Volume 251 — Pennsylvania State Reports

<p>Corporations — Taxation—Tax on corporate loans — Duty to assess — Foreign corporations doing business in Pennsylvania — Acts of June SO, 1886, P. L. 193, and June 8, 1891, P. L. 229.</p> <p>1. The general rule is that isolated transactions, whether commercial or otherwise, performed in this state by a foreign corporation, do not constitute “doing business” within the meaning of that phrase.</p> <p>2. The question whether or not a company is doing business within the State is one of fact not necessarily depending solely on single acts, or on the effect of single acts, but on the effect of all the combined acts which it may perform here. The tests are whether the foreign corporation shall have an agent in the State of Pennsylvania; or shall have offices for the general conduct of its business in the State; or shall conduct its corporate business in the State; or shall have a part of its capital invested in the State.</p> <p>3. Where a corporation organized under the laws of New Jersey holds its directors’ meetings and maintains a bank account in this State and has as one of its direct objects the purchase of the stocks and bonds of Pennsylvania corporations, and its treasurer resides in this State, and the performance of every act necessary to the actual business which the company transacts is done here, and it merely keeps its transfer books and holds its annual meetings in New Jersey, it is doing business in this State within the meaning of the Act of June 30, 1885, P. L. 193, requiring a foreign corporation doing business in this Commonwealth, upon payment of interest on any scrip, bond, or certificate of indebtedness issued by such corporation to residents of this Commonwealth, to assess the tax of four mills on the dollar imposed by the Act of June 8, 1891, P. L. 229, on all corporate indebtedness, owned or held in this State. The fact that the treasurer pays the interest through an agent in New York is immaterial.</p>

<p>Appeals, Nos. 9 and 12, May T., 1915, by Commonwealth, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1909, No. 561, on submission to court without a jury, in case of Commonwealth of Pennsylvania v. Westinghouse Air-Brake Company.</p> <p>Appeal from settlement of capital stock tax by auditor general and state treasurer. Before Kunkel, P. J.</p> <p>The opinion of the Supreme Court- states the facts.</p> <p>The Commonwealth claimed $21,353.08.</p> <p>The case was tried without a jury under the provisions of the Act of April 22, 1874, P. L. 109. The court directed judgment to be entered for the Commonwealth for $6,856.34. The Commonwealth and Westinghouse Air-Brake Company appealed.</p> <p>Errors assigned were in dismissing various exceptions to the findings of the trial judge.</p>

<p>Appeal, No. 17, May T., 1915, by defendant, from judgment of C. P. Dauphin Co., Jan. T., 1913, No. 80, for plaintiff on verdict for plaintiff, in case of John B. Rider v. York Haven Water and Power Company.</p> <p>Trespass to recover damages for injuries to plaintiff’s land resulting from the maintenance of a dam. Before McCarrell, J.’</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,000 for injuries sustained and for $2,700 for punitive damages, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Appeals, Nos. 133 and 134, Oct. T., 1915, by plaintiff, and the City of Pittsburgh and Joseph Gf. Armstrong, defendants, from decree of C. P. Allegheny Co., Jan. T., 1915, No. 1348, on bill in equity for an injunction, in case of Charles A. Schuldice, a Taxpayer of the City of Pittsburgh, v. The City of Pittsburgh, a Municipal Corporation of Pennsylvania, and Joseph G. Armstrong, Mayor, Appellants, and E. S. Morris, City Controller of said city.</p> <p>Bill in equity to enjoin a municipality from issuing bonds.</p> <p>Exceptions to the report of J. B. Eichenauer, referee, Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Plaintiffs and defendants appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Constitution of Pennsylvania — Schedule of the Constitution, Section 11) — Act of May 11/, 1915, P. L. 1)98 — Validity.</p> <p>1. The 14th Section of the Schedule of the Constitution is a substantive part of that instrument and is to be so construed. Its unmistakable intendment is that the legislature at the session held succeeding each decennial census shall designate the several judicial districts of the Commonwealth for the succeeding ten years.</p> <p>2. The Act of May 14,1915, P. L. 498, which amends the general judicial apportionment Act of July 18, 1901, P. L. 669, by designating the Counties of Cameron and Elk as the 25th judicial district, and attaching the County of Clinton to the 55th judicial district, is in violation of Section 14 of the schedule of the Constitution and is therefore void.</p>

<p>Appeal, No. 480, Jan. T., 1914, by George R. Dilkes, from decree of O. P. No. 3, Philadelphia Co., June T., 1911, No. 3798, in equity, dismissing exceptions to report of referee, in case of Harvey C. Miller v. George R. Dilkes, Southern Steamship Company and The Land Title and Trust Company.</p> <p>Bill in equity for an accounting.</p> <p>Exceptions to report of Stevens Heckscher, Esq., referee.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed exceptions to the referee’s report and imposed the costs on George R. Dilkes. George R. Dilkes appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Negligence■ — Sales—Diseased meat — Packers liability to consumer — Act of Congress of June SO, 1906, c. 8915, SJj U. S. Stat 768 — Case for jury.</p> <p>1. Where meat is sold by a packer to a retail dealer there is an implied warranty that it is free from disease, wholesome and fit to eat, and where the dealer sells the meat in the original packages such warranty extends to the consumer, who may recover directly from the packer for injury resulting from the diseased condition of the food.</p> <p>2. It is no defense to such suit that the meat was inspected and approved by the United States government officials under the provision of the Act of Congress of June 30, 1906, c. 3915, 34 U. S. Stat. 768. The packer’s duty to inspect, imposed by the common law, is absolute.</p> <p>3. In an action for the death of plaintiff’s husband resulting from trichinosis, which he contracted from eating diseased pork sold by defendant packer to a dealer and by the dealer sold to plaintiff in the original package, the case was for the jury and the entry of judgment for defendant n. o. v. was error.</p> <p>Mr. Chief Justice Brown dissents.</p>

<p>Appeal, No. 401, Jan. T., 1914, by defendant, from judgment of C. P. Luzerne Co., March T., 1912, No. 566, on verdict for plaintiff, in case of Bartels Brewing Company v. Employers’ Indemnity Company of Philadelphia, Pa.</p> <p>Assumpsit on a contract of liability insurance. Before Garman, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,599.55 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. 275, Jan. T., 1914, by defendant, from judgment of C. P. Blair Co., June T., 1914, No. 145, on verdict for plaintiff in case of Anna K. Fuoss, Anna C. Fuoss, William Fuoss, Jacob Fuoss, George H. Fuoss, Leonard Fuoss and John Fuoss v. The Tipton Water Company.</p> <p>Trespass for impairing plaintiffs’ water power. Before Baldrige, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for §8,264 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings of the trial judge referred to in the opinion of the Supreme Court.</p>

<p>Appeal by Charles A. Smith and L. H. Syphard, from decree of O. C. Schuylkill Co., July T., 1914, No. 31, dismissing exceptions to adjudication, in Estate of William L. Marquardt, Deceased.</p> <p>Exceptions to adjudication. Before Wilhelm, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Charles H. Smith and L. H. Syphard appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Electric companies — Wire maintained by consumer — Defective insulation — Eire—Liability of electric company to consumer — Evidence — Bes ipsa loquitur.</p> <p>1. An electric company is not bound to inspect electric appliances owned and maintained by its customers, nor is it liable to its customers for injuries or damages caused by reason of defects therein.</p> <p>2. Where an injury results from the defective insulation of electric wires installed upon private property, partly under the control of the property owner, and partly under that of the electric company, the burden is upon the property owner who seeks to charge the electric company with the loss, to prove negligence, and the doctrine of res ipsa loquitur does not apply.</p> <p>3. Where in an action against an electric company to recover damages for the destruction of plaintiff’s mill by fire resulting from the defective insulation of service wires at a point where they passed through the outer wall of plaintiff’s building, a witness testifying for defendant stated that when in plaintiff’s employ he had installed the service wire in the building, and the testimony of two other witnesses who were acquainted with the facts showed that defendant had not installed the wire, and the only witness for plaintiff to contradict such statements was a bookkeeper whose testimony showed that he had no direct knowledge as to who installed the wire, but only inferred that it was installed by defendant from entries in his books, the court did not err in directing a verdict for the defendant on the ground that such testimony was too indefinite and unreliable to be submitted to the jury.</p> <p>4. In such case, evidence of a custom regarding the construction of service wires and the installation thereof by electric companies, was properly excluded, to admit proof of such custom would have taken from the parties the right to regulate their business dealings and relations as they might see fit and would, in effect, limit their right of contract.</p>

<p>Appeal, No. 288, January T., 1915, by defendant, from judgment of C. P. York County, August T., 1913, No. 1, on verdict for plaintiff in case of Hartley-Zeigler Company v. George W. Bacon.</p> <p>Assumpsit to recover for material furnished and work and labor done. Before Ross, J.</p> <p>From the record it appeared that this was an action of assumpsit to recover for material furnished and work done under two agreements in which defendant undertook to purchase $5,000 worth of labor and concrete material within two years and the plaintiffs agreed to furnish the same at certain specified prices.</p> <p>The statements of claim set up, inter alia, that on April 2, 1909, plaintiffs and defendant entered into a written contract whereby it was agreed that defendant was to purchase or cause to be purchased from the plaintiffs $5,000 worth of concrete work (labor and material) ; that plaintiffs were to buy a lot of ground from the defendant for a consideration of $2,500 and in the carrying out of the contract one-half of the money due the plaintiffs from the defendant was to be credited on the purchase-price of the lot and the other half paid in cash; that on August 23, 1909, it was further agreed that plaintiffs should furnish material for the construction of the concrete and cement work in the erection of a concrete garage in York, Pa., and that the terms of payment were to be the same as under the agreement of April 2,1909; that in pursuance of the agreement plaintiffs had furnished to the defendant labor and material to the amount of $4,076.93 and this, together with interest on notes brought the total amount to $4,088.93; that the plaintiffs had up to the bringing of suit received $1,276.33 on account, leaving a balance of $2,812.60 still due; that the plaintiffs had demanded from the defendants on May 10, 1910, a balance then due under the contract $768.60 which amount the defendant had refused to pay and still refuses to pay; wherefore it was asserted that the defendant is justly, legally and equitably indebted to the plaintiffs in the sum of $2,812.60 with interest thereon from May 20,1910.</p> <p>The affidavit of defense denied every material averment as set forth in the statements of claim but admitted in an evasive manner that the work was done in pursuance of the two agreements of April 2 and August 23, 1909. It set up that none of the work was done according to the contract; that plaintiffs had agreed to do the work under the agreement of August 23, 1909, according to certain plans and specifications and alleged set-offs amounting to enough to leave a balance due defendant of $3,347.84 on the following items: for defective sidewalks, for failure to furnish a “one to six” mixture as agreed in the contract of August 23, 1909, for overcharges, for defective work on the garage, for failure to complete the garage, for personal property of the defendant retained by the plaintiffs, and because a deed for the property mentioned in the agreement of April 2, 1909, had been tendered to the plaintiffs, and for taxes paid on said property.</p> <p>There is no dispute about the fact that the two agreements of April 2, 1909, and August 23, 1909, were assented to and signed by both parties after the plans and specifications had been examined and discussed by the parties. Neither is there any dispute as to the fact that the material and labor for the cement work on the garage was furnished by the plaintiffs.</p> <p>The testimony in behalf of the plaintiffs, most of which was in conflict with testimony of the defendant brought out the following facts:</p> <p>Mr. Hartley refused at the time of the drawing up of the agreement of August 23, 1909, to incorporate the specifications for the garage for several reasons, one of them being that they would not have permitted him to charge for window spaces, etc., as though they were solid walls, and another being that they provided for a different mixture of concrete than he was willing to supply. The agreement of August 23,1909, is as follows: “York, Pa., Aug. 23, 1909. Mr. George W. Bacon, York, Pa. Dear Sirs: We hereby propose to supply all stone, sand and cement, also cinder to be used in floors, for the construction of the following described concrete and cement work to be used in the erection of your proposed garage building at 116 and 118 E. Market street, this city, upon the following terms and conditions, you to construct all necessary forms and furnish all water to be used in the work: 1. All foundation work, substantially as indicated on plans prepared by W. R. Smith, Jr., will be put into such forms which you are to construct for the sum of three dollars ($3.00) per perch, inserting such reinforcement as you may supply. 2. We will also supply and put into such forms as you may construct for the walls, a first class concrete in proportion of 1 to 6, for the sum of four dollars and twenty-five cents ($1.25) per cubic perch, inserting all necessary reinforcements as you may supply, according to directions and leaving such provisions for setting of beams and connections of floor members as may be indicated to us during the progress of the work. 3. We will construct a first class 1-inch cinder concrete on the ground to grade prepared by you, applying to it a 1-inch cement topping with drainage inclines arranged to suit, for the sum of five cents (.05) per square foot. 1. We will also supply and place the necessary concrete for your second and third floors as indicated in plans referred to, for the sum of ten cents (.10) per square foot, provided you construct all necessary forms and supply the metal reinforcement together with the necessary equipment and services for elevating material from the ground to the respective floors. The terms of payment are as the work is completed one-half is to be credited on purchase-money of lot situated in west end, and the balance to be paid for in cash or its equivalent. Very respectfully, Hartley - Zeigler Co. Per J. W. Hartley, Treasurer.”</p> <p>There was practically no dispute in the interpretation of the contract of April 2,1909.</p> <p>Verdict for plaintiff for $3,436.99, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were, among others, in refusing defendant’s motion for the withdrawal of a juror, various rulings on evidence, and the charge of the court.</p>

<p>Boroughs — Sewerage companies — Condemnation proceedings — Eminent domain — Damages—Evidence—Charge of court — New trial.</p> <p>1. In a proceeding to ascertain the value of a sewerage system taken over by a borough under authority of the Act of April 19, 1901, P. L. 82, which authorized a municipality to acquire the property of a sewer company upon payment of the actual value thereof at the time of taking, proof of the original cost of construction, while not controlling, is competent evidence to he considered as an element in ascertaining the present value.</p> <p>2. In such case where the defendant company, when called upon, failed to produce the original contract for construction showing the prices paid for the labor and material which went into the' work, an offer made on behalf of the borough to prove a copy of the contract by one of the engineers who was in active charge of the work of construction, to he followed by proof of the amount of labor, and quantities of materials furnished at the unit prices, so that the whole offer would have shown the cost of construction of the system, should have been allowed, where defendant’s only answer to the offer was the production of a paper setting forth an agreement which was made the basis of a greatly inflated issue o'f bonds and stock, but contained no evidence as to the cost of construction.</p> <p>3. The present value of the system, in such case, is the cost of reproduction less depreciation, and the exclusion of evidence that certain parts of the works required reconstruction or repair was erroneous.</p> <p>4. In such case evidence of the amount of the company’s indebtedness had no bearing upon the question of the value of the system, and should have been excluded.</p> <p>5. In such ease an affirmative answer to a point which permitted the jury to include in their estimate of the value of the plant, the amount of deficits or losses in the business was erroneous.</p> <p>6. In such proceeding the defendant company was entitled to compensation for the value of its business as a going concern and for whatever its franchises were actually shown to be worth, but where the privilege was not perpetual but was granted under a statute expressly empowering the municipality to take over the system at any time, the defendant company could have but little value as a going concern, and a point permitting the jury to take into consideration the value of the business as a going concern, but ignoring this feature was erroneously affirmed.</p> <p>7. In such case an assignment of error complaining of the refusal of the court to strike out certain testimony as to expenditures for betterments, stating that it would be allowed to remain for the time being will be overruled where the request for the exclusion of such evidence was not subsequently renewed.</p>

<p>Contempt — Insufficient commitment — Habeas corpus.</p> <p>Where a warrant for commitment for contempt fails to designate the contempt charged it is insufficient, arid on habeas corpus, a discharge, with costs, will be awarded.</p>

Appeals, Nos. 355 and 356, Jan. T., 1915, by A. B. Lamb and P. C. Fenton, from final order of C. P. Schuylkill Co., Sept. T., 1915, Nos. 360 and 361, setting aside nomination petitions in the matter of the Nomination Petition Filed by A. B. Lamb for the Office of Mine Inspector and in the matter of the Nomination Petition Filed by P. C. Fenton, for the Office of Mine Inspector. Petition to set aside nomination petitions.

<p>Elections — Primary elections — Fraud—Petition for recount— Act of July 12; 1918; P. L. 719; Section 15.</p> <p>The “five qualified electors” who are authorized by Section 15 of the Act of July 12,1913, P. L. 719, relating to primary elections, to present a sworn petition averring fraud or error in the computation of a vote and asking for a recount of the votes, need not he electors of tbe precinct, division or district in which tbe alleged fraud or error was committed.</p>

<p>Elections — Primary elections — Error in counting votes — Petition for recount — Time for 'filing — Act of July 12, 1918, P. L. 719, Section 15.</p> <p>Where petitions filed under the Act of July 12, 1913, P. L. 719, Section 15, for the opening of the ballot-boxes and a recount of the votes cast at a primary election, averred error or fraud in the computation of the vote, the dismissal of the proceedings on the ground that the petitions -which were filed four days after the computation by the county commissioners were filed too late, was erroneous.</p>

<p>Beal property — Municipalities—Dedication of municipal property to public purposes — Bevocation of grant — Validity—Bight of taxpayers — Equity—Setting' aside conveyance.</p> <p>1. Where a city has dedicated land for public uses and the public has accepted the dedication, the city is thereafter but the conservator’of the title in the soil; it has no greater or better right to revoke its grant than a private proprietor would have, and is without authority to sell or convey such land for private purposes.</p> <p>2. Where a municipality set apart certain real estate owned by it for the health and public welfare of its citizens and by a subsequent ordinance stated that such ground was set aside to be used as a public park forever and for the construction of certain museums and for a botanical and economic garden, and thereafter expended funds for repairing, improving and caring for such grounds and museum buildings, which was followed by the use of the ground and museum by the public, there was a complete dedication and acceptance of the property for public use and the city was estopped thereafter from interfering with or revoking the grant.</p> <p>3. Where there has been an absolute dedication of land for public purposes by a municipality and such municipality has thereafter appropriated money for the care, maintenance and improvement of at least portions of the land in question, every citizeU and taxpayer has an interest in the maintenance of the property for public purposes, not only by virtue of his being a member of the public to whom tbe property has been donated, but also by virtue of bis contribution as a taxpayer towards tbe funds which have been used in tbe improvement thereof, and has a standing in equity to question the validity of a conveyance of the land by the municipality to a private corporation.</p> <p>4. Where a municipality has dedicated land for the purposes of a public museum, an attempted conveyance of the land in the form of an absolute and immediate grant to a private corporation for its own uses will not be construed merely as the conveyance of the city’s reversionary interest in the property, but an attempt to convey the land discharged of the easement of the public therein, and will be decreed to be void at the instance of taxpayers complaining thereof.</p> <p>Mr. Justice Moschzisker dissents.</p>

Appeals, Nos. 384 and 387, Jan. T., 1914, by the Board of Trustees of the Philadelphia Museums, and the United States of America, from decree of C. P. No. 1, Philadelphia Co., June T., 1912, No. 612, dismissing exceptions to report of master, in case of Board of Trustees of the Philadelphia Museums v. Trustees of the University of Pennsylvania and the City of Philadelphia. Bill in equity to set aside a conveyance and for the cancellation of a deed.

Appeal, No. 20, May T., 1915, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1914, No. 65, for plaintiff on appeal from tax settlement of an account by the Auditor General and State Treasurer, in case of Commonwealth of Pennsylvania v. Alden Coal Company. Appeal from tax settlement by the auditor general and State, treasurer. Before Kunkel, P. J. The opinion of the Supreme Court states the facts.

<p>Appeal, No. 21, May T., 1915, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1914, No. 104, for plaintiff on appeal from tax settlement of an account by the Auditor General and State Treasurer, in case of Commonwealth of Pennsylvania v. St. Clair Coal Company.</p> <p>Appeal from tax settlement-by the Auditor General and State Treasurer. Before Kunkel, P. J.</p> <p>The facts appear in Commonwealth v. Alden Coal Company, 251 Pa. 134.</p> <p>The court entered judgment for the Commonwealth for the amount of its claim. Defendant appealed.</p> <p>Error assigned, among others, was the judgment of the court.</p>

<p>Criminal law — Criminal procedure — Murder—Instructions to jury — Reference to defendant’s failure to deny Commonwealth’s evidence — Act of April 23,1887, P. L. 158.</p> <p>1. At the trial of an indictment for murder where the Commonwealth made out a prima facia case and where the defense offered no evidence, instructions to the jury to the effect that the defense “has not made any denial of the testimony as offered by the Commonwealth” did not violate Section 10 of the Act of April 23, 1887, P. L. 158, which prohibits any adverse reference by counsel or court to the failure of defendant in a criminal ease to offer himself as a witness.</p> <p>2. In such case the right of the jury to fix the degree of the prisoner’s guilt was not taken away by instructions to the effect that under the statute all murder committed in the perpetration of or in an attempt to perpetrate a robbery is murder of the first degree, even if there be no specific intent to kill the victim, where the jury were further told that it was not only the right but the duty of the jury, if they found the prisoners or either of them guilty, to determine by their verdict whether the guilt was of murder of the first or second degree.</p>

<p>Appeal, No. 187, Oct. T., 1915, by defendants, from order of Superior Court, April T., 1915, No. 197, reversing order of C. P. Somerset Co., refusing mandamus, in case of William Winters, Charles Frank and Nelson Mosholder, Supervisors of Somerset Township, v. Jacob Koontz, C. C. Heckle and Millard Walker, Commissioners of Somerset County.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Superior Court by Kephart, J., is as follows: In the opinion dismissing the petition of the Supervisors of Somerset Township for a mandamus compelling the county commissioners to maintain and keep in repair an abandoned turnpike, the learned court below assumed as a fact that the road was an abandoned turnpike, and predicated its conclusion on the unconstitutionality of the Acts of April 20,1905, P. L. 237, and April 25, 1907, P. L. 104. From an examination of the answer to the petition there is no definite denial that the road was not an abandoned turnpike. The fact that the supervisors may have worked on and kept this highway in repair for a number of years would not relieve the commissioners from keeping the road in repair, if these acts commanding this to be done are constitutional. The averment that the road was taken over by the State highway department lacks definiteness, in that it is not shown under what act of assembly this was done, the route number with the information therein contained, and the time when the State highway department assumed jurisdiction. “While the act of assembly may have incorporated this highway into the State highway system by a given route, the procedure indicated by the laws creating and regulating State highways must be complied with; and this answer should have set forth when the State assumed control. The court below states that the formal notice of the State highway department assuming jurisdiction over the highway, was given to. take effect June 15, 1915.”</p> <p>Notwithstanding the very able opinion of the learned president judge, we are compelled to regard the constitutionality of these acts affirmatively determined by the decisions of Commonwealth v. Van Bowman, 35 Pa. Superior Ct. 410; Clarion County v. Clarion Township, 36 Pa. Superior Ct. 302, as appealed and affirmed in 222 Pa. 350; East Whiteland Township v. Chester County, 235 Pa. 579. These acts were repealed by the Act of May 10, 1909, P. L. 499, which latter act was repealed by the Act of March 15, 1911, P. L. 21, thus reinstating the Acts of 1905 and 1907. “By the repeal of a repealing statute, the original statute is revived.” Directors of the Poor v. Wrightsville, York & Gettysburg R. R. Co., 7W.&S. 236.</p> <p>The title of the Act of 1907 distinctly creates a new class of highways that must be repaired and maintained by counties, cities and boroughs. It notifies these municipal subdivisions that in addition to the repair and maintenance of turnpikes appropriated and condemned, turnpikes abandoned must also be cared for. The title could scarcely be more explicit. It is well within the rule of Mt. Joy Borough v. Lancaster, Elizabethtown & Middletown Turnpike Co., 182 Pa. 581.</p> <p>On the question of uniformity of taxation, we can only repeat what was said in Commonwealth v. Van Bowman, 35 Pa. Superior Ct. 410, 414, “It is further contended that the act violates Section 1, of Article IX, of the Constitution, which demands uniformity of taxation. This objection is met by the reply that the subject of the statute is not one of taxation at all. There is no constitutional obligation of any municipal district to maintain public highways. The duty is imposed by the statute,' and it is a matter of legislative discretion whether the highway shall be maintained by the county or the municipal district.”</p> <p>The Superior Court reversed the order’ of the Court of Common Pleas and reinstated the petition for the writ of mandamus with directions that the writ should issue commanding defendants “to maintain and keep in repair the abandoned turnpike leading from the easterly line of Somerset Borough to the easterly line of Somerset Township.” Defendants appealed.</p> <p>Error assigned was the order of the Superior Court.</p>

<p>Appeal, No. 104, Oct. T., 1915, by defendant, from judgment of C. P. Venango Co., Nov. T., 1910, No. 32, on verdict for plaintiff, in case of Miles O’Neill v. The Venango Manufacturing Company, a Corporation.</p> <p>Trespass to recover damages for personal injuries. Before Criswell, P. J.</p> <p>From the record it appeared that defendant maintained an elevator between the first and second floors in its factory which its employees were permitted to use, not.only for the transportation of freight between the two floors, but for riding up and down when occasion required.</p> <p>When the elevator platform was at the second floor, it formed a part of the floor; but when it was on the first floor or being lowered thereto, an opening or well was left in the second floor. This well hole was not enclosed, secured or guarded in any manner, except at the rear where the wall of the building would probably protect it.</p> <p>On the second floor a trap or gate was constructed which was automatically lifted and lowered by the elevator; when the elevator platform was on the first floor this gate was lowered in front of the well hole on the' second floor so as to form when in place a sort of protection or guard at the front of the well hole. When the elevator platform was at the second floor, this gate or trap was lifted to the ceiling of the second story, the bottom of it then being about six feet above the second floor, so that employees could pass under it. It was not lowered to its position on the second floor so as to guard the well hole before the elevator moved when being lowered to the first floor, but moved down with the elevator, and did not get into position so as to protect this opening until the elevator platform was about six feet below the second floor. When the elevator platform was being lifted from the first floor to the second floor, this gate was lifted by the elevator when the platform had arrived within about six feet of the second floor, and carried up to the ceiling of the second story, thus leaving the well hole unprotected while the elevator platform was coming up to the second floor from the first floor.</p> <p>The defendant company had placed a bell on a post about three feet above the second floor and another one on a post about five feet from the first floor. No elevator boy or person to operate the elevator was employed. Whenever one was on the first floor and wished to use the elevator, and found the platform to be at the second floor, he pulled a cord which was intended to ring the bell on the second floor, so. as to warn the employees that the elevator was going to move and leave the well hole open. In like manner when one was on the second floor and wished to use the elevator, he pulled a cord which was intended to ring a bell on the first floor, to warn those below that the elevator was coming down. Having thus pulled the cord another rope was then pulled which would start the elevator. After having pulled the cord and started the elevator the operator had nothing further to do, as the elevator was operated by compressed air and moved automatically either up or down as required when the cord was pulled.</p> <p>On the 11th day of January, 1910, plaintiff, who was in the employ of defendant, having occasion to use the elevator to carry some freight from the first to the second floor, came to the elevator when it was going up to the second floor. He waited until the employee using the elevator had left it, and then pulled the cord to ring the warning bell on the second floor; he then pulled the rope to start the elevator in motion and stepped back out of the way of the elevator as he had been instructed to do when he first came into the employ, of the defendant company.</p> <p>A buzz saw was. in operation on the second floor, and another employee was coming past it on the second floor with a heavy truck or car to place upon the elevator. He did not hear the warning bell on account of the noise of the saw, and did not know that the elevator was going to move until it started just as he was about to wheel the heavy truck upon it. The gate was up at this time. Seeing the elevator'start to move he endeavored to hold the truck back, but was unable to do so. He held on to it until he was struck by the descending gate, when he was forced to let it go and it fell through the well hole and there being no guard, bounded from the platform of the elevator to the floor below, where it again bounded and struck plaintiff who was standing back at the usual place waiting for the elevator to come down.</p> <p>Defendant claimed on the trial that it was impracticable to put any guard or enclosure about the elevator or the elevator well, but upon cross-examination of the witnesses produced by defendant for this purpose, and by other witnesses it was shown that a wire cage had been shortly after the accident, attached to the ceiling of the first floor, extending down to within five or six feet of the first floor, through which the elevator was being operated without inconvenience at the time of the trial, and that if such cage had been there at the time of the accident, the injury would not have occurred.</p> <p>Verdict for plaintiff for $4,250 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was the refusal of the court to direct a verdict for defendant.</p>

<p>Elections — Ballot—Objection to name on ballot — Bill in equity.</p> <p>Where a bill in equity to enjoin the county commissioners from printing the name of a certain candidate upon the official ballot to be voted for at a primary election was dismissed by the lower court a few days before such election, the question raised on an appeal from such decree taken six months thereafter is purely academic and the appeal will be quashed.</p>

<p>Appeal, No. 9, Oct. T., 1915, by plaintiff, from judgment of C. P. Butler Co., Dec. T., 1906, No. 71, directing judgment for defendant in case of James B. Mates v. Bella A. Young.</p> <p>Ejectment by creditors to recover land alleged to have been conveyed in fraud of creditors.</p> <p>Tbe case was submitted to tbe trial judge without á jury, under the provisions of tbe Act of April 22, 1874, P. L. 109.</p> <p>Tbe facts appear in tbe following opinion by Williams, P. J., specially presiding:</p> <p>A jury for tbe trial of tbe above stated case was sworn on June 12,1907, and after tbe bearing of testimony bad been concluded tbe parties, by a paper filed in tbe office of tbe protbonotary, agreed to dispense with a trial by jury and submit tbe case to tbe court, with power to determine all questions, both of law and fact, in accordance with tbe provisions of tbe Act of April 22,1874, P. L. 109.</p> <p>After tbe testimony bad been transcribed, tbe case argued and briefs of counsel filed, tbe court, on June 11, 1908, filed tbe opinion to wbicb tbe exceptions now before us were filed. Said exceptions were filed on July 10, 1908, and there tbe case rested for a period of nearly six years, or until tbe 4th day of May, 1914, when said exceptions were argued by counsel. Tbe brief of tbe learned counsel for tbe plaintiff, however, was not filed with tbe court until July 7, 1914.</p> <p>In all, thirty-four exceptions have been filed, of wbicb twenty are to tbe opinion of tbe court, six are to six of tbe twelve findings of fact by tbe court, while eight exceptions are filed to tbe six conclusions of law stated by tbe court. To now reconsider and discuss each of these numerous exceptions in detail, would involve a retrial of the whole case, a task upon wbicb we hesitate to enter in view of the great length of time that has elapsed since the filing of onr former opinion and the filing of exceptions thereto by the learned counsel for the plaintiff. We have, however, carefully re-read said opinion in connection with said exceptions and find that all of the material questions presented by said exceptions were fully heard and carefully disposed of in our former consideration of the case.</p> <p>The principal question urged at the argument of said exceptions was as to the effect of the rule of court cited at the argument by the learned counsel for the plaintiff, which, in substance, requires the defendant in an action of ejectment “to file a statement containing an abstract of the title or facts on which he relies for his defense, whether the same be in writing or otherwise.......Upon trial the defendant shall be confined to proof of the title and facts stated by him in such abstract or statement,” etc. In compliance with this rule, the defendant filed an “Answer and Plea,” in which, in addition to the plea of “not guilty,” the defendant set out an abstract of her title to the land described in the writ and stated that:</p> <p>“In addition, will offer parol proof to sustain defendant’s title and right of possession.” In our former consideration of the case we held that under the pleadings in the case the defendant was entitled to offer parol evidence as to the actual or real consideration for the deed under which she claims title to the land in dispute. If any doubt existed as to that question after the defendant had filed her “answer and plea” we think that doubt was entirely removed by the replication or denial subsequently filed on behalf of the plaintiff, in which the defendant’s abstract of title is denied and it is averred that: “the same is fraudulent, and made for the purpose of defrauding creditors and plaintiffs as one.” The closing paragraph of said replication or denial is as follows : “Parol and other evidence will be offered in support hereof and to show the indebtedness of E. E. Young prior to Nov. 18, 1904, and that the conveyance unto his wife, Bella A. Young, was without consideration and to defraud his creditors and plaintiff.”</p> <p>We were of the opinion at the trial that the notice given by the defendant of her intent to offer parol proof in support of her abstract was sufficient to warrant the admission of parol proof in explanation of the consideration in any or every deed mentioned in her abstract. We are still of that opinion, but, as we have said, if there was any doubt as to that question it was entirely removed by the filing of the plaintiff’s replication. As the pleadings stood at the time the defendant filed her “answer and plea” she was not required to assume what attack the plaintiff would make upon the matters set forth in the defendant’s abstract, but when the plaintiff’s replication was filed as required by the rule of court it set forth that the plaintiff would attack the deed of Bella A. Young as being without consideration and fraudulent. That was the first time that issue was raised in the pleadings and placed upon the plaintiff the affirmative in the issue thus raised.</p> <p>As we view the case there are several good and sufficient reasons why evidence of the parol agreement in support of the consideration for the deed under which the defendant claims title was admissible: (a) The evidence was admissible because it was in reply to the plaintiff’s assertion of want of consideration, (b) The evidence was in reply to the plaintiff’s charge of fraud and such testimony as he offered in support of it. (c) The evidence was competent because it was in line with the notice given by the defendant in her abstract that parol evidence would be offered. If the plaintiff desired more specific information concerning the evidence thus proposed to be offered by the defendant he had the right to call upon her for a more specific statement, and having failed to do so, we think he has now no just reason to complain. In any view of the case we are unable to see how the plaintiff was placed at any disadvantage by the admission of said evidence. The plaintiff could not have been surprised at the testimony offered for he himself had challenged said deed as being without consideration and fraudulent, and it is, therefore, fair to assume that he had fully investigated the facts pertaining to the same; otherwise his allegations concerning said deed could not have been made in good' faith. A careful consideration of this branch of the case has failed to convince us of any substantial error in our former conclusions concerning it.</p> <p>A careful reconsideration of the whole case in the light of our former opinion and of the authorities cited by the learned counsel for the plaintiff has not convinced us of any such error in our former findings and conclusions as to warrant us in disturbing them. It follows, therefore, that the numerous exceptions filed to said opinion should all be dismissed.</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered judgment for the defendant. Plaintiff appealed.</p> <p>Errors assigned, among others, were the judgment of the court, and the ruling on evidence discussed in the opinion of the lower court.</p>

Appeal, No. 158, October T., 1915, by defendant, from judgment of O. P. Washington Co., Nov. T., 1914, No. 61, on verdict for plaintiff in case of J. H. Cook, for his own use and for the use of the .¿Etna Insurance Company of Hartford, Conn., and National Fire Insurance Company of Hartford, Conn., and Liverpool, London and Globe Insurance Company of England, v. Pittsburgh, Cincinnati, Chicago and St. Louis Railway Company, a corporation, operating the Chartiers Branch of the…

Appeal, No. 191, October Term, 1915, by Sarah Miller, from decree of O. P. Washington Co., Nov. T., 1913, No. 421, dismissing exceptions to auditor’s report In re Trust for Sarah Miller and Esther J. Morrow, and the Estate of Alexander B. Miller, deceased. Exceptions to auditor’s report.

<p>Appeal, No. 235, October Term, 1915, by defendant, from judgment of O. P. Beaver Co., Dec. T., 1912, No. 214, on verdict for plaintiff in case of Ales. Waina v. Pennsylvania Company.</p> <p>Trespass for personal injuries, brought under Federal Employers’ Liability Act of April 22, 1908, Oh. 149, 35 U. S. Stat. 65. Before Bouten, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $4,200, on which, after the filing of a remittitur, judgment was entered for $3,000. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment, non obstante veredicto.</p>

<p>Appeal, No. 265, Jan. T., 1915, from decree of O. O. Lancaster Co., Jan. T., 1914, No. 48, in the matter of S. Jane. Wilson y. The Church Erection Society of the United Brethren in Christ; The Home, Frontier and Foreign Missionary Society of the United Brethren in Christ for Home Mission purposes; The Home, Frontier and Foreign Missionary Society of the United Brethren in Christ for Foreign Mission purposes; The Union Biblical Seminary of the United Brethren in Christ at Dayton, Ohio, now known as The Bonebreak Theological Seminary and Harry N. Nissley, executor of Mary A. Herr.</p> <p>Petition for issue devisavit vel non. Before Smiti-i, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the petition. S. Jane Wilson appealed.</p> <p>Error assigned, among others, was in refusing issue devisavit vel non.</p>

<p>Original Jurisdiction, Miscellaneous Docket, No. 190. Petition of William Funk for writ of mandamus requiring John Q. Yan Swearingen, President Judge of the Court of Common Pleas of Fayette County, Pennsylvania, to announce his decision, already made, in á case pending in the Common Pleas Court of Fayette County, and to file the opinion and order prepared by him in the said case.</p> <p>The petition of William Funk, presented to the Supreme Court by C. A. Tuit and H. S. Dumbauld, filed October 4,1915, was as follows:</p> <p>The petition of William Funk respectfully represents:</p> <p>First: That he is a resident of New Salem, Fayette County, Pennsylvania. .</p> <p>Second: That Honorable John Q. Yan Swearingen is one of the regularly elected and duly qualified judges of the Court of Common Pleas of Fayette County, Pennsylvania, comprising the Fourteenth Judicial District of Pennsylvania, and has been commissioned as president judge of said court.</p> <p>Third: That, on January 19,1915, a bill in equity was filed in the Court of Common Pleas of Fayette County, Pennsylvania, sitting in equity, at No. 744, wherein David L. Durr and Fuller Hogsett are plaintiffs, and Josiah V. Thompson is defendant, praying, inter alia, that receivers be appointed to take charge of the estate of the said Josiah Y. Thompson, and to restrain all and every of the creditors of the said Josiah Y. Thompson from in any manner proceeding against the said Josiah Y. Thompson, or in any manner interfering with the assets of. the said Josiah Y. Thompson.</p> <p>Fourth: That, on the same date and simultaneously with the filing of said bill, the said Josiah V. Thompson filed an answer thereto, admitting substantially the averments in said bill contained, and joining in the prayer thereof.</p> <p>Fifth: That, upon consideration of said bill and answer, the court made an order or decree granting the prayers of said bill, and appointing John Brennen, William G. Laidley, and Andrew A. Thompson, receivers of the estate of said Josiah Y. Thompson, and in said decree directed, inter alia, as follows:</p> <p>“Sixth: It is further ordered and decreed that the said defendant, his agents, employees and servants, and also all creditors of the said defendant and other persons holding or having in their possession, or being entitled to the possession of any property or assets of the said defendant, whether owning the same as collateral security as mortgagee, pledgee, or otherwise, be and the same are hereby enjoined and restrained from selling, transferring or in any manner disposing of the said property belonging to the said defendant, or in which defendant may have an interest, except as this court may order, and all other creditors of said défendant, or persons having claims against the said defendant are hereby enjoined and restrained from bringing, and also from further prosecuting suits or actions at law or in equity against the said defendant, and from entering judgments, from issuing executions or attachments against the said defendant, or any of the property in the hands of said receivers without leave of this court first obtained; and in general from in any way interfering with or obstructing the possession and control by the receivers of any of the property of said defendant, or in which he has an interest, and from doing any other act or thing to obstruct the said receivers from the performance of their duties under said order of the court.”</p> <p>Sixth: That your petitioner is an unsecured creditor and holder of a certain promissory note executed by the .said Josiah Y. Thompson, bearing date the 22d day of November, 1910, in the sum of three thousand dollars (|3,000.00), and due one year from said date, with interest thereon from the 22d day of November, 1913.</p> <p>Seventh: That, by the order or decree, as aforesaid, your petitioner was restrained from instituting suit for the collection of said note against the said Josiah V. Thompson, notwithstanding the fact that the said note was due and payable, except by leave of said court first had and obtained.</p> <p>Eighth: That your petitioner, on the day of April, 1915, presented to the said Court of Common Pleas of Fayette County, sitting in equity, at No. 744 in equity, as aforesaid, his petition, setting forth what, to him seem good and sufficient reasons, praying for leave of the said court to institute suit against the said Josiah V. Thompson for the collection of the said note.</p> <p>Ninth: That the matter was so proceeded in that, on April 13, 1915, argument was had before Honorable John Q. Van Swearingen, president judge of the said court, he being then the sole judge of the said Court of Common Pleas of Fayette County, Pennsylvania, comprising the Fourteenth Judicial District of Pennsylvania, there being a vacancy in the office of additional law judge for said district at that time, whereupon the said Honorable John Q. Van Swearingen took into his possession all the papers in the said case and announced from the bench that a prompt decision would be made therein.</p> <p>Tenth: That numerous creditors of the said Josiah V. Thompson presented like petitions for leave of the said court to institute proceedings against the said Josiah V. Thompson, all of which cases were heard and argued before the said Honorable John Q. Van Swearingen, on said date.</p> <p>Eleventh: That, on Saturday, May 22, 1915, all the counsel of record and in interest in said different petitions and proceedings met at the office of said Honorable John Q. Van Swearingen, where and when the said Honorable John Q. Van Swearingen stated to the attorneys of record and in interest, as aforesaid, that he had examined the papers in all of said cases, had considered the briefs submitted by all the counsel in interest; that he had made his decision in all of said cases; that he had prepared .an opinion and order covering each of said cases, and that, unless other arrangements were made, he would, on the following Tuesday, announce his decision, as aforesaid, and would file in the office of the prothonotary of said court, the opinion and order in each of said cases, and stated at the time that all that was necessary in said cases was to insert in each of the said orders the date thereof.</p> <p>That, after some discussion, it was unanimously agreed by the attorneys in interest that the opinion and order in each of the said cases should be . held by the said Honorable John Q. Van Swearingen until June 15, 1915, at which timé the said opinion and orders should be filed.</p> <p>Twelfth. That, on Saturday, June 12, 1915, at 4 o’clock p. m., a special session of said court was called, and, notwithstanding the protest of counsel for petitioner, in writing, filed with the said judge, at said date, the court fixed September 14, 1915, as the time when the said opinion and orders (including the order in the case of your petitioner) should be filed, as aforesaid, the said Honorable John Q. Van Swearingen then and there publicly announcing from the bench that his decision was made, his opinion ready, and an order in each case, except as to date, ready to be filed.</p> <p>Thirteenth: That, on Saturday, September 11, 1915, at a session of court, held at the noon hour, notwithstanding the protest of counsel for petitioner, after hearing arguments in favor of a further extension of the time at which such an opinion and order should be filed, and after having taken a standing vote of all the attorneys presumably interested in the matter, as aforesaid, the said Honorable John Q. Van Swearingen publicly announced from the bench that, in consideration of the fact that the result of said vote was eighteen to two in favor of further extending the time, as aforesaid, he had fixed March 14, 1916, as the time when he would announce the said decision and file the opinion and orders, as aforesaid.</p> <p>Fourteenth: That your petitioner is advised and believes that it is the duty of the said Honorable John Q. Van Swearingen to, without further delay, announce his decision in the litigation of your petitioner, file the order therein in the proper office, and that it is contrary to justice and equity for the said Honorable John Q. Van Swearingen, presiding over a court of equity, as aforesaid, to permit the attorneys for other litigants to determine adversely to your petitioner’s interest, the time and manner of his performance of an official duty.</p> <p>Fifteenth: That your petitioner is beneficially interested in said decision, opinion and order, in that it determines whether or not he can proceed in an orderly and legal manner to enforce his remedies for the collection of an overdue obligation'of the said Josiah V. Thompson, and that the delay in announcing the said decision and filing the said opinion and orders results in unduly hindering, delaying and prejudicing your petitioner in the enforcement of his legal rights in the premises. '</p> <p>Sixteenth: That your petitioner, through his counsel, has, in open court, demande'd of the said Honorable John Q. Van Swearingen the performance of his official duty in respect to the said decision, opinion and orders, which duty’ the said Honorable John Q. Van Swearingen, president judge, as aforesaid, hitherto has refused, and still refuses to perform.</p> <p>Seventeenth: That Honorable Edmund H. Reppert, associate law judge of the said court, (having been appointed as such judge since the beginning of the said proceeding) was, at the time of its beginning, of counsel for the said Josiah V. Thompson, and is, therefore, disqualified from acting in the said matter.</p> <p>Eighteenth: Your petitioner, therefore, being without other adequate and specific remedy at law, prays your honorable court to direct that a writ of mandamus may issue, alternative in form, commanding and requiring the Honorable John Q. Van Swearingen, president judge of the Court of Common Pleas of Payette County, Pennsylvania, comprising the Fourteenth Judicial District of Pennsylvania, to announce the decision already made in the case now pending in said court, wherein your petitioner has prayed said court for leave to institute proceedings against Josiah V. Thompson, and file the opinion and order, heretofore prepared by him in said case, in the proper office, and otherwise proceed in said cause as to equity and justice shall appertain, or to show cause, if any there be, why the same should not be so done.</p> <p>On October 5,1915, the Supreme Court granted a rule on the Honorable John Q. Van Swearingen, president judge of the Court of Common Pleas of Fayette County, to show cause why the writ should not issue, returnable October 15, 1915.</p> <p>The Honorable John Q. Van Swearingen, president judge of the Court of Common Pleas of Fayette County, filed the following answer:</p> <p>To the Honorable, the Chief Justice and the Associate Justices of the Supreme Court of Pennsylvania:</p> <p>In answer to the rule granted in this case I respectfully state that it is true that on January 19, 1915, on a bill in equity filed for that purpose, receivers were appointed by the Court of Common Pleas of Fayette County, for the estate of Josiah V. Thompson, and at the same time it is decreed by the court, inter alia, that “All creditors of the said defendant, or persons having claims against the said defendant, are hereby enjoined and restrained from bringing, and .also from further prosecuting, suits or actions at law or in equity against the said defendant, from entering judgments, and from issuing executions or attachments against the said defendant, or any of his property in the hands of said re-. ceivers, without leave of this court first obtained.” Following the appointment of the receivers in the Thompson case bills in equity were filed for the appointment of receivers for the estates of other individuals, upon which bills receivers were appointed as prayed for, and decrees were made similar to that in the Thompson case, until at the present time there are in the hands of the court twelve receivership cases in addition to that of Josiah V. Thompson, all of which twelve receiver-ships were brought about and rendered necessary in the opinions of the parties by the appointment of .the receivers for the Josiah V. Thompson estate, and all' of them are so closely connected and associated with the Josiah V. Thompson estate that whatever orders are made in the Josiah V. Thompson estate must be made also in all the other cases. These thirteen estates comprise assets valued at $100,000,000, with debts of nearly, half that amount. Receivers have been appointed also for the estates of a number of other individuals and corporations, not, however, so closely connected with the Josiah V. Thompson estate as those already mentioned, and not being now before the court on the questions arising in the thirteen estates specified.</p> <p>In the Josiah V. Thompson estate and in nearly all of the other receivership estates closely associated therewith, after the receivers had been appointed, and the restraining orders made, petitions of creditors were presented to the court for leave to enter suits against the individuals so in the hands of receivers, in order that the claims of creditors might be reduced to judgments. I granted rules on these petitions to show cause why permission to sue should not be given, and to most of the rules answers were filed. The matters came on for argument and were heard by me on April 13, 1915. It was two or three weeks later before I received the briefs of counsel, following which I prepared opinions and orders in all the cases before the court with the expectation of filing them on May 25,1915, which purpose on the part of the court was made known to counsel interested.</p> <p>On May 22,1915, counsel of record and in interest, in-eluding a number who had not filed petitions on behalf of their clients to enter suit in any of the receivership cases, but who represented large claims of creditors, and some of whom were large creditors themselves, met in my office at their own instance, and after discussion unanimously requested me to withhold my decisions on the petitions to sue until June 15, 1915, which I agreed to do.</p> <p>On Saturday, June 12, 1915, the court then being in session, and having been in session all of that day and all of that week, engaged in the trial of criminal cases for the term, counsel representing all of the parties who had filed petitions for leave to sue, and many others interested in the decisions of the court on those petitions, who had not yet filed petitions for leave to sue, came into court of their own volition, and asked for a further postponement of the decisions, stating to the court that such further postponement would be very much to the interest of the unsecured creditors of Josiah V. Thompson, as well as to the many unsecured creditors of the other persons for whose estates receivers had been appointed, and not only to the interest of the creditors of these estates but of vital interest and importance to the whole community in conserving the estates in the hands of the receivers and preventing the sacrifice of the assets. At that time counsel for every creditor interested, except one, joined in the request for the further postponement of the decisions, and because of the almost unanimous request of the parties interested I consented and agreed that no decisions on the petitions for leave to enter suits would be rendered prior to September 14, 1915, a date fixed by counsel themselves.</p> <p>On Saturday, September 11, 1915, during the regular term of court, the court having been in session all of that week and all of that day in the trial of criminal cases; counsel representing creditors, at their own instance as before, came into court and at the conclusion of a criminal trial again requested the court to further postpone the rendering of the decisions on the applications for leave to sue in the receivership cases. There was a full statement by counsel of their reasons for desiring a further postponement of action by the court. All of the parties interested were invited and urged by the court to give full expression to their opinions either for or against the application for further postponement of the decisions, in order that the court might obtain the true sentiment of the parties interested and be fully advised as to, what counsel believed would be for the best interests of all the parties concerned. It was represented to the court that the postponement of the decisions up to that time had been of great benefit to the receivership estates and to the community at large, in that valuable assets of the receivership estates had not been required to be sacrificed, thus greatly benefiting all unsecured creditors, and in that in the meantime numerous persons not in the hands of receivers but whose estates had been jeopardized by the financial embarrassments of those already in the hands of receivers had. been enabled to adjust their financial affairs so that they would be in no future danger.of financial troubles as the result of the financial embarrassments of the said Josiah V. Thompson and others whose estates were then in the hands of receivers; that no injury had resulted to any of the unsecured creditors of any of the parties in the hands of receivers by reason of the postponement of the decision of the court up to that time, and that on account of the improved conditions of business, the nature of the assets of the receivership estates, and the prospects for an early adjustment of the financial embarrassments of said Josiah V. Thompson and others whose estates were in the hands of receivers, it would be to the very great interest and advantage of all the unsecured creditors of said receivership estates, and of vital interest to the community at large, that a further postponement of the decisions of the court be had. A number of the attorneys who addressed the court in favor of the further postponement of the court’s decisions stated that they were not only representing clients but were large creditors themselves of some of the receivership estates, and that it was their wish and desire that the court should grant the application for further postponement of the decisions. In the discussion before the court it appeared that many millions of dollars of claims were represented by those favoring the further postponing of the court’s decisions, while those opposed thereto represented comparatively small amounts. Some of counsel present, in addition to representing their own clients, stated that they were authorized to speak for other members of the bar representing large claims and to represent to the court that they also were in favor of the further postponement of the decisions. At the close of the arguments of counsel an informal motion was made by one of the attorney’s present that the filing of the court’s decisions be further postponed until March 14, 1916. In order to ascertain the sentiment of counsel on that motion the court asked all the attorneys interested who were in favor of the motion to rise to their feet, and in response thereto eighteen lawyers arose. Upon the request of the court for those to arise who were opposed to the motion only two members of the bar indicated their opposition thereto, being those representing William Funk, the petitioner for the mandamus in this case. Several members of the bar representing claims against the receivership estates who were not present in court had sent word that they favored the postponement of the court’s decisions until a later date. Whereupon I stated that in view of the almost unanimous request of the creditors, as represented by counsel, no decision would be rendered prior to March 14, 1916, which was the date suggested to the court by counsel themselves, unless conditions should so change in the meantime as to make earlier action advisable, and I then suggested to counsel that the matter could again be called to the attention of the court if conditions should so change.</p> <p>I have not at any time given any intimation to anybody, lawyer or layman, as to what my decisions of the cases would be, and I have refrained from rendering the decisions wholly on account of the almost unanimous requests of counsel interested that the decisions be withheld, for the reasons advanced by them.</p> <p>On October 15, 1915, leave was given by the Supreme Court to certain members of the bar of Fayette County, a number of whom were interested personally as creditors of Josiah Y. Thompson, to file a petition with the above rule and answer.</p> <p>Such petition alleged that in the event of the lower court being ordered to file the opinion and orders immediately similar action would have to be taken where other, petitioners who were creditors of the estate had filed like applications and that such action would result in thousands of suits, would force the estate of the debtor in question into bankruptcy, and throw thousands of workmen out of employment; and prayed that the facts therein recited be given consideration in the determination of the rule to show cause granted on the respondent.</p>

<p>Municipalities — Counties — Courthouses — Alteration and improvement — Discretion of county commissioners — Advertisement for bids by controller — Refusal—Mandamus.</p> <p>Where under the Acts of April 15, 1834, P. L. 537, and April 19, 1895, P. L. 38, two or more successive grand juries have recommended and approved alterations and additions to a county courthouse and the reports of such grand juries have been approved by the Court of Quarter Sessions and the plans and specifications for the proposed improvements submitted by the county commissioners to the judges of said court, have been approved by them, it is the duty of the county controller to advertise for bids for the work; he has no discretion to refuse to perform this duty on the ground that he does not approve the extent of the proposed changes, and in the absence of fraud, bad faith or of a disregard of pfiblic duty in connection with carrying out the improvements to the proper officials, he may be compelled by mandamus to perform this duty.</p>

<p>Criminal law — Criminal procedure — Witnesses — Husband and wife■ — Competency of wife to testify against husband — Act of April 11, 1899, P. L. Jfl, Section 2.</p> <p>1. The Act of April 11, 1899, P. L. 41, Section 2, providing that “in any criminal proceeding brought against the husband, if he makes .defense at the trial upon any ground which attacks the wife’s character or conduct, she shall be a competent witness in rebuttal for the Commonwealth,” does not apply merely to minor misdemeanors where the husband or wife has instituted the proceeding and one stands in opposition to the.other, or merely to causes where the actual defense offered is such as in itself attacks her character and conduct, but to any case where, in the course of the trial, defendant offers any evidence which attacks the character and conduct of the wife.</p> <p>Evidence — Cross-examination—Evidence of character — Evidence in rebuttal — Erroneous rulings — Act of March 15,1911, P. L. 20.</p> <p>2. Under the Act of March 15, 1911, P. L. 20, relating to the cross-examination of persons charged with crime and testifying in their own behalf, a defendant who has produced evidence of his own good reputation or character by calling character witnesses, may, when called as a witness in his own behalf, be cross-examined with reference to the commission of other offenses.</p> <p>8. In such a case evidence of particular criminal acts committed by defendant cannot be introduced by the Commonwealth in rebuttal; such evidence is not admissible under said act or on the theory that it was introduced for the purpose of contradicting denials of defendant where it appears that such denials were not made until after the rebuttal testimony had been received.</p> <p>Murder — Self defense — Evidence of admissibility.</p> <p>4. Where in a murder trial the defense was that the killing was committed in self-defense, it was reversible error to refuse to permit defendant to show that a former difficulty between him and deceased had occurred, and that defendant had a reasonable apprehension of danger from an attack; such testimony had a direct bearing on the relation between the parties and the condition of their minds when the act was committed.</p>

<p>Appeal, No. 117, Oct. T., 1915, by defendant, from judgment of O. P. Cambria Co., Sept. T., 1912, No. 367, on verdict for plaintiff, in case of Hiram Ribblett v. Cambria Steel Company.</p> <p>Trespass to recover damages for injuries to plaintiff’s health and property resulting from the maintenance of a dump, consisting of piles of burning refuse. Before O’Connoe, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,000.00 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing to enter judgment for defendant n. o. v.</p>

<p>Constitutional law — Constitution of Pennsylvania — Local and special legislation — Municipal claims — Boroughs — Grading and paving of streets — Act of May 12, 1911, P. L. 288 — Railroads— Liens against railroad property.</p> <p>1. Tbe Act of May 12, 1911, JP. L. 288, empowering boroughs to pave puKtuTstreets ancTto assess ¿""portion of the cost of the same on the owners of the properties abutting thereon, is not open to the objection that it is local, as it relates to all boroughs in the Commonwealth, or that it is special, as boroughs have frequently been recognized as proper subjects of classification, and is valid.</p> <p>2. The road bed and right of way of a railroad are exempt from assessment for municipal improvements, but such exemption does not extend to the stations, platforms, and other property of the railroad not absolutely necessary to the exercise of its franchises.</p> <p>3. The fact that a municipal lien for grading and paving, filed against the property of a railroad company may include ground on which is laid part of the roadbed and tracks of the railroad company, does not invalidate the lien. Judgment may be had on such a claim, but the purchaser at sheriff’s sale under the judgment, would take the land subject to the railroad company’s easement.</p> <p>4. In proceedings -against a railroad company for the enforcement of a municipal lien, it appeared that the lien included a strip of ground adjacent to the street, on which a station, shelter and platform were built, a portion of the right of way and tracks of the railroad company, ground occupied by a platform between the main and branch tracks and a track upon which dwelling houses, baggage rooms, and other buildings were located. The jury found a verdict for plaintiff for the amount of the claim, upon which judgment was entered. Defendant contended that more land was included in the claim than was subject to assessment and lien for street purposes. Held, that as the court would have control over any execution which might be issued on the judgment and as the purchaser at sheriff’s sale would only acquire title to that part of the land which was covered by the lien, subject to any easement of the railroad company it was unnecessary to decide whether too much land was embraced therein, and the judgment was affirmed: Philadelphia v. Philadelphia, Wilmington & Balto. R. R. Co., 33 Pa. 41, and Allegheny City v. West Penna. R. R. Co., 138 Pa. 375, distinguished.</p>

<p>Appeal, No. 37, Oct. T., 1915, by plaintiff, from- decree of O. P. Somerset Co., Equity Docket, 1912, No. 16, dismissing bill in equity in case of The Wilmore Coal Company v. Russel Holsopple.</p> <p>Bill in equity lor an injunction. Before Stephens, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court dismissed the hill. Plaintiff appealed.</p> <p>Errors assigned were the action of the court on exceptions and the decree of the court.</p>

Appeal, No. 234, Oct. T., 1915, by plaintiff, from judgment of C. P. Forest Co., Feb. T., 1914, No. 18, refusing to take off nonsuit in case of Warren Carll v. Frank K. Brown. Trespass to recover damages for personal injuries. Before Hinckley, P. J. The accident occurred in defendant’s lumber mill. Further facts appear by the opinion of the Supreme Court. The court entered a nonsuit which it subsequently refused to take off. Plaintiff appealed.

<p>Appeal, No. 86, Oct. T., 1915, by plaintiff, from judgment of C. P. Armstrong Co., March T., 1914, No. 104, for defendant n. o. v. in case of D. M. Peoples v. Pennsylvania Railroad Company, a corporation under the laws of Pennsylvania.</p> <p>Trespass to recover damages for personal injuries. Before King, P. J.</p> <p>The facts appear in the opinion of the Supreme Court,</p> <p>Verdict and judgment for plaintiff for $3,916.00. The court subsequently ordered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for .defendant n. o. v.</p>

<p>Wills — Construction—Parol evidence — Life estates in personal property — Absolute interest — Decedents’ estates — Duty of life ten ant'to enter security — Act of May 17,1871, P. L. 269.</p> <p>1. Where a testator bequeathed all of his estate “to my beloved wife so long as she remains my widow......., after her death I direct that my property be sold and the proceeds of my estate be divided equally, share and share alike among my children,” the wife took only an estate for life or until she should remarry and not an absolute interest in the personal property.</p> <p>2. Parol evidence as to what testator meant by “estate” was inadmissible as there was no ambiguity in the will.</p> <p>3. Where in such case, it appeared that the wife had been appointed executrix of the will, without bond, she was not thereby authorized to retain her share of the proceeds of the estate during her lifetime without giving security therefor, but could be required either to give security, or to deliver the estate to a trustee appointed by the court to hold the same for the purposes declared in the will.</p> <p>4. In such case, where the widow failed to give security for the protection of the remainder interests, and the court appointed a trustee, fixing a bond sufficient to cover any fund which might subsequently come into its hands from payments on account of uncollected assets, the decree on appeal was so modified as to allow the executrix a reasonable time to enter security, to be approved by the court, in which event she would be permitted to retain the fund, but if she failed to enter such security, she was directed to pay over the fund to the trustee in accordance with the decree of the lower court.</p>

<p>Appeal, No. 30, Oct. T., 1915, by defendant, from judgment of C. P. Westmoreland Co., Aug. Term, 1913, No. 38, on verdict for plaintiff, in case of David E. Swauger, Mrs. Anna Ringer, Wilbert T. Swauger, Mrs. Bessie M. Patty, Mrs. Laura B. Jobe, and Robert Roy Swauger v. Tbe Peoples Natural Gas Company.</p> <p>Trespass to recover damages for tbe death of plaintiff’s father. Before McConnell, J.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Verdict for plaintiffs for $2,000.00 and judgment tbereon. Defendant appealed.</p> <p>Errors assigned were answers to points, instructions to the jury and the refusal of the court to direct a verdict for defendant.</p>

<p>Negligence — Master and servant — Inexperienced employee — Duty to instruct — Goal cutting machine — Evidence—Exclusion—Reversible error.</p> <p>1. Tbe duty of a master to instruct an inexperienced employee in the use of dangerous machinery is personal and nothing but performance can relieve the master; if the duty is delegated to another the master still remains responsible for its proper performance by such person.</p> <p>2. The master is not required to give warning against such dangers as are open and apparent to the ordinary observer and the subject of common knowledge.</p> <p>3. Where in an action against a coal mining company to recover damages for the death of plaintiff’s husband, resulting from injuries sustained while operating a coal cutting machine, it appeared that deceased was inexperienced in the operation of such machines, that he was a foreigner who had been in defendant’s employ but two months and had been at work on such machine but four and a half days, during which time the only instruction he received was from the machine boss, who did not speak decedent’s language, and who visited and remained at the machine from but fifteen to thirty minutes several times a day, the court erred in entering a compulsory nonsuit and in rejecting plaintiff’s offers to prove the dangers incident to the operation of such machines and the extent of the instruction and training necessary, and that the instruction given deceased was insufficient.</p>

<p>Landlord and tenant — Lease of farm — Agreement to pay rental —Instructions to jury.</p> <p>1. In an action by the owner of a farm against the tenant thereof for the agreed rental, consisting of one-third of the proceeds of the crops, -where defendant admitted the tenancy but averred that the agreement as to the rental had been changed, so as to provide that defendant should retain all the proceeds of the crops, but should keep the property in repair, the trial judge was not in error in charging the jury that the burden was upon defendant to prove an actual binding contract under which plaintiff had waived his right to what was otherwise clearly his property.</p> <p>2. In such case, where there was evidence of disinterested witnesses as to statements made by the plaintiff to persons, not in any way representing the defendant, as to his understanding of the contract, it was not reversible error to charge the jury that such statements “are not so important. Loose talk when you come to consider contractual obligations, is of but little value,” when the trial judge did not undertake to characterize the testimony of the witnesses as being nothing more than loose talk, but left to the jury to consider whether or not it amounted to more than that. .</p>

Appeal, No. 173, Oct. T., 1915, by defendant, from judgment of O. P. Westmoreland Co., Aug. T., 1914, No. 805, on verdict for plaintiff in case of Amelia Brautegan and Adam Brautegan, for the use of his wife, Amelia Brautegan, v. Arthur R. Wilson. Ejectment for the recovery of a strip of ground claimed by plaintiff and occupied by buildings of defendant. Before Doty, P. J. The opinion of the Supreme Court states the facts.

<p>Appeal No. 88, Oct. T., 1915, by plaintiff, from order of C. P. Indiana Co., June T., 1913, No. 263, refusing to take off compulsory nonsuit, in case of Constantino Di Magnio v. Jefferson & Clearfield Coal and Iron Company.</p> <p>Trespass to recover damages for personal injuries. Before Telford, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 217, Oct. T., 1915, by E. O. Richey, James M. Lemon, Ada R. Stewart and Helen R. Moore, from decree of O. O. Indiana Co., Dec. T., 1914, No. 15, dismissing exceptions to adjudication, in Estate of James M. Richey, deceased.</p> <p>Exceptions to adjudication. Before Teleord, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. E. C. Richey, James M. Lemon, Ada R. Stewart and Helen R. Moore appealed.</p> <p>Errors assigned, among others, were in dismissing the exceptions.</p>

<p>Appeal, No. 239, Jan. T., 1915, by defendant, from judgment of O. and T., Huntingdon Co.? Sept. Sess., 1912, No. 9, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Frank Ronello.</p> <p>Indictment for murder. Before Woods, P. J.</p> <p>The facts appear in Commonwealth v. Ronello, 242 Pa. 381, and in the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder of the first degree upon which sentence of death was passed. Defendant appealed.</p> <p>Errors assigned were the charge to the jury, instructions to the jury, the refusal of the court to grant a continuance and the sentence of the court.</p>

<p>Street railways — Construction of power line — Authority—Charter-— Municipal ordinance — Bights of property owner — Bill in equity — Injunction.</p> <p>1. A street railway company is required to describe the route for its proposed railway in its application for a charter, naming the streets, highways and bridges over which it intends to construct, maintain and operate its railway; the franchise of the Commonwealth limits the railway company to the operation of the road on the route described in the charter.</p> <p>2. The Act of June 1,1907, P. L. 368, authorizing street railway companies to occupy lands for certain purposes, empowers such companies to construct transmission lines which may be divergent from the line of the railway, only where the routes for such lines are properly set forth in its charter route or in extensions thereof.</p> <p>3. A street railway company wag properly enjoined from constructing a transmission line to convey electric power, at the instance of a property owner affected, where on the hearing it showed as authority to construct such line an ordinance granting the consent of the local municipal authorities, but failed to show the essential prerequisite of authority from the Commonwealth designated in the company’s charter or in extensions to its charter route. In such ease the burden was upon the defendant to show that it had the right to construct the line.</p>

<p>Appeals, Nos. 181 and 182, Oct. T., 1915, by respective plaintiffs, from decrees of O. P. Lawrence Co., March T., 1915, Nos. 3 and 4, in equity, refusing injunctions, in cases of Robert Curry v. The Harmony Electric Company, a Corporation, and John M. Curry and Harry M. Curry, v. The Harmony Electric Company, a Corporation.</p> <p>Bills in equity for an injunction. Before Reiber, J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the injunction in each case. Plaintiffs appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law of the trial judge, and the decree of the court.</p>

<p>Contracts — Bids for public franchises — Withdrawal of bids— Contract for withdrawal — Illegality—Evidence—Written contracts —Illegal consideration.</p> <p>1. All agreements for pecuniary considerations to control the business operations of the government are void as against public policy, without reference to the question whether improper means are attempted or used in their execution; such transactions are condemned not so much for the harm done in any particular instance, as because of their general evil public tendency.</p> <p>2. Where any public right, franchise, contract or privilege is to be disposed of by government officials or agents, whether by a public letting, or awarding upon bids, or by the exercise of official discretion without public bids, public policy forbids that one competing applicant, candidate or bidder should contract for the ex-tinguishment of another’s competition, and such contracts, if made, are void.</p> <p>3. Where a written contract is attacked upon the ground that it is offensive to law and violative of public policy, the substance, not the form of the agreement, is looked at; the court will not confine its attention to the mere words in which it is expressed, but evidence aliunde the contract is admissible to prove the illegality of the consideration.</p> <p>4. Where the consideration of a contract is indivisible and a part is illegal, it falls as a whole.</p> <p>5. Under the Acts of Congress of August 18, 1894, c. 301, Sec. 4, 28 U. S. Stat. 372, 422, (2 U. S. Comp. Stat. 1935, Sec. 4685), June 11, 1896, c. 420, 29 U. S. Stat. 413, 434, (2 U. S. Comp. Stat. 1937, Sec. 4686), and March 3, 1901, c. 853, Sec. 3, 31 U. S. Stat. 1133, 1188, (2 U. S. Comp. Stat. 1937, Sec. 4687), relating to the reclamation of desert lands owned by the United States in various states, the state wherein such lands were located, and which accepted the provisions of said acts, were given a measure of control over the reclamation and disposition of such lands, so that the same could be settled. By appropriate legislation, the State of Idaho accepted said acts and established a complete system, for carrying out their provisions, whereby it was provided, inter alia, that the selection, management and disposal of said lands should be vested in a State Board of Land Commissioners. Said board was authorized to let contracts from the state for constructing irrigation works, upon application duly filed, and was vested with exclusive authority to grant or refuse any application. Two rival applicants filed competitive proposals with the State Board of Land Commissioners, for the reclamation of certain land; the granting of one of which applications meant the refusal of the other. While such applications were pending, one of the applicants orally agreed with the other to withdraw his bid for a consideration of $300,000. A written agreement, subsequently executed in Pennsylvania, provided not that the applicant should withdraw its proposal but should sell to the other its maps, plans, surveys, estimates and interest in its application for that sum. In accordance with the verbal arrangement the proposal was withdrawn and the contract was awarded to the other applicant, who paid the party withdrawing $25,000 on account. The plans, estimates, etc., were duly delivered. In an action for the balance due under the agreement, the court admitted parol evidence to show the circumstances under which the written contract was made, ruled that the consideration was illegal and the contract void as against public policy and entered judgment for defendant. Held, no error.</p> <p>Practice, O. P. — Trials without a jury — Act of April 187k, P. L. 109 — Findings of fact.</p> <p>6. Under the Act of April 22,1874, P. L. 109, providing- for trials by a judge without a jury, it is not necessary that the court shall specifically answer upon the record all the requests for findings of fact submitted by counsel, providing the findings cover the facts stated in the requests which are material to a proper determination of the case.</p>

<p>Beal property — Adjoining properties — Wall—Party wall — Joint use — Presumption—Unauthorized use — Equity—Injunction.</p> <p>1. Where two adjoining owners have made common use of a wall upon the land of one of them for more than twenty-one years, there is no presumption that such wall is a party wall, in the absence of record, or other evidence of the rights, under which the party not owning the wall, or his predecessor in title, made use thereof; the presumption is that it was by oral permission, a mere license, and that by continued use the license was ripened into an easement by prescription which must be restricted to the buildings existing at the time the easement was created.</p> <p>2. Where adjoining lot owners made common use for more than twenty-one years of á wall built entirely on the land of one of them, and subsequently the party on whose property the wall was built extended the wall and added to its height, the other party was thereafter properly restrained from using such extended wall for the support of joists and for other purposes in the course of the erection of an addition to her building.</p>

<p>Appeal, No. 29, Oct. T., 1915, by defendants, from judgment of O. P. Lawrence Co., March T., 1901, No. 89, on verdict for plaintiffs, in case of Western New York and Pennsylvania Railway Company and Pennsylvania Company v. Vulcan Foundry & Machine Company, Adrian Realty Company Intervening.</p> <p>Ejectment to recover land in Lawrence County. Before Hinckley, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiffs for the land in suit and judgment thereon. Defendants appealed.</p> <p>Errors assigned were rulings on evidence, instructions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 6, Oct. T., 1915, by plaintiff, from judgment of C. P. Butler Co., Dec. T., 1911, No. 47, on verdict for defendants, in case of Commonwealth of Pennsylvania at the suggestion and to the use of the Pittsburgh Brewing Company, a Corporation, v. James M. Cruikshank, Leslie P. Hazletfc and Blair Hooks.</p> <p>Assumpsit on an official bond. Before Reiber, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiffs appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for plaintiff.</p>

Appeal, No. 227, Oct. T., 1915, by New Castle Electric Company, from judgment of C. P. Lawrence Co., March T., 1914, No. 90, on verdict for plaintiff, in case of Hazel Hockenberry v. New Castle Electric Company, and Union Telephone Company. Trespass to recover damages for the death of plaintiff’s husband. Before Porter, P. J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $9,700, and judgment thereon. New Castle Electric Company appealed.

<p>Appeal, No. 82, Oct. T., 1915, by plaintiff, from order of O. P. Butler Co., June T., 1913, A. D. No. 10, refusing to permit an amendment, in case of W. C. McGinnis y. The Yalvoline Oil Works, Limited, a corporation.</p> <p>Trespass to recover damages for personal injuries.</p> <p>Motion for leave to amend tbe record and pleadings by changing the name of defendant from “The Valvoline Oil Works, Limited, a corporation,” to “The Yalvoline Oil Works, Limited, a partnership association.” Before Reiber, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the motion. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Contracts — Construction contracts — Extra work — Manholes— Cost — Recovery—Instructions to the jury.</p> <p>1. A contractor entered into a contract with a mining company for certain construction work, wherein it was provided that the contractor should undertake “any extra work that may be required by the engineer arising out of a modification of the plans and details that may appear necessary.” Attached to the contract were the plans and specifications on which the contractor had bid as well as a blue print calling for certain manholes which were not called for by the contract or specifications. At the request of defendant’s engineer plaintiff later built the manholes and brought an action to recover the cost thereof after he had been paid the amount of his original bid. There was testimony in the case tending to show that the blue print calling for the manholes was attached to the contract in order that they could be conveniently located in case the company should desire that they should be built. Defendant’s engineer testified that he regarded the manholes not as part of the original contract but as extra work and stated that he allowed plaintiff $182 therefor. Defendant requested the court to charge the jury that the manholes were part of the regular work contemplated by the contract and that the amount allowed by the engineer in payment therefor was a mere gratuity. The trial judge refused so to charge the jury. Held, no error.</p> <p>2. Where in such case, it was provided that the contractor should abide by the price or prices for extra work fixed by defendant’s engineer, “provided he commence work with a full knowledge of the same,” but where it appeared that the price was not fixed by the engineer before plaintiff undertook the work, and that plaintiff was finally told by the engineer to go ahead with the work and keep account of the cost, it was not error to permit the plaintiff to testify to the value and price of the work in connection with the construction of the manholes.</p> <p>3. Mere readiness to perform an accord or a tender of performance, or even part performance and readiness to perform the rest will not constitute accord and satisfaction as a defense to an action; it must appear that the matter agreed upon was accepted in satisfaction of the debt.</p> <p>4. Where in such ease, it appeared that plaintiff incurred extra expense on account of a mistake in the plans relative to elevation of the work, which each party claimed was owing to the fault of the other, the contention of defendant that everything involved had been amicably settled and adjusted by the agreement to pay plaintiff $400 was without merit, where it did not appear that plaintiff had accepted the $400 in satisfaction of his demand.</p> <p>5. In such case where it was provided that plaintiff should receive a bonus of $40 for each day the work should be completed prior to November 1, 1913, and should pay the defendant as liquidated damages a like sum for each day the work remained unfinished after that date, and twenty-five days beyond the time limit was required, the plaintiff’s liability under the contract was not absolute, without regard to the cause of the delay, and the trial judge properly charged the jury that if any of the delay was in consequence of plaintiff’s being required to do extra work, he would not be chargeable under the terms of the contract to this extent, and that defendant would be entitled to a set-off for delay if the jury should find that such “delay was due to plaintiff’s own neglect in completing the work.” The use of the word “neglect” did not necessarily import culpable misconduct on the part of the plaintiff and meant no.more than omission or failure.</p>

<p>Insurance — Accident insurance — Unsigned beneficiary supplement— Extra premium — Nonpayment — •Rebate — Act of May 8, 1909, P. L. Jf05 — Beneficiary clause — Construction—Death of beneficiary — Case for fury.</p> <p>1. Where a policy of insurance provides that no change therein should be valid unless endorsed by an officer of the company, and the policy with an unsigned supplement or rider attached is duly delivered to the insured, the supplement will be construed as part of the contract, notwithstanding any provisions to the contrary in the policy; the insurance company in such case will be taken to have waived the signing of'the supplement by an officer.</p> <p>2. A policy of accident insurance required the payment of thirty cents additional premium for beneficiary insurance, which was paid by the insured. Upon the expiration of the policy another was issued naming a consideration which included the additional premium charged for beneficiary insurance; subsequently the policy was annually renewed with a beneficiary clause attached as a rider, but the premium fixed in the policy did not include the extra sum charged for beneficiary insurance. In an action on the policy brought by the insured to recover fox the death of the beneficiary, it appeared that accident companies did not have a fixed schedule of rates for beneficiary insurance; that the lower rate was allowed plaintiff with the consent of the secretary of defendant company, and that the reduction was not made as an inducement to take out the insurance, as the policy had already been renewed. Held, that plaintiff was not precluded from recovery by the Act of May 3, 1909, P. L. 405, prohibiting the giving of any bonus or rebate not specified in the contract, as an inducement to persons to become insured.</p> <p>3. In such case it appeared that the beneficiary clause extended the policy so as to cover bodily injury to the beneficiary “in consequence of the burning of a building while said beneficiary is therein”; that plaintiff on the night of the accident, being awakened by a scream, went in the direction of his mother’s room and found the beneficiary, his sister, in the hall with her clothes on fire, that on entering his mother’s room he found the door and wall near the bed blazing, the lounge smoldering, and the carpet burned. It did not appear whether the fire was communicated to the beneficiary from the burning building or from the burning contents of the building. Plaintiff’s theory was that -beneficiary was burned in an unsuccessful attempt to reach her mother by fire communicated from the blazing walls. Defendant’s theory was that the mother’s clothing caught fire at the grate, and that the beneficiary was burned thereby, in her efforts to save her mother. Held, the question was not whether the circumstances exclude every other hypothesis, but whether they fairly supported the theory advanced by plaintiff and excluded by their preponderating weight the theory advanced by the defendant.</p> <p>Insurance — Notice of accident — Proof of loss — Delay—Reasonableness — Actions — Prematurity of action — Denial of liability — Waiver — Agency—Ratification—Case for jury.</p> <p>4. Where a policy of insurance requires immediate notice of loss to be given the company, the general rule of construction is that notice must be given within a reasonable time after the accident; what is reasonable must, necessarily, depend upon the facts and circumstances of each particular case.</p> <p>5. In such case, the policy required that “immediate” written notice be given the company of any accident for which indemnity was claimed, together with full particulars. It appeared that notice of loss was not mailed until almost three months after the accident; plaintiff testified that the policy was in the beneficiary’s possession and that all renewal receipts were given to her and that owing to the transfer of the policy, he did not know the name of the company carrying the insurance, or that the accident in question was covered by the policy, and that as soon as the policy was found, the company was notified. Held, that there was no such Unreasonable delay on plaintiff’s part in making search for the policy and in notifying defendant after finding it, as would warrant the court in declaring, as a matter of law, that plaintiff should not be permitted to recover.</p> <p>6. Where, in such case, the policy required that proof of loss be furnished within two months from the time when the loss occurred,' the fact that the proofs were not forwarded until twenty-four days after notice of the accident was sfent, did not necessarily preclude plaintiff from recovery, where it appeared that the proofs of loss were sent to defendant company as soon as plaintiff could obtain the signature of the physician who attended the beneficiary. As the policy did not expressly make the furnishing of proofs of loss within the stipulated time a condition precedent to the right of recovery, it was for the jury to determine whether the proofs of loss were furnished within a reasonable time.</p> <p>7. A provision in a policy of insurance, stipulating that legal proceedings should not be brought until three months from the day of filing proofs of loss at the company’s office, will not preclude recovery in an action brought within the three months from the filing of the proofs of loss, where it appears that the company denied liability on the policy prior to the expiration of the time stated.</p> <p>8. Where, in such case, it appeared that defendant’s attorney visited the scene of the fire, and subsequently informed plaintiff that “the company could not do anything for you” and that the company wrote plaintiff that “upon the report of our adjuster and reports of - investigations subsequently made, we cannot entertain your claim,” there was sufficient evidence to warrant the jury in finding that the agent was authorized to represent the company in denying liability on the policy within three months from the time of filing proofs of loss, or that the company ratified his denial of liability, if made without authority, and a judgment on a verdict for plaintiff, was affirmed.</p>

<p>Negligence — Townships — Highways— Unguarded declivities — Death — Proximate cause — Case for jury.</p> <p>In an action of trespass brought against a township for causing the death of plaintiff’s husband, it appeared that while deceased was driving up the approach to a bridge, on either side of which were abrupt and unguarded declivities, his horse became frightened from an unknown cause and backed the wagon over the declivity, causing the driver’s death; defendant contended that the unfastening of a trace was the proximate cause of the accident. A witness testified to a conversation with deceased after the accident when he was suffering great agony, in which he was alleged to have attributed the accident to the loose trace, not to the absence of a guard rail. The condition of the horse and wagon when found at the foot of the declivity did not bear out the theory of the unfastened trace. The trial judge left the case to the jury, charging that it was for them to say how much weight should be given to the alleged statement of the injured man prior to his decease. The jury by a special finding negatived the alleged loose trace as an element in the case and found a verdict for plaintiff upon which judgment was entered. Held, there was no reversible error.</p>

<p>Negligence■ — Master and servant — Proper appliances — Failure of servant to adjust appliances — Contributory negligence.</p> <p>1. Where work is of such a character that the environment of the servant necessarily undergoes frequent changes as the work progresses, the master is not bound to protect the servant against dangers resulting from such changes. It is not the duty of the master in such case to follow up the servant every moment to see that he makes the place safe; it is sufficient if he provides against such dangers as may possibly or probably arise and gives the workmen the means of protecting themselves.</p> <p>2. Where in an action to recover damages for personal injuries brought by an employee against a manufacturing company, it appeared that it was plaintiff’s duty to work upon a machine, access to which was had from a movable platform which he was required to adjust, that after finishing his work he stepped backward toward the platform, but through his failure properly to adjust it, he fell into an opening and suffered the injuries complained of, there was no evidence of defendant’s negligence to carry the case to the jury, and a point for binding instructions for defendant should have been affirmed.</p> <p>3. Where in such case it appeared that plaintiff could have avoided the accident by looking before he stepped backwards, and that the accident resulted from his failure so to do, he was guilty of contributory negligence as a matter of law.</p>

<p>Eminent domain — Railroads—Evidence—Strategic position of land — Damages—Measure of damages.</p> <p>1. Tbe measure of damages in eminent domain proceedings, where a part only of the property is taken, is the damage to the property as a whole; so much as belongs to the same proprietor and which is connected with the part taken and used for the same purposes, will in general, be held to constitute an entire holding.</p> <p>2. In proceedings to assess damages for land of a railroad company which had ceased to operate, and which land had been condemned by another railroad company, the admission in evidence of deeds covering a portion of the property of plaintiff, not included in the land appropriated by defendant, for the purpose of showing the extent of the property before the condemnation, as a continuous right of way, was not error.</p> <p>3. In such case, minutes of a railroad company from which plaintiff acquired title, concerning the purchase of certain rights of way, were admissible in evidence for the purpose of showing title in plaintiff, and also to show the extent of plaintiff’s holdings; it was not material that the minutes contained statements as to the valuation of the property, where they were not offered for the purpose of showing its value.</p> <p>4. In proceedings to condemn land for railroad purposes, for a bridge site, or for a reservoir or water-supply, it may be shown that the land has an especial availability which would render it of value to anyone who might wish to purchase it for such purposes, and the owner may insist upon this availability of his land for the particular purpose as an element in estimating its value.</p> <p>5. Where in such case, it appeared that plaintiff had lost its right to operate the railroad, the damages for taking the right of way were not thereby limited to the value of the ground for rural or agricultural purposes, and the court properly admitted evidence tending to show that the property as a whole occupied a strategic position, which was of probable value to others as well as to defendant by reason of its availability for the location and construction thereon of a line of electric or steam railway.</p> <p>Practice, Supreme Court — Appeals—Assignments of error — Rule 26 — Defective assignments.</p> <p>6. An assignment of error which raises questions' as to the relevancy of testimony offered and also as to the competency of witnesses, violates Rule 26, providing in effect that if any specification of error raises more than one distinct question,- it shall be considered a waiver of all the errors so alleged.</p>

<p>Appeal, No. 48, Oct. T., 1915, by defendant, for judgment of C. P. Beaver Co., June T., 1913, No. 119, on verdict for plaintiff, in case of John G. Snyder v. Union Drawn Steel Company.</p> <p>Trespass to recover damages for personal injuries. Before Holt, P. J.</p> <p>The opinion of the Supreme Court states tbe facts.</p> <p>Verdict for plaintiff for $1,750.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant, and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 2, Oct. T., 1915, by defendant, from order of C. P. Westmoreland Co., Aug. T., 1913, No. 113, refusing to open judgment, in case of Samuel N. Shields, Emily Shields, William Shields, Rachel M. Shields and Elizabeth Power v. James S. Hitchman.</p> <p>Rule to open judgment entered upon a bond by virtue of a warrant of attorney. Before Doty, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. Petitioner appealed.</p> <p>Error assigned, among others, was in discharging the rule.</p>

<p>Appeal, No. 16, Oct. T., 1915, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1912, Docket “C,” No. 2675, for defendant awarding certificate for amount of counterclaim set forth in affidavit of defense, in case Of Pittsburgh & Lake Erie Railroad Company v. Colonial Steel Company.</p> <p>Assumpsit for freight charges.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The affidavit of defense set up a counterclaim for $9,-088.42 and demanded a certificate for that amount. The court decided that the affidavit of defense was sufficient and entered judgment for defendant for the amount of the counterclaim. Plaintiff appealed.</p> <p>Error assigned, among others, was the judgment of the court.</p>

<p>Judgment — Opening of judgments — Defenses—Payment—Evidence — C orroboration.</p> <p>1. A farm was sold at sheriff's sale on a judgment entered on a judgment bond secured by a mortgage of the real estate sold. The judgment plaintiff purchased the property for the amount of the taxes and costs and subsequently issued an alias fi. fa. to' collect the judgment. Upon the application of the judgment defendant, the court opened the judgment and the defendant pleaded payment. The defendant testified, although contradicted, that on the day preceding the sale, plaintiff agreed with defendant that if he, plaintiff, should buy the farm, it would be in satisfaction of the debt, and that relying upon plaintiff’s statement, defendant absented himself from the sale and discontinued his efforts to raise money to pay the debt. The lower court charged the jury that in order to find for defendant they must find corroboration of the defendant’s ease. The jury found a verdict for defendant, upon which judgment was entered. Held, that from the inherent probability of willingness on the part of the plaintiff to accept the farm in satisfaction of the debt and from the fact that defendant remained away from the sale, manifestly to his detriment, the jury might find corroboration of the defendant’s case, and the judgment was affirmed.</p> <p>Practice, Supreme Court — Appeals—Instructions to jury.</p> <p>2. Where the charge taken as a whole is not erroneous or inadequate and presents the issues of fact fully, the Supreme Court will not reverse, although portions of the charge standing alone, may fairly and justly be open to criticism.</p>

<p>Appeal, No. 19, Oct. T., 1915, by plaintiff, from judgment of Superior Court, April T., 1914, No. 17, affirming order of C. P. Allegheny Co., July T., 1913, No. 968, discharging rule for judgment for want of a sufficient affidavit of defense, in case of Commonwealth of Pennsylvania, to use of Blanche Bruce, v. John J. Moran.</p> <p>Appeal from Superior Court.</p> <p>The facts appear, in the report of the case in 58 Pa. Superior Ct. 362.</p> <p>The opinion of the Superior Court, by Head, J., is as follows:</p> <p>In the Court of Quarter Sessions of Allegheny County one John Moran, Jr., entered a plea of guilty to a charge of fornication and bastardy and was sentenced to pay the usual fine, the costs of prosecution and $2.50 per week for five years for the maintenance of the child and to enter into a bond with surety in the sum of $500. The fine, costs and lying-in expenses were paid and the bond given with his father, John J. Moran, the present defendant, as surety. About a year later John Moran, Jr., the principal in the bond, died, having paid all of the $2.50 per week payments up to the date of his death. This suit was then begun in the name of the Commonwealth to the use of Blanche Bruce against the surety alone to recover from him or his estate — he having died since the action was begun — the weekly payments, specified in the sentence and bond, that had matured since the death of the principal.</p> <p>To the plaintiff’s statement the defendant demurred. There was no formal joinder of issue on the demurrer. The learned court below entered no judgment for either party, but being of opinion the question could be more satisfactorily reached after an answer, overruled the demurrer with leave to the defendant to file an affidavit of defense within fifteen days. The affidavit was filed and the plaintiff entered a rule for judgment for want of a sufficient affidavit. Prom the order discharging that rule this appeal was taken.</p> <p>Under the circumstances noted it must be apparent the order overruling the demurrer was not the equivalent of a final judgment for the plaintiff. The legal defense arising from the facts averred in the affidavit had not been finally adjudicated adversely to the defendant and the first position assumed by the appellant is untenable.</p> <p>Turning then to the main question involved, we may observe that although it has never reached an appellate court in Pennsylvania, we are not without the benefit of several adjudications of questions so closely connected with it as to be helpful in pointing the way to a correct-conclusion.</p> <p>Prior to the conviction and sentence of the putative father, no obligation to pay money to anybody rested on him which the law recognized as sufficient to support an action either by the mother of the child, by its guardian, by the Commonwealth, or any of its political subdivisions. His liability to pay money, therefore, was created by and resulted from the sentence of a criminal court following his conviction of a violation of the public law of the Commonwealth. That sentence was imposed by the authority of the Crimes Act of March 31,1860, P. L. 382. That statute provides that the convicted crimina} “shall be sentenced in addition to the fine aforesaid ......to give security......to perform such order for the maintenance of the said child as the court......shall direct and appoint.” The obligation of the convicted defendant to pay the money named, and to furnish the collateral security or the independent hostage for his performance of the sentence, are by the very terms of the statute an integral part of the sentence itself. It matters not the legislature saw fit to make the money, to the payment of which the defendant was sentenced, payable in installments extending over a period of years and appropriated it to the maintenance of the child. It would have been entirely competent for that body to have declared such defendant should be punished by a sentence directing him to pay a bulk sum of money to the mother of the child, to its guardian, or to the local poor authorities and then casting upon its recipient the duty of maintaining the child. We cannot adopt as sound then the contention of the appellant that the portion of the sentence fixing the sum to be paid and appropriating it to the maintenance of the child can be essentially differentiated from the remainder of the sentence.</p> <p>No such conclusion can be justly drawn from the case of Duncan v. Com., 4 S. & R. 449. In that case a defendant convicted of adultery and bastardy, when called for sentence, pleaded a pardon. The court, after an inspection of the executive act, determined it was a partial not a plenary pardon, and gave judgment accordingly. But in Com. v. Ahl, 43 Pa. 53, 61, the defendant was convicted of the offense of fornication and bastardy. Before sentence he obtained a plenary pardon from the executive which he pleaded in bar of any sentence. The learned court below was urged to determine that, notwithstanding the pardon, the defendant could still be lawfully ordered to pay a certain sum of money for the maintenance of the child. The court, after quoting the language of the act of clemency, said: “In using these words, the governor evidently intended that the pardon should set aside and annul the verdict and arrest the judgment. I cannot perceive how any vested right, order or decree can be founded upon, or flow from a conviction thus circumstanced. But the case of Com. v. Duncan, is cited as in point; there the adultery only was pardoned, and the bastardy specially excluded. But here everything is included — fornication, bastardy, offense and conviction — all pardoned. We therefore think there is nothing upon which we can found an order of maintenance.” The judgment was that the defendant go without day. In affirming that judgment Chief Justice Lowrie said: “The costs and the lying-in expenses, and the maintenance of the child, are essential parts of the sentence in such cases, and can be imposed only where sentence can lawfully be pronounced. The pardon prevents the sentence entirely, and therefore discharges from them as well as from any other consequence of the conviction.” There would seem to be no room for argument that if the pardon had followed the sentence, it would not have released every obligation imposed by that sentence on the defendant. But it is not the function of the executive in granting a pardon to extinguish debts due by the defendant which have their foundation in contract. It is difficult to see therefore how the fact that a defendant in a criminal case, who, in the performance of his sentence gave the bond required by it under the authority of the statute, has created a debt in the ordinary legal acceptation of that term.</p> <p>Again most of the states of the Union have either enacted statutes or adopted constitutional provisions prohibiting imprisonment for debt. Could a defendant, who had been sentenced by a criminal court to pay money in installments, successfully urge that he could not be coerced to pay them by imprisonment because they were simply debts flowing from a contract into which he entered when he signed the bond demanded by his sentence? In many states a negative answer has been made to this contention. The precedents are collected and reviewed in an elaborate note to the case of State of Tennessee v. Yardley, 95 Tenn. 546, reported in 34 L. R. A. 656. The principle running through the decisions of the various courts may be thus stated: “And the Ohio courts have held that the proceedings under the Ohio statute, whereby the father of an illegitimate child may be imprisoned to enforce the sentence and order of the court with respect to the child’s maintenance, are not in conflict with Section 15, Article I, of the Constitution of that state for the reason that the liability sought to be enforced is not founded upon a contract, express or implied, but originates in the wrongful act of the defendant, and therefore the imprisonment of the defendant in such a case is not contrary to the Constitution : Musser v. Stewart, 21 Ohio 353.” Following the reasoning in this line of cases, we would again reach the conclusion the defendant, who executed the bond as a part of the sentence imposed upon him by the Court of Quarter Sessions, did not thereby create a debt or a cause of action sounding in contract which under general law would survive his death.</p> <p>In State of Michigan v. Kemppanien, 163 Mich. 186, reported in 128 N. W. Repr. 183 and 30 L. R. A. (N. S.) 1166, a defendant, who had been convicted of fornication and bastardy and been denied a new trial, appealed to the Supreme Court. In the opinion, holding that there is nothing to survive the death of the defendant in such case, Mr. Justice McAlvay quotes the following language from the Supreme Court of Maine in McKenzie v. Lombard, 85 Me. 224, viz.: “The process, though held to be a civil proceeding, is criminal in form and is an extraordinary means to compel a father to assist in the support of his illegitimate child or suffer imprisonment for his neglect to do so. There is no fitness in the proceeding that would adapt itself to the principle of survivorship. If the impending action survives, then the cause of action would survive as well, and the process could be originally instituted against the administrator of the deceased.” The Michigan court thus proceeds: “Such a right of action would not survive at the common law. The true test was whether the injury on which the cause of action was based affected property rights or affected the person alone. In the former case the cause of action survived, while in the latter it abated. There is no statute in Michigan which provides for such survival. ......Upon the death of the defendant it abated, and this proceeding and the order and judgment brought here for review by reason thereof became of no force and effect.” See also Clements v. Durham, 52 N. C. 100. The courts of Indiana have held differently because the statute of that state provides that “In case of the death of the putative father of such child, either before or after the commencement of the prosecution, the right of action shall survive and may be prosecuted against the personal representatives of the deceased with like effect as if such father were living, except that no arrest of such personal representatives shall take place or bond be required.”</p> <p>In our own case of Com. v. Dunn, 57 Pa. Superior Ct. 162, we held that the death of the defendant after conviction and sentence and before the hearing of his appeal in this court, necessarily abated that appeal and ended the proceeding, and this would be true no matter how manifest the errors disclosed by the record which attended the entry of the judgment appealed from. Could the Commonwealth then, after the death of the sentenced defendant, successfully invoke the process of the courts to compel the performance by his heirs, his surety, or other person of that portion of his sentence which, by the interposition of an act of God, he was no longer able to perform? All of these lines of reasoning seem to converge to the support of the proposition that the death of one convicted in and sentenced by a criminal court worked a discharge of every obligation imposed by and rooted in his sentence.</p> <p>Was the undertaking of the surety broader than that of his principal? To state the question is almost to answer it. Let us for a moment turn our attention to the bond itself, upon which this action against the surety is based. It in the first instance acknowledges that both principal and surety are bound to the Commonwealth in the sum named, conditioned that if the said defendant who was sentenced to pay......and enter bond with surety in the sum of $500 comply without default, then this. obligation to be void, etc.” We have already attempted to show that by the execution of this bond the principal therein created no debt from which would spring a cause of action that would survive his death. Was his death with its consequences a default within the meaning of the bond? Sir William Blackstone, in defining the law relating to such obligation, says: “If the condition (of the bond) be possible at the time of making it and afterwards become impossible by the act of God, the act of law or the act of the obligee himself, there the penalty of the obligation is saved”; II. Blackstone Com. 341. If the bond in the present case had been conditioned for the appearance of the defendant at some future date, his intervening death would have rendered impossible the performance of the condition, but there would have been a default according to the letter of the bond. Yet we suppose it would not be seriously contended the surety in such case had created an absolute obligation to pay the money if the defendant did not appear, no matter what cause operated to prevent his appearance. We are of opinion the obligation in the present case did not essentially differ from the one in the illustration we have just used.</p> <p>When the act of God, that is the death of the defendant, made impossible his further compliance with the sentence of the criminal court, there was no default within the true meaning of the obligation entered into by the surety. The learned court below, in his opinion refusing to enter a summary judgment, relied largely on the case of City of Philadelphia v. Haslitt, reported in 14 Philadelphia 138. There a situation arose precisely like the one in the case at bar except that the bond given by the convicted defendant and his surety contained a warrant for the entry of a judgment and the warrant was immediately executed. The judgment remained dormant during the two years the principal lived because during that period he paid all of the installments required by the sentence and the bond. Later a fi. fa. was issued for the recovery of certain installments accruing after his death. A petition was filed by the surety setting forth the death of his principal and that by reason thereof no further proceedings could be lawfully taken against the surety. The rule which had been granted to open the judgment as against the surety was, after hearing and argument, made absolute. Of course the decision of the Court of Common Pleas of Philadelphia is not binding upon this court. But when it appears from the report of the case that the question was argued before two such justly distinguished jurists as the late Judge Hare and ex-Chief Justice Mitchell, their conclusion would certainly be persuasive evidence of what the law in such case would be. No opinion was filed but the arguments of counsel are reported in full and the interpellations of the judges clearly indicate the question before us was the one they regarded as controlling in reaching their conclusion. It is true the report shows that counsel opposing the rule also brought to the attention of the court that no affidavit had been filed showing the exact amount of the installments due before the execution issued. To this, however, but little attention seems to have been given in the argument, and reasonably so because it would be but an irregularity that could readily be cured by leave to file such affidavit nunc pro tunc.</p> <p>Because of the novelty of the question and the very able and earnest argument presented to us by counsel for the plaintiff, we have given the case most careful consideration and expressed our views at more than usual length. We are all of the opinion the learned court below reached a correct conclusion. If sound reason, good morals or wise policy demand a change in the legal status of the father of an illegitimate child, such change must be wrought by the legislative branch of the government. We but administer the law as we find it.</p> <p>As the plaintiff’s right to appeal in such a case is statutory, we must follow the order prescribed by the statute in such cases. The assignment of error is overruled.</p> <p>The Superior Court affirmed the order of the Court of Common Pleas, discharging the rule for judgment for want of a sufficient affidavit of defense. Plaintiff appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Negligence — Street railways — Automobiles—Automobile stalled on tracks — Collision—Contributory negligence.</p> <p>In an action against a street railway company to recover damages for personal injuries sustained as the result of a collision between one of defendant’s cars and an automobile stalled on the defendant’s tracks, judgment n. o. v. was properly entered for the defendant where it appeared that the night was dark and foggy, that the plaintiff remained in the automobile with the knowledge that it was on the street railway track, and that her chauffeur, who went back along the track for some distance, failed in his effort to stop the approaching car.</p>

<p>Appeals, Nos. 45, 63, 65, 66, 67 and 68, Oct. T., 1915, by John P. Weir, Daisy G. Weir Price, Robert MeP. Weir, Lulu May W. Loring, Wilson S. Weir and George S. Weir, Administrator of the Estate of Annie W. Weir, deceased, respectively, from decree of O. O. Allegheny Co., April T., 1914, No. 235, dismissing exceptions to trustee’s account, in Estate of James G. Weir, Deceased.</p> <p>Exceptions to trustee’s account. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. John P. Weir, Daisy G. Weir Price, Robert McP. Weir, Lulu May W. Loring, Wilson S. Weir and George S. Weir, administrator of tbe estate of Annie W. Weir, deceased, appealed.</p> <p>Error assigned was in dismissing tbe exceptions.</p>

<p>Appeal, No. 64, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1912, No. 1126, on verdict for plaintiff, in case of Harry W. Elmer v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Macfarlane, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,500.00 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>Negligence — Master and servant — Defective machinery — Contributory negligence — Nonsuit.</p> <p>1. To do an act necessary to the duties of a workman’s employment in a way which is obviously dangerous, when the act can be performed in another way known to the workman, which is reasonably safe, is contributory negligence, which will bar recovery even though the employer may also have been negligent.</p> <p>2. Where in an action for injuries sustained by an employee caused by the unexpected “repeating” of a defective. machine for punching holes in certain steel boxes, it appeared that plaintiff who was an experienced workman and fully understood the operation of the machine, while removing a perforated box, took hold of it at the bottom, thereby placing his hand under the die, when he knew the safer and usual way to remove the box was by taking hold of it at the side, he was guilty of contributory negligence, and a compulsory nonsuit was properly entered: Solt v. Williamsport Radiator Co., 231 Pa. 585, followed.</p>

<p>Negligence — Street railways — Pedestrian on track — Contributory negligence — Case for jury.</p> <p>1. Where the credibility of witnesses is in issue the case is always for the jury. The preponderance of evidence depends upon the credibility and not the number of witnesses and there will be no reversal on appeal although the weight of the evidence is with the appellant.</p> <p>2. The remedy for the wilful or capricious disregard of testimony by the jury is the granting of a new trial.</p> <p>3. In an action against a street railway company to recover damages for personal injuries sustained by plaintiff in consequence of being struck by one of defendant’s cars, the case is for the jury and a verdict for the plaintiff will be sustained where there was a conflict of evidence as to whether plaintiff at the time was walking on the tracks or lying thereon in a sick or intoxicated condition; and where the evidence was conflicting as to whether or not there was a reasonably safe place to walk beside the company’s tracks at the place of the accident; and plaintiff’s own testimony was apparently contradictory as to the point on the railway at which the accident occurred, and as to whether there was a reasonably safe sidewalk which he could have used at that place.</p>

<p>Receivers — Contracts — Individual liability of receiver — Judgment for defendant n. o. v.</p> <p>In an action against a trust company, wbieb had been appointed receiver of a certain corporation, to recover for services rendered such corporation, judgment was properly entered for defendant n. o. v. where the written evidence in the case clearly established that the contract was made with defendant in its capacity of receiver.</p>

<p>Appeal, No. 105, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1915, No. 222, for plaintiff for want of a sufficient affidavit of defense, in case of Percy E. Donner, Clinton L. Childs and Charles W. Woods, Co-Partners as Donner, Childs & Woods, v. Hugh R. Sackett.</p> <p>Assumpsit for money paid to defendant under a mistake of fact.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Shafer, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made absolute plaintiffs’ rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 106, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1912, No. 769, on verdict for plaintiff, in case of First National Bank of Birmingham, a Corporation Under the Laws of the United States, v. Fidelity Title & Trust Company, Administrator of Samuel B. Walton, Deceased.</p> <p>Assumpsit on two promissory notes. Before Cohen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $27,613.02 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury and the judgment of the court.</p>

<p>Practice, Supreme Gourt — Appeals — Assignable error — Order granting new trial — Judicial discretion — Proper exercise.</p> <p>1. The Supreme Court has power to entertain an appeal from an order granting a new trial, but this power is to be exercised only in clear cases of abuse of discretion on the part of the trial court. The court can abuse its discretionary power as to the law as well as to the facts in passing upon an application for a new trial, and when a new trial is based on a plain and palpable error of law applicable to the facts of the case, it is such an abuse of discretion as will warrant a reversal.</p> <p>2. In an action on a promissory note, endorsed by defendant’s decedent, and discounted by plaintiff for a brokerage firm, it appeared that at the time the firm received the proceeds of the note it gave the endorser a note for like amount with certificates of stock in a coal company, as collateral security; that at the time of trial the note had disappeared, and the stock was in the possession of plaintiff, but was not held by it as collateral for any loan; that the value of the stock at the time it was delivered was sufficient to secure payment of the note given by the firm, but that at the time of trial it had no value. The court charged the jury that defendant was chargeable with the value of any securities the endorser of the note may have received to protect him on his signature to the note at the value which these securities had at the time they were delivered. The lower court granted a new trial on the ground that the instructions were erroneous. Held, that the question whether such instructions were correct depended upon all the facts of the case, not the least important of which were the provisions of the collateral note which was not in evidence; that there were unquestionably other facts than those disclosed by the record which should have appeared before the Supreme Court could determine, as a matter of law, that the court in banc abused its discretion in holding that the instructions were erroneous, and the order was affirmed.</p>

<p>Appeal, No. 124, Oct. T., 1915, by Ella B. Crider, from final order of the District Court, now Common Pleas Court, Allegheny Co., July T., 1871, No. 3, discharging rule to set aside a, verdict in an action of ejectment, in case of John Crider, et al., v. William H. Crider.</p> <p>Buie to vacate a judgment and set aside a verdict rendered by agreement in an action of ejectment. Before Macfarlane, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged the rule. Ella B. Crider appealed.</p> <p>Error assigned was in discharging the rule.</p>

<p>Corporations — Mismanagement■ — -Losses — Bill for accounting against treasurer — Dismissal of till — Equity.</p> <p>Where'in a suit in equity brought by the receiver of a corporation to compel the former treasurer to account for money and property -which had come into his hands, it appeared that under the by-laws, the directors, not the treasurer, controlled the business of the company, that defendant’s accounts were accurately kept, and that the losses complained of resulted from the acts of employees, not under defendant’s supervision, but under that of the board of directors; and the evidence failed to show that defendant had failed to account for any moneys which had come into his custody or that he had improperly disbursed any of such money, the bill was properly dismissed.</p>

<p>Appeal, No. 42, Oct. T., 1915, by plaintiff, from decree of O. P. Allegheny Co., April T., 1913, No. 2463, Docket “C,” dismissing bill in equity for an injunction, in case of Duquesne Light Company, a Corporation, v. City of Pittsburgh, a Municipal Corporation.</p> <p>Bill in equity for an injunction to restrain the municipal authorities from enforcing the provisions of a municipal ordinance. Before Cohen, J.</p> <p>The ordinance in question was as follows:</p> <p>AN ORDINANCE.</p> <p>Requiring all public service corporations or other persons occupying Main street, from West Carson street to Mansfield avenue; and Wabash avenue, from Steuben street to Independence street, for furnishing electric light, heat or power to the public or operating telegraph or telephone lines, to place their cables underground, and prescribing regulations therefor and giving the city the right to use the underground systems constructed under this ordinance.</p> <p>Whereas, The City of Pittsburgh is improving, by grading, paving and curbing or otherwise, Main street from West Carson street to Mansfield avenue and Wabash avenue from Steuben street to Independence street, on which streets there are maintained overhead poles or wires, and,</p> <p>Whereas, It is now deemed advisable to have said poles or wires on these certain Streets placed under ground and to provide at the time such streets are being improved underground conduits or other means whereby said overhead wire may, at a later time, be placed underground, without tearing up or disturbing said streets, therefore,</p> <p>Section 1. Be it ordained and enacted by the City of Pittsburgh, in council assembled, and it is hereby ordained and enacted by the authority of the same, That all public service corporations and other corporations or persons having overhead poles or wires along the following streets in the City of Pittsburgh be and they are hereby directed and required to construct conduits on said streets and to complete same before the work of completing the improvements on said streets now proposed by the City of Pittsburgh is completed:</p> <p>Main street from West Carson street to Mansfield avenue, Wabash avenue from Steuben street to Independence street.</p> <p>Section 2. That all public service corporations and other corporations or persons having overhead poles or wires on the aforesaid streets shall have the right to erect and maintain terminal poles or other devices within the limits of each block and overhead cables or wires may be distributed from such terminal poles or other devices to such places within such block as consumers may require; but no overhead cable or wires shall be constructed or maintained between the terminal pole or device in one block and any such terminal pole or device in another block!</p> <p>Section 3. That all public service corporations and other corporations or persons having overhead poles or wires on any of the aforesaid streets shall, upon the removal of such poles and wires, repair in good order the sidewalks and paving of said streets under the direction and to the satisfaction of the Director of the Department of Public Works of the City of Pittsburgh.</p> <p>Section 4. Where the city has any of its lines upon any poles required to' be removed under this ordinance, the companies owning or maintaining said poles shall first remove their own lines and wires from such poles and place the same underground, and when that is done the city shall remove its lines and wires from said poles and place the same in the conduit, and thereupon the companies owning and maintaining the poles shall immediately remove the same and restore the highway to its original condition.</p> <p>Section 5. The City of Pittsburgh shall at all times have the right and power to place, use and operate within any such underground conduit or subway such wires, cables, devices and apparatus as may be necessary for use of the bureau of electricity of said city for fire alarm, light, police or call system purposes, and at any and all times replace, alter, repair and maintain the same.</p> <p>Section 6. The entire system of every such company and all the devices, means, appliances and apparatus and every part thereof of such corporation in so far as the same may affect, relate to or endanger the safety, of the public or the police and fire apparatus lines of said city shall at all times be open to the inspection and be under the supervision and subject to the approval and control of the director of, the department of public safety.</p> <p>Section 7. Any violations of the provisions of this ordinance shall subject the person or persons so offending to a fine or penalty of not less than $5.00 nor more than $20.00.</p> <p>Every day on which said person or persons shall fail to comply with the provisions of this ordinance shall constitute a separate offense and all such fines and penalties shall be recovered with costs to be collected as fines are now collected by law. Provided, however, that no person or persons shall be liable to fine under the provisions of this ordinance if interfered with in complying with the requirements of this ordinance by any act of the City of Pittsburgh, whether failure to make or complete the improvements proposed on said streets or otherwise, and the Director of the Department of Public Works of the City of Pittsburgh is hereby authorized and directed to extend the time in which said overhead wires are to be placed underground as may be necessary on account of delays in undertaking or completing the said improvements on said streets of the City of Pittsburgh.</p> <p>Section 8. That any ordinance or part of ordinance conflicting with the provisions of this ordinance be and the same is hereby repealed so far as the same affects this ordinance.</p> <p>. Other facts appear in the opinion of the Supreme Court.</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were various findings of fact and law and the decree of the court.</p>

<p>Appeal, No. 135, Oct. T., 1915, by plaintiff, from final order of C. P. Allegheny Co., Jan. T:, 1913, No. 104, refusing to take off compulsory nonsuit in case of James H. Lyons y. Peoples Savings Bank.</p> <p>Trespass to recover damages for personal injuries. Before O’Conner, J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a compulsory nonsuit, which the court subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 149, Oct. T., 1915, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 2591, on verdict for plaintiff, in case of George A. Leonhardt v. James P. Green.</p> <p>Trespass to recover damages for personal injuries. Before Brown, J.</p> <p>The opinion of the Supreme Court states the facts.;</p> <p>Yerdict for plaintiff for $3,000.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n. o. v. and instructions to the jury.</p>

<p>Appeal, No. 151, Oct. T., 1915, by Commonwealth Trust Company of Pittsburgh, Guardian Ad Litem for Catarina J. Kountz, Carolina V. Kountz, George J. Kountz, Maria E. Kountz, Austin Kountz, minor children of Albert J. Kountz, deceased, from decree of C. P. Allegheny Co., Jan. T., 1913, No. 2730, dismissing exceptions to auditor’s report, In Re First Account of Safe Deposit and Trust Company of Pittsburgh, Trustee, under Deed of Trust from Peninah W. Kountz.</p> <p>Exceptions to auditor’s report. Before Swearingen, J.</p> <p>From the record it appeared that Peninah W. Kountz, on January 8, 1898, delivered bonds of the face value of $42,000.00 to the Safe Deposit & Trust Company of Pittsburgh, in trust to be held as provided in the following deed:</p> <p>This indenture, made this first day of January, A. D. 1898, between Peninah W. Kountz, wife of William J. Kountz, of Allegheny City, Pennsylvania, party of the first part; and The Safe Deposit and Trust Company, a corporation of Pittsburgh, said State, party of the second part, witnesseth:</p> <p>First. That said first party, for and in consideration of natural love and affection, as well as to secure against the vicissitudes of fortune to each beneficiary hereinafter designated, a moderate periodical income for his or her personal support and maintenance, has, as a special deposit, entrusted to said second party, and its successors, forty-two (42) one thousand ($1,000) dollar one hundred year bonds of The United Traction Company, of said Pittsburgh, said bonds being numbered from 3153 to 3194, both insclusive, for the purposes hereinafter specified, and no other, that is to say:</p> <p>Second. That said second party will regularly and promptly collect the interest payable upon said bonds, and on or before the fourth day of the month in which the same is received, and on or before the fourth of each month thereafter for the five months succeeding — will-pay over one-seventh of said interest, in equal portions, to the following persons, namely:</p> <p>Caroline K. Jones, wife of Thaddeus C. Jones; Katherine K. Fitch, wife of William H. Fitch; Luella B. Kountz; Mary K. Backus, wife of Raymond B. Backus; William Kountz, Jr., and George McC. Kountz — sons and daughters of said first party; and Albert J. Kountz, son of said William J. Kountz, Sr.</p> <p>Third. Should any son die without leaving wife or child, or should any daughter die without leaving husband or child, that son’s or that daughter’s share of both principal and interest shall go to increase the shares of the survivors.</p> <p>Fourth. Should any daughter die without leaving a child, her husband, so long as he remains unmarried and of good character, shall receive the interest on her portion, and after his death or marriage, the interest shall be paid in equal parts to the other surviving children and to their respective children — the latter to receive equally the parent’s portion.</p> <p>Fifth. Should any of the said sons die without leaving a child, his wife, so long as she remains unmarried and of good character, shall receive the interest on his portion, and after her death or marriage the interest shall be paid in equal parts to the surviving children and to their respective children — the latter to receive equally the parent’s portion.</p> <p>Sixth. After the death of the last survivor of the seven children, the interest on the principal shall be equally divided among all of the grandchildren, until ten years after the youngest shall have, become of age, whereupon the principal shall be equally divided among them to be theirs absolutely, to do with as to each may seem best.</p> <p>Seventh. No portion of the fund hereby set apart shall be subject, by any device or evasion, or from any point of view, to the control, dictation, engagement, debt or liability of any beneficiary; nor shall any one’s share be subject to attachment or execution upon any account whatever.</p> <p>Eighth. No beneficiary shall ever be paid interest by way of anticipation or advance payment before the same shall have become regularly due and payable.</p> <p>Ninth. The said trustee, or its successor, acting by itself individually or in concert with other bondholders, shall have full power by every lawful means to enforce payment of interest due upon said bonds; and at all times may and shall assert generally, complete and unrestricted rights of ownership respecting said bonds themselves, until such time as the same may be divided among the grandchildren.</p> <p>Tenth. Prior to each interest day (January and July first), each beneficiary shall furnish the trustee with his or her postoffice address; in the absence of which special notification, each person’s last address 'shall be considered his or her then residence.</p> <p>Eleventh. This trust, which is deliberately established after due reflection, shall be accepted by and be executed by the said trustee as irrevocable on my part, or by my executor, administrator, husband or heirs.</p> <p>(Signed) Peninah W. Kountz, [seal]</p> <p>The auditor held that the deed of trust was void and recommended that the corpus of the trust be distributed to the heirs at law of Peninah W. Kountz.</p> <p>The court dismissed the exceptions to the auditor’s report. The Commonwealth Trust Company of Pittsburgh, guardian ad litem, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Evidence — Admissions—Statements in other proceedings — “Admission of governing fact” — Case for jury.</p> <p>1. While an -unqualified admission by a plaintiff of the existence of a governing fact not contradicted or explained after opportunity afforded, may be sufficient to warrant binding instructions, a mere expression of opinion with respect to a question of legal liability without any statement of the facts upon which such conclusion was based cannot be regarded as an unqualified admission of the existence of a governing fact.</p> <p>2. Where in an action against a bridge company on interest coupons detached from, bonds the defense was that, as between defendant and plaintiff’s decedent, the coupons were accommodation paper against the payment of which the latter had agreed to protect the former, and there was no direct evidence in support of the contention, but chief reliance was placed on the testimony of plaintiff’s decedent in an equity proceeding brought by him against a third person who had been associated with him in financing the bridge enterprise, wherein he said that he did not consider that he had any right of action against the bridge company for these coupons and that when the then pending litigation was settled he would turn the coupons over to the bridge company, the statement was not an unqualified admission of a governing fact, such as would have warranted the court in withdrawing the case from the jury.</p> <p>Corporations — Bonds—Coupons—Detached coupons — Statute of limitations — Case for jury.</p> <p>3. Interest coupons are' specialties partaking equally with the bond in the privileges and securities of the latter, whether attached or severed; when coupons are detached from the bonds to which they were formerly annexed, they do not thereby become simple contract debts, and as to the period of limitations, they are governed by the same rules as other sealed instruments.</p> <p>4. An action was brought on interest coupons which had fallen due and which had been detached from the bonds more than six years before the action was brought. Defendant contended that recovery was barred by the statute of limitations and requested binding instructions in its behalf. The trial judge ruled that the statute of limitations did not apply and submitted the case to the jury, which found a verdict for plaintiff, upon which judgment was entered. Held, no error.</p>

<p>Appeal, No. 205, Oct. T., 1915, by defendant, from judgment of O. P. Allegheny Co., July T., 1913, No. 1589, on verdict for plaintiff, in case of U. G. Miller v. Republic Chemical Company.</p> <p>Trespass to recover damages for personal injuries. Before Shafer, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

Appeal, No. 157, Oct. T., 1915, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 530, on verdict for plaintiff, in case of M. S. Stewart v. E. Daisy Hagerty. Trespass to recover damages for the alienation of the affections of plaintiff’s husband. Before Evans, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $15,000.00 and judgment thereon. Defendant appealed.

Appeal, No. 159, Oct. T., 1915, by plaintiff, from decree of O. P. Allegheny Co., Oct. T., 1913, No. 2432, refusing an injunction, in case of Duquesne Light Company v. Harry Duff. Bill in equity for an injunction to restrain defendant from interfering with plaintiff in the erection of poles in front of defendant’s land. Before Shaper, P. J. The opinion of the Supreme Court states the facts. The court on final hearing refused the injunction and dismissed the bill.

<p>Appeal, No. 164, Oct. T., 1915, by Aline L. Eabe, executrix and residuary legatee, from decree of O. O. Allegheny Co., June T., 1914, No. 137, on bill of review, In re Estate of Prank Pearson, Deceased.</p> <p>Bill of review for the reopening of an adjudication.</p> <p>The facts appear in the following opinion of Trimble, J.:</p> <p>The question involved is whether a legacy bears interest, and, if so, whether it accrues from the date of the death of the testator, or from one year thereafter.</p> <p>Prank Pearson executed his last will and testament on the 28th of November, 1906, and died October 6,1907.</p> <p>The eleventh paragraph of his will is:</p> <p>“I give, devise and bequeath to my executors and trustees the sum of five thousand ($5,000) dollars, to be held in trust for my niece, Maud Pearson, said sum to be paid by my executors and trustees at their discretion, and as they may determine to be for her advantage, for her education and maintenance, or to start her in business.”</p> <p>The debts were all paid before the final account was filed, and it shows a balance far in excess of any sum necessary to pay the legacies.</p> <p>Before the audit of the final account the Sewickley Valley Trust Company was appointed guardian of Maud Pearson, who is about twelve years old; but her guardian had no notice of the audit, except the formal advertisement. At the audit the guardian did not appear; but the decedent’s widow who is the residuary legatee, opposed the payment of any interest on the legacy given to the testator’s niece. A decree was entered by which the amount of legacy, without interest and less the collateral inheritance tax, was awarded to the guardian on July 14, 1914. After making fruitless efforts with the representatives of the estate to adjust the interest, the guardian filed a bill of review on January 22, 1915, praying that the decree of July 14, 1914, be opened and for such other order respecting the trust fund as the minor is entitled to have made, and as to justice and equity appertains.</p> <p>The legacy to Maud Pearson is vested. It is not dependent upon a time and event which controls the payment, and therefore contingent, as illustrated in Duffey v. Presbyterian Congregation of Bellefonte, 48 Pa. 46, and since it is not a contingent legacy, interest has accrued on it from the time when the legacy fell due. If the time of payment is not deferred, as in Gunning’s Estate (No. 3), 234 Pa. 148, the interest will be payable either from the date of the testator’s death, or one year thereafter, depending upon the relation in which the donor stood, or which he assumed toward the object of his bounty: Jacoby’s Est., 204 Pa. 188. If the legacy is a mere benefaction, uncoupled from an intention to maintain or educate the legatee the interest will begin to run from one year after the death of the testator; but if he assumed to stand in loco parentis to the child, it will accrue 'from the date of his death. There is no doubt that it is. not payable at the convenience of the executors. It is payable absolutely, but at the trustees’ discretion, as they may determine to be for the advantage of the legatee, and for her education and maintenance, or to start her in business. The trustees were obliged to pay, and the discretion with which they were invested was legal and not arbitrary. While the court will not substitute their discretion for that of the trustees, nevertheless it is an imperative power; it is legal and not capricious, and must be honestly and reasonably exercised, and when there is an abuse, the courts will correct it: See note to Section 511, 2d Yol., 6th Ed., Perry on Trusts and Trustees; and Gochenauer v. Froelich, 8 Watts 19, 23, where in construing a discretionary power the Supreme Court • said: There are cases where a claimant is entitled to the whole of his demand, as much as to any part of it; and there are cases where a part may properly be allowed and not the whole.” “A person in loco parentis to a child is a person who means to put himself in the situation of a lawful father of the child with reference to the father’s office and duty of making provision for the child”: Robinson’s Est., 35 Pa. Superior Ct. 192. In this case the testator’s nephew received a legacy upon which interest was allowed from the testator’s death. See also Cooper v. Scott, 62 Pa. 139 j Seibert’s App., 19 Pa. 49, and Corbin v. Wilson, 2 Ashmead 178, where it is said that the intention of the testator to stand in loco parentis must be gathered from the whole will.</p> <p>Maud Pearson was about five years old when her uncle died and left her this legacy. The purpose of the gift, shown by his unequivocal language, was inspired by a solicitude for her nothing less than parental. “For her education, maintenance, or to start her in business” were his own words in directing how the trustees should spend the legacy. He not only makes the gift, but shows his anxiety for the child’s future, by directing its expenditure in the essentials of life; by his own language he places himself in loco parentis to this young girl, and the result is that the legacy given to her will bear interest from the date of his death.</p> <p>It is not tenable to argue that interest is not payable because the estate did not have sufficient funds to pay the same until a long time after the death of the testator, for in Huston’s App., 9 Watts 472, 477, itis said: “Even though a legacy is to come out of a part of the testator’s estate which cannot be recovered for a long time after the year, and the testator directs the legacy to be paid when the money which is to constitute it can be recovered, still the payment of interest, if practicable, or at least the computation of it, will commence from the end of the year after the testator’s death.”</p> <p>The court awarded the relief prayed for in the bill. Aline L. Rabe, executrix and residuary legatee, appealed.</p> <p>Error’assigned was the decree of the court.</p>

Appeal, No. 180, Oct. T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1918, No. 841, for defendant n. o. v., in case of Thomas Chambers v. The Mesta Machine Company, a Corporation. Trespass to recover damages for personal injuries. Before Miller, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,500.00 and judgment thereon.