaintiff placed on record in its answer to the petition to strike off the lien averments of details the absence of which from the claim, the defendants were objecting to, but the court did not deem it necessary to formally amend the claim and this was not done, the facts were* sufficiently brought to the notice of the defendant.</p>

Appeal, No. 184, January T., 1915, by plaintiff, from order of C. P. Fayette Co., March T., 1913, No. 423, refusing to take off nonsuit, in case of Frank-Curtis v. Pittsburgh, McKeesport & Youghiogheny Railroad Company. Trespass to recover damages for injuries to plaintiff’s property by reason of the relocation and elevation of a road adjacent thereto. Before Umbel, P. J. The facts appear by the opinion of the Supreme Court.

<p>Appeal, No. 199, January T., 1915, by defendants, from judgment of C. P. Fayette Co.. December T'., 1914, No. 591, on verdict for plaintiff in case of Steward Henderson, Jr., William J. Noble and Charles C. Carter v. John I. Bishop, Caleb S. Ridgway,</p> <p>Clarence S. Bement 'and Henry R. Edmunds, Executors and Trustees of the Estate of Jacob E. Ridgway, de- ' ceased.</p> <p>Assumpsit on an agreement to convey mining rights under a tract of land. Before Van Swearingen, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $11,654.33 and judgment thereon. Defendants appealed.</p> <p>Error assigned, among others, was in refusing judgment for defendants n. o. v.</p>

Appeal, No. 160, Jan. T., 1915, by defendant, from judgment of C. P. Northumberland Co., December T., 1913, No. 316, on verdict for plaintiff in case of Thomas J. Fern v. The Pennsylvania Railroad Company. Trespass to recover damages for personal injuries. Before Cummings, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $4,734.50 and judgment thereon. Defendant appealed.

<p>Habeas corpus, orginal jurisdiction, Miscellaneous Docket Nos. 185 and 186, in cases of Commonwealth, ex rel., Thomas E. Stanton v. John Franeies, Warden of the Western Penitentiary of Pennsylvania, and Commonwealth of Pennsylvania, ex rel., Charles Wheeler v. John Franeies, Warden of the Western Penitentiary of Pennsylvania.</p> <p>Habeas corpus, original jurisdiction.</p> <p>The opinion of the Supreme Court states the facts.</p>

Appeal, No. 35, Oct. T., 1915, by Edwin O. Roenigk, guardian, from decree of O. C. Allegheny Co., April T., 1914, No. 180, dismissing exceptions to adjudication, in Estate of William Schenkel, a minor. Exceptions to adjudication. Before Trimble, J. The opinion of the Supreme Court states the facts. The court dismissed the exceptions. Edwin O. Roenigk appealed. Errors assigned were in dismissing the exceptions.

<p>Appeal, No. 162, January T., 1915, by plaintiffs, from decree of C. P. No. 5, Philadelphia Co., March T., 1914, No. 1074, in equity, dismissing bill in equity to require defendants to transfer stock, in case of John E. Wood and Oliver G. Wood v. J. Rodman Paul and H. Alan Dawson, executors of the last will and .testament of William O. Wood, deceased, and Gretchen Wood, widow of William O. Wood, deceased.</p> <p>Bill in equity to require defendants to transfer certain shares of stock to plaintiffs. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the bill. Plaintiffs appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of fact and law and the decree of the court.</p>

<p>Taxation — Valuation- — -Appeals—Practice, G. P. — Evidence— Proper method of fixing value — Reversal-.</p> <p>1. Where appeals are taken to the Court of Common Pleas from decisions of county commissioners fixing the valuations of tracts of land for purposes of taxation, the proceedings are de novo and the facts must be found and the law applied just the same as if the litigation was between private parties. The judge who hears the case, sitting as a chancellor, is clothed with the powers of a court to hear and determine the issues involved, subject to the rules of practice and of law applicable to other hearings of an analogous character.</p> <p>2. The method of procedure in such case is for the taxing authorities to make out a prima facia case by the introduction in evidence of the assessment of record in the office of the county commissioners as approved by the board of revision, together with such other hooks and data as may he on file relating to the valuation of the tracts of land in question. If the evidence shows that the hoard of revision acted arbitrarily, or without sufficient reliable information or evidence, or without a substantial basis to justify their decision, the prima facia case will be rebutted and should be go treated' by the chancellor, whose duty it is to determine the questions in controversy in the light of the evidence offered and admitted at the hearing.</p> <p>3. The weight of the evidence should be decisive with the court and the burden is always on the litigants to introduce the evidence relied on to support their respective contentions.</p> <p>4. It is not for the court to fix the valuation of a tract of land at what he, as an individual might think it worth, and where from an inspection of the record it appeared that the court had fixed valuations without regard to the evidence submitted, the judgment was reversed, and the case sent hack for a valuation based upon the evidence.</p>

<p>Appeal, No. 143, January T., 1915, by the New York and Middle Coal Field Railroad and Coal Company, from decree of C. P. Northumberland Co., September T., 1913, No. 243, fixing the valuation of coal lands, in case of the New York and Middle Coal Field Railroad and Coal Company v. County Commissioners of Northumberland County.</p> <p>Appeals from decisions of the county commissioners sitting as a board of revision of taxes. Before Cummings, P. J., and Moser, J.</p> <p>The facts appear in The Lehigh Valley Coal Company v. Northumberland County Commissioners, 250 Pa. 515.</p> <p>The court made certain changes in the valuation of the board of revision. The New York and Middle Coal Field Railroad and Coal Company appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Common carriers — Express companies — Shipping livestock— Negligence — Proof—Presumption—Evidence—Opinion evidence— Contracts limiting liability — Failure to declare value — Schedule of rates — Failure to file — Presumptive notice.</p> <p>1. In suits against transportation companies for injuries to animate property, the injury may be of such nature as to indicate violent or careless handling in course of transportation, and where the facts are sufficient to warrant such an inference, the question may be submitted to the jury.</p> <p>2. In an action to recover damages for injuries to a colt shipped by defendant company for plaintiff, the question of defendant’s negligence was properly submitted to the jury where it appeared that the colt was kept over night by defendant company in a roughly constructed stall in the basement of a barn, which several witnesses testified was an unsafe and improper place, and it appeared by the testimony of one witness that there was a hole in the floor, into which the colt might have stepped, and when found the next morning the colt’s hip was smashed and broken.</p> <p>3. In .such case it was proper for the court to admit an expression of opinion by witnesses as to the character of the place where the colt was kept, where it appeared that they had seen and were able to describe its condition.</p> <p>4. In such case where the shipment constituted interstate commerce, the carrier could have limited its liability, but it cannot be held to have done so where the value of the article shipped was neither asked nor declared, merely because the schedule of rates filed with the interstate commerce commission based the rate of carriage upon the assumed value of the articles shipped, and the rate paid was based upon the minimum valuation, where it did not appear that the schedule of rates was published at the point off shipment; the filing of the rates with the interstate Commerce Commission at Washington was not a sufficient compliance with thé law to charge the shipper with notice.</p> <p>5. In such case the bill of lading cannot be held to be a contract limiting the liability of the carrier to the minimum valuation of $50, where the shipper had no actual notice of the intention of the carrier to limit its liability, where no declaration of value was asked or made, and where the paragraph in the bill of lading, providing that the liability would be limited to the minimum valuation unless a greater value was declared was- expressly stated in the bill of lading not to apply to the shipment of livestock.</p> <p>Failure to insert valuation in bill of lading — Error of agent.</p> <p>6. In such case, it was held that an offer by the defendant to prove that the failure to insert the valuation was due to an error of its agent at the point of origin of the shipment was properly refused, since such correction would in effect alter the terms of a written contract not upon the ground off a mutual mistake but because an agent is willing to say that he did not follow the instructions of his principal in preparing it for execution.</p>

<p>Water companies — Eminent domain — Appropriation of stream— Legal formalities — Improper talcing — Improper use of waters iaken —Bights of riparian owners — Equity—Injunction.</p> <p>1. The presumption is that a water company appropriates the waters of a stream under its charter for a lawful purpose.</p> <p>2. The legal formalities necessary for the condemnation of the water of a stream by a water company are sufficiently complied with where the company adopts a resolution that “for the purpose of supplying the public with water, and for its corporate purpose,” the company takes and appropriates all the waters of certain named streams, designating in such resolution the tracts of land' affected by the appropriation, and attaching plots showing the location of the lands, dams, intakes and other works of the condemning company, and where it further appears that locations had been staked on the ground, and as thus marked had been adopted by resolution of the company. The failure of the resolution to say in terms that the waters appropriated were intended to supply the public in the borough which the company was incorporated to supply, naming such borough, is immaterial where it states that the waters appropriated were taken for the “corporate purpose” of the water company.</p> <p>3. The taking of water by a water company for the direct supply of the public in townships and municipalities where the company has no legal right to furnish such is ultra vires and will be enjoined at the instance of a riparian owner affected, but where the taking is mainly for the purpose of supplying citizens within the proper territorial limits of the company, the furnishing of a small supply to persons outside of the limits is a mere incident of the main purpose and the taking will not be enjoined, and in such case if the water company exceeds its corporate powers by making an improper use of the water which it takes, it is answerable to the Commonwealth alone.</p>

<p>Eminent domain — Municipalities—Streets—Opening of street— Damages — Construction of sewer.</p> <p>The appropriation of the land of private owners by a city for street purposes, includes the use of that land for all of the ordinary requirements of a municipality, such as the construction of sewers and the laying of gas and water pipes, and the subsequent use of the street for any such purpose cannot be regarded as the imposition of an additional servitude entitling the owner of the fee to additional compensation beyond that received for the opening of the street.</p>

<p>Appeal, No. 190, Jan. T., 1914, by defendant, from judgment of C. P. Lancaster Co., Dec. T., 1912, No. 59, on verdict for plaintiff in case of Berks County Trust Company v. Mary McJ. Lyte, Administratrix of. E. O. Lyte, deceased.</p> <p>Assumpsit on promissory note. Before Hassler, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,233 1-3 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in admitting the note in evidence and in refusing binding instructions for the defendant.</p>

<p>Criminal law — Murder—Accessory before the fact — Guilt of principal — Record of .principal’s conviction.</p> <p>Where a defendant is. indicted as principal for murder but is tried as accessory before the fact, it is reversible error for the court to admit' in e'vidence the record of the trial of another as principal charged with the actual killing showing that the latter had been found guilty of murder of the first degree by a jury when a motion for a new trial was pending and no judgment had-been entered upon the verdict. •</p>

<p>Criminal law — Murder—Accessory before the fact — Jurors— Expression of opinion on case before trial — Challenge for cause— Peremptory challenges.</p> <p>1. When the opinion'of a juror upon a vital question in a case involving life in which he is called to serve, has been formed upon evidence heard by him as juror on another trial involving the same question, such opinion becomes so fixed a belief as to disqualify him from serving on the jury in the second trial.</p> <p>2. Where in a murder case, there are grounds for challenging á juror for cause, but the court overrules the challenge for cause,, and the defendant is thereupon compelled to peremptorily challenge1 such juror, so that before twelve jurors are selected defendant exhausts his peremptory challenges, he is unlawfully deprived of a valuable right; a conviction in such case is illegal,- and on appeal the judgment will be reversed.</p> <p>3. At the trial of an indictment for murder, it appeared that defendant had been indicted as principal, but was being tried .as accessory before the fact; that at a previous trial-of another accessory the question of the guilt of the principal had been submitted to the jury and decided adversely to the defendant;, three of the jurors who had found such accessory guilty were also called as jurors at the trial of the second accessory and were challenged for cause; the court overruled the challenges for cause and such jurors were peremptorily challenged by the defense. Other jurors were called after the defense had exhausted its peremptory challenges; the jury found a verdict of guilty of murder of the first degree and sentence of death was passed thereon. Held,, that the refusal to sustain the challenges for cause was error and the judgment was reversed with a venire facias de novo.</p>

<p>Appeal, No. 58, Jan. T., 1915, by plaintiff, from decree of C. P. Lancaster Co., Equity Docket, No. 6, page 20, refusing an injunction in case of B. F. Davis v. John E. Malone, William Anderson, Emanuel Kern, James G. Fowkes, Joseph W. Kenr worthy, Trustee in Bankruptcy of James G. Fowkes, Joseph W. Kenworthy, Adolf Segal, Harrison Snyder, George Snyder, John M. Groff, The Pennsylvania Water & Power Company.</p> <p>Bill in equity ‘to restrain defendant from prosecuting an action of scire facias sur mortgage. Before Hassle®, J.</p> <p>The facts appear by the opinion of the. Supreme Court.</p> <p>. The defendant demurred to the bill; the court sustained the demurrer and dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the-court.</p>

<p>Injunctions — Equity jurisdiction — Injury to established rights— Dams — Balance of convenience — Laches.</p> <p>1. Equitable relief by injunction against interference by another with the plaintiffs established right in the enjoyment of his property will not be refused on the ground that the injury is not irreparable and that the remedy will result in greater injury to the defendant than that which the plaintiff seeks to prevent, where it appears that the wrong complained of consisted in the erection of flash boards placed at certain seasons of the year on the top óf a dam, so that the water backed upon the plaintiff’s property to a depth of from two and a half to three feet and covered at times a portion of his land.</p> <p>2. The plaintiff in such case will not be convicted of laches because of delay in instituting the suit where it appears that while the defendant expended large sums in preparation for raising the dam, there was no evidence to show that the plaintiff or his predecessor in title knew that preparations were being made for such proposed addition.</p>

<p>Negligence — Physician and surgeon — Failure to remove drainage tube — Statute of Limitations — Act of June £4, 1895, P. L. £86.</p> <p>1. An action instituted on February 18, 1913, to recover damages for personal injuries alleged to have been caused by the negligence of the defendant, a physician and surgeon, in failing to provide for the removal at the proper time of a rubber tube which during the progress of a surgical operation performed on the plaintifE by the defendant was inserted in a wound for drainage purposes and which was invisible from the surface, is not necessarily barred by the provisions of the Statute of Limitations of June 24, 1895, P. L. 236, upon proof that the operation was performed by defendant at a hospital of which he was head of the staff of surgeons, and from which the plaintifE was discharged as a patient by the defendant on March 21, 1910.</p> <p>2. In such case the plaintifE should he allowed to show when and by whom the tube should have been removed, and when plaintiff might he reasonably charged with knowledge of the fact that the tube had been overlooked.</p>

<p>Appeal, No. 40, Jan. T., 1915, by Horace E. Smyser and Henry K. Smyser, Executors of the will of Michael Smyser, deceased; Lizzie B. Fulton, Executrix of the will of Samuel M. Fulton, deceased, and George W. Fry, from decree of G. P. York Go., directing distribution of the assigned estate of Edwin W. Loucks.</p> <p>Exceptions to auditor’s report. Before Wanner, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing the exceptions and in confirming the report.</p>

<p>Appeal, No. 208, Jan. T., 1915, by plaintiff, from judgment of C. P. York Co., Jan. T., 1911, No. 97, on verdict for defendant in case of James Crimmins v. A. B. Farqúhar Company, Ltd.</p> <p>Trespass for personal injuries. Before Ross, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned, among others, were rulings on evidence and the charge to the jury.</p>

<p>Appeal, No. 209, January T., 1915, by plaintiff, from judgment of C. P. York Co., August T., 1914, No. 25, on verdict for defendant in case of Alexander H. Meyer v. Harry S. Wiest.</p> <p>Assumpsit for tbe recovery of commissions for the sale of a merchandising business. Before Wanner, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Upon the trial the court admitted testimony elicited from the plaintiff on cross-examination to the effect that he had no merchandising broker’s license in the State of Pennsylvania during the pendency of the negotiations for the sale. (1)</p> <p>Verdict for defendant, and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were (1) ruling on evidence and answers to points.</p>

<p>Appeal, No. 115, January Term, 1915, by James W. Draper, from decree of C. P. No. 1, Philadelphia Co., Sept. T., 1912, Nos. 4239 and 4240 consolidated, dismissing exceptions and making distribution in the case of Charles A. Young, to the use of George B. McCracken v. John S. Brady and James W. Draper.</p> <p>Buie to pay the proceeds of a sheriff’s sale of real estate into'court. Exceptions to auditor’s report. Before BREGYj P. J.</p> <p>The facts appear' by the opinion of the Supreme ■ Court.</p> <p>The court dismissed the exceptions. James W. Draper appealed.</p> <p>Error assigned was in dismissing exceptions to audit* or’s report.' .</p>

<p>Appeal, No. 116, Jan. T., 1915, by Forrester H. Scott, executor, from decree of C. P. No. 1, Philadelphia Co., Sept. T., 1912, Nos. 4239 and 4240, consolidated, dismissing exceptions to auditor’s report in the case of Charles A. Young, to the use of George B. McCracken, v. John S. Brady and James W. Draper.</p> <p>Buie to pay the proceeds of a sheriff’s sale of real estate into court. Exceptions to report of Benjamin Daniels, Esq., Auditor. Before Bregy, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. Forrester H. Scott, executor, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

Appeal, No. 18, May T., 1915, by the Williamsport Rail Company, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1913, No. 24, on submission to court without a jury, in case of Commonwealth of Pennsylvania v. Williamsport Rail Company. Appeal from settlement of capital stock tax by auditor general and state treasurer.