Volume 253 — Pennsylvania State Reports

Appeal, No. 6, Oct. T., 1916, by Martha Pressel, from decree of O. O. Allegheny Co., June T., 1915, No. 72, dismissing exceptions to adjudication, in Estate of David P. Reighard, Deceased. Exceptions to adjudication.

<p>Negligence — Railroads—Fires—Cause of fire — Sparlcs from engine — Fvidence—Sufficiency—Case for jury.</p> <p>1. In an action against a railroad company for the destruction by fire, of buildings, in close proximity to railroad tracks, the plaintiff may rely upon circumstantial evidence, and is entitled to have that evidence submitted to the jury, if it tends to show that it was possible for the fire to have originated from sparks negligently permitted to escape from defendant’s engines, that the fire probably originated from that cause, and that there was no other probable cause of the fire.</p> <p>2. In such ease a verdict for the plaintiff will be sustained, where there was evidence that the fire originated on the outside of plaintiffs’ fence next to the railroad, that at that point there was a heavy grade, and that during two weeks previous to the fire defendant’s locomotives were seen to throw out sparks many of which were larger than could pass through a spark arrester in proper condition and repair, and that such sparks when the wind was from the direction of the railroad, would be blown upon plaintiffs’ buildings; but there was no evidence that the .sparks were seen to have been thrown by locomotives on the day of the fire, and no evidence indicating any other probable cause of the fire on the day upon which it occurred.</p> <p>8. If the particular engine cannot be identified, evidence is admissible that other engines of the defendant set fires or threw igniting sparks equally far at other times within a reasonable period, and at other places in the vicinity along the line,. without proof that such engines were similarly constructed and operated, and without confining it to the exact time or day of the fire in question.</p> <p>4. In such ease the court did not err in permitting a detective employed by the plaintiff to investigate the cause of the fire, to testify that four days after the fire he saw defendant’s locomotive of a certain number, passing plaintiff’s premises and casting out large sparks, some of which fell on plaintiff’s property, and that twelve days thereafter, he saw the same locomotive in defendant’s shop in another city, and saw holes which had been burned in the Screen, one two inches and the other three and a half inches in diameter.</p> <p>5. In such case the affirmance of an irrelevant point submitted by plaintiffs, referring to the dropping of burning coals upon the roadbed, was not reversible error, where the trial judge clearly instructed the jury that the question for them to determine was whether they believed the probable cause of the fire was a spark emitted from the stacks of an engine of the defendant company, larger than would pass through a spark arrester in good order and condition, and from a locomotive operated in an ordinary and proper manner.</p> <p>Practice, O. P. — Trials—Beading testimony to jury — Court and jury — New trial — After-discovered evidence.</p> <p>6. In such case it was not reversible error for the trial judge to read his notes of testimony to the jury, where he clearly instructed them that they were not to be bound by his recollection of the testimony, but must decide the case on their own recollection thereof.</p> <p>1. Where in such ease the trial lasted nine days, and the jury after retiring returned to the court, and announced a disagreement, it was not reversible error for the trial judge to send the jury to the jury room, instructing them that in view of the length of the trial, and the amount of testimony, it would be unfortunate if they could not arrive at a verdict.</p> <p>8. The refusal of the court below to grant a new trial on the ground of after-discovered evidence, will not be reviewed in the absence of clear error.</p>

<p>Appeal, No. 274, Jan. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1914, No. 2443, on verdict for plaintiff, in case of Mary McDonald v. The Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, J.</p> <p>From the record it appears that there was evidence that the plaintiff, Mary McDonald, on September 23, 1914, was injured in an attempt to cross the tracks of the defendant railroad company running along Gray’s Ferry Road at 31st street, in the City of Philadelphia. She proceeded west on Gray’s Ferry Road to 31st street, where the defendant company maintained a regular crossing constructed of planks. When she arrived upon the tracks of the railroad upon this regular foot crossing she stopped, and at that time there was an engine standing eight or ten feet or more away from her. The gates were up when she started to cross. A brakeman on top of a car hack of the engine signalled her with his hands to cross in front of the engine. - She started to cross and, as she was committed to the act o-f crossing, the engine started without warning and struck her and knocked her into the middle of 31st street.</p> <p>Verdict for plaintiff for $20,000.00, which the court reduced to $15,000, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n. o. v. and in refusing defendant’s motion for a new trial.</p>

<p>Appeal, No. 354, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., March T., 1907, No. 4961, on verdict for plaintiff, in case of The Philadelphia Hardware and Malleable Iron Works v. City of Philadelphia.</p> <p>Appeal from award of a jury of view in condemnation proceedings. Before Audenried, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,250.00 and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Appeal, No. 280, Jan. T., 1915, by defendant, from sentence of O. & T. Philadelphia Co., April T., 1915, No. 5, on verdict of guilty of murder of the first degree, in case of Commonwealth of Pennsylvania v. Jacob Miller.</p> <p>Indictment for murder. Before Ralston, J.</p> <p>From the record it appeared that prior to March 25, 1915, the defendant, Miller, had been charged with the larceny of certain goods, the property of one Mrs. Berg-doll, and a warrant had been issued for his arrest.</p> <p>The warrant had been given to Detective Harry E. Tucker for the purpose of arresting Miller. In the evening of March 25, 1915, Detective Tucker, in company with Detective Maneely, went to the home of Charles Pfeil, at 2242 East Cambria street, Philadelphia, where Miller resided, to arrest Miller. Detectives Tucker and Maneely arrived at Pfeil’s home about-eight o’clock in the evening, and arrested the defendant, Miller, and his brother, Louis.</p> <p>Maneely and Tucker left Pfeil’s home with the defendant, Miller, and his brother, Louis, in their custody, and under arrest; the four walked westward from Pfeil’s house on the south side of Cambria street, Detective Tucker having Miller in custody, and Detective Maneely having Miller’s brother, Louis, in custody.</p> <p>The four men proceeded westward on the south side of Cambria street until they came to an alley between premises 2120 and 2122 East Cambria street, when Miller asked Detective Tucker to take him up the alley, as he wanted to urinate.</p> <p>Tucker complied with Miller’s request, and took him into the alley, while Detective Maneely and Miller’s brother, Louis, stood on the sidewalk at the curb in front of the alley. As soon as Tucker and Miller got into the alley, Miller broke away from Tucker pulled out a revolver, shot Tucker in the chest, and then ran out of the alley on to Cambria street.</p> <p>He was pursued by Maneely, and in the pursuit, Miller shot and killed Maneely, and succeeded in escaping, and was not arrested until the next morning. After his arrest, Miller made a statement to the police, narrating the incidents of the murder substantially as above outlined.</p> <p>Shortly before his arrest the defendant declared he would not be taken alive.</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 various rulings of the trial judge.</p>

<p>Negligence — Master and servant — Punching machine — G-ause of injury — N onsuit.</p> <p>Where in an action against a manufacturing company by the operator of a punching machine to recover damages for injuries to his eye caused by a splinter of metal 'which flew out of the machine when the die descended suddenly upon the punching bed, a compulsory nonsuit was properly entered where, various defects in the machine were shown, but the evidence failed to disclose that such defects caused the accident or that defendant was otherwise negligent.</p>

<p>Wills — Trust estates — Sloclcs—Increase on sale — Income.</p> <p>Where a testator directed that his estate should be converted, and distributed as cash, and created a trust fund for the benefit of certain persons for life and the trustees of such fund took certain stock in lieu of cash upon the distribution of the testator’s estate, and subsequently realized a profit upon the sale thereof, the profit so realized was not part of the corpus of the trust fund, but was distributable as income.</p>

<p>Appeal, No. 279, Jan. T., 1915, by defendant, from judgment of C. P. Delaware Co., June T., 1914, No. 401, on verdict for plaintiff, in case of R. Robinson Lowry v. Baldwin Locomotive Works. Before</p> <p>Trespass to recover damages for personal injuries. Before Broomall, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,516.25 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 200, Jan. T.', 1915, by defendant, from judgment of C. P. Schuylkill Co., Jan. T., 1914, No. 186, on verdict for plaintiff, in case of Elizabeth R. Long v. Borough of St. Clair.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Koch, J.</p> <p>From the record it appeared that the Borough of St. Clair owned and operated a municipal light plant. Joseph Long, the deceased husband of the plaintiff, conducted a hotel in the said borough and had a contract with the said borough to furnish him electricity of sufficient voltage to supply incandescent lights in his hotel and dwelling. The electric light in the cellar was attached to an extension cord so that it could be carried from place to place.</p> <p>On the night of the 25th of March, 1913, during, or after, a storm, Long, accompanied by a hired man, August Weiss, went to his cellar to get oysters., Long took the electric light and started towards the barrel of oysters, and had proceeded a few feet when there was a puff of smoke and light. Long gave an outcry and fell. Weiss cried for help and the bartender, James McKeon, ran down the steps and caught hold of Long and he in turn received a shock, which knocked him down and rendered him unconscious.</p> <p>August Jacoby, a visitor to the house, ran to the cellar and seeing the arc of electricity between the bodies of Long and McKeon attempted to pull them apart. He received an electric shock and was thrown across some barrels. He several times tried to release the bodies, each time receiving a heavy shock of electricity. In the meantime Mrs. Long sent some boys to the electric light station who informed the engineer that Mr. Long was being roasted by the electric light. The engineer turned off the high tension current and Jacoby, was enabled to release Long and McKeon.</p> <p>• Long was dead. His fingers were burned off and his chest was roasted to the bone.</p> <p>On the 27th day of March it was discovered that two of the pins to which the wires are fastened on one of the ■cross-arms on a pole in the street near Boone’s elevator had broken off and that the high tension "and low tension wires had crossed at that point The pins were produced at the trial and showed they had broken off on account of rotting.</p> <p>The high and low tension systems of the borough are generated from separate dynamos. There were several separate incandescent districts run from different dynamos, but the system which supplies the district in the region of Boone’s elevator could be connected from the buss bars in the power house to the system in the district in which Lopg’s hotel was situated.</p> <p>The borough offered evidence that it did not know of this condition; that there was nothing wrong in the construction of its plant and especially in respect to these pins; that the cross-arms had been removed on that pole some years before; that they had put in pins, that the pins being lodged in the sockets of the cross-arms, were not readily inspected.</p> <p>Verdict for plaintiff for $7,500, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct,a verdict for defendant and answers to points.</p>

<p>Appeal, No. 122, Jan. T., 1915, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1914, No. 5242, for plaintiff, for want of a sufficient affidavit of defense, in case of National Milk Sugar Company v. Smith, Kline and French Company.</p> <p>Assumpsit for the price of goods sold and delivered to defendant under a written contract.</p> <p>Buie for judgment for want of a sufficient affidavit of defense. Before Bregy, P. J.</p> <p>From the record it appeared that the twentieth clause of the contract between the parties was as follows:</p> <p>Twentieth. In consideration of the purchase by the first party of the machinery, accessories, and equipment located at Bondout, N. Y., and Prattsville, N, Y., of the second party, and of the special price made by tbe first party to tbe second party for powdered sugar of milk and tbe covenants herein contained, tbe second party expressly agrees that it will discontinue tbe manufacture of sugar of milk and that it will not directly or indirectly engage in tbe manufacture, purchase or sale of milk whey, crude sugar of milk, or refined sugar of milk during tbe period from tbe date hereof to December 31, 1917, except as herein provided, and except in tbe State of Nevada and for consumption in said state only. The second party further agrees that in tbe event of tbe second party engaging in tbe manufacture, purchase or sale of milk whey, crude sugar of milk or refined sugar of milk in violation of its agreement as aforesaid, tbe first party shall have tbe right to terminate this contract at tbe expiration of ten (10) days after giving tbe second party written notice thereof, and in tbe event of such termination tbe first party shall be entitled to receive and recover from tbe second party any sum or sums, then due, or which may thereafter become due, and for all damages sustained by tbe nondelivery of tbe sugar of milk caused by such termination.</p> <p>Other facts appear in tbe following opinion by Bregy, P. J., sur plaintiffs rule for judgment for want of a sufficient affidavit of defense:</p> <p>Tbe Supreme Court having requested an opinion as to why this rule was made absolute by us, we now file tbe following in reply to tbe request:</p> <p>Tbe statement of claim and tbe affidavit of defense show tbe following condition of affairs.</p> <p>The defendant company having sold its plant in which it manufactured milk sugar to tbe plaintiff company entered into an agreement which provided in great detail for their respective dealings.</p> <p>■ Tbe parts of that agreement which are important to consider in tbe 'present controversy are these:</p> <p>Tbe plaintiff agreed to sell milk sugar to tbe defendants for their use in tbe manufacture of “Eskay Food,” at a price that was special to them. The defendants agreed that they would not enter into competition with the plaintiff by selling the milk sugar that they bought ostensibly for their own use in the-manufacture of “Eskay Food.”</p> <p>Paragraph twenty of the agreement provided that if the defendants did sell the milk sugar above alluded to that the plaintiff could do all of three things.</p> <p>First. — Recover for all loss that had been suffered by reason of the forbidden sale.</p> <p>Second. — Recover payment for all milk sugar delivered and unpaid for, and</p> <p>Third. — Had the right to rescind the contract on 10 days’ notice of its intention to do sov</p> <p>These rights were cumulative and not alternative.</p> <p>The statement of claim alleged a violation of that part of the agreement, a rescission of the contract and a claim for milk sugar delivered and unpaid for.</p> <p>The affidavit of defense admits the violation of the agreement not to sell, but says it was done “inadvertently” whatever that may mean.</p> <p>This of course is no excuse for violating an agreement. The other reason assigned to prevent judgment is that they have paid the plaintiff his loss. But by the agreement they were bound to do that anyhow. That is one of the plaintiff’s rights but only one.</p> <p>They admit they have not paid for the goods delivered and sold for in this action but try to offset it by a counterclaim larger in amount. This counterclaim is entirely ineffective if the right to rescind existed with the plaintiff. This in our judgment was the plaintiff’s right and it was exercised within a reasonable time.</p> <p>The letters attached to the affidavit of defense show that the experts who were put on the defendant’s books made a report showing the amount of sales made by the defendant on September 9, 1913, and on September 27, 1913. The contract was rescinded.</p> <p>This, we think was within a reasonable time, We made the rule absolute because the defendant had violated their agreement not to sell milk sugar by his own ' admission and that the penalty for so doing was the right of plaintiff to rescind. This view made it unnecessary to consider whether the counterclaim was stated with sufficient definiteness. •</p> <p>The court made the rule absolute and assessed damages at $4,062.50. Defendant appealed.</p> <p>Error assigned was in making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

Appeal, No. 399, Jan. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1915, No. 1993, for plaintiff for want of a sufficient affidavit of defense, in case .of Charles E. Starr v. J. Hector McNeal. Assumpsit upon an award of arbitrators. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 353, Jan. T., 1915, • by Mary G. Mattes, and Mary G. Mattes, Executrix, from judgment of C. P. Lackawanna Co., Oct. T., 1915, No. 716, for. plaintiff, in case of S. K. Spang v. Mary G. Mattes and Mary G. Mattes, Executrix of the Estate of Cornelia W. Mattes, Deceased.</p> <p>Petition under the Act of April 20, 1905, P. L. 239, to obtain possession of real estate purchased by plaintiff at a sheriff’s sale. Before Newcomb, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for petitioner. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Deeds — Conveyances of surface — Waiver of surface support — Legality — Equity—Injunction.</p> <p>1. Where in a conveyance of land the grantor reserves the coal and minerals beneath the surface together with the right to mine and remove the coal and minerals without incurring'any liability for injury caused or damage done to tbe surface or to the buildings and improvements thereon, the reservation is not as broad as the grant and is not illegal.</p> <p>2. The right of surface support can be waived by an implied as well as by an express covenant, and it is so implied by the acceptance of a grant of the surface of mineral lands offered upon terms unmistakably intended to extinguish the right of surface support; such waiver of surface support does not violate the statute of frauds, although not evidenced by a writing signed by the grantee.</p> <p>3. A bill in equity to restrain a mining company from mining under plaintiff’s lot without providing surface support is properly dismissed, where it appears that in the deed separating the surface from the minerals made by a grantor under whom both plaintiff and defendant claimed, the right of surface support had been waived.</p>

<p>Negligence — Master and servant — Dangerous machinery; — Failure to guard — Death—Rolling mill — Unguarded spindles — Case for jury.</p> <p>In an action against a manufacturing company to recover damages for the death of plaintiff’s husband, an employee of defendant, the case was for the jury and a verdict for the plaintiff will be sustained where there was evidence that it was decedent’s duty to adjust the set screws in a rolling mill, that such work could only be done while the spindles were running, that the rolls were not running properly at the time, that plaintiff was seen to go into the pit beside the spindles with a set of wrenches and a torch in his hand a minute before the accident and that his body was then seen to pass through the spindles,.which were unguarded.</p>

<p>Trusts and trustees — Decedents’ estates — Wills—Specific direction in will to sell — Election to iahe in Mnd.</p> <p>1. A specific direction in testator’s will to sell real estate is controlling.</p> <p>2. Decedent gave his residuary estate to a foreign charitable corporation and directed his executors to rent the r.eal estate for twenty years and at the end of that period to sell. Held, that such charitable corporation could not restrain the executors of the will from selling at the end of the period or compel a conveyance of the real estate to them in kind.</p>

<p>Practice, Supreme Court — Assignments of error — Error in charge —Failure to except.</p> <p>An assignment of error complaining of the charge of the Court will not be considered where no special or general exception was taken thereto.</p>

<p>Appeals, Nos. 46 and 47, Jam T., 1916, by The Pennsylvania Trust Company, guardian of Elizabeth and Ferguson Hoff, minor children of Charles L. Hoff, deceased, and Howard L. Hoff, from decree of O. C. Berks Co., Jan. T., 1916, No. 19, dismissing exceptions to adjudication in Estate of Louise Hoff Wootten, deceased.</p> <p>Exceptions to adjudication. Before Schaeffer', P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court dismissed the exceptions. The Pennsylvania company, guardian of the minor children of Charles L. Hoff, and Howard L. Hoff, appealed.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>

<p>Contracts — Illegality—Municipalities—City of second class — Gas companies — Absence of advertisement or competitive bidding — Acts of March 7,1901, P. L. SO, and June SO, 1901, P. L. 586 — Judgment for defendant n. o. v.</p> <p>1. The provision of tbe Charter Act of March 7,1901, P. L. 20, as amended by tbe Act of June 20, 1901, P. L. 586, relating to cities of tbe second class, that “all contracts relating' to city affairs shall' be let to tbe lowest responsible bidder after reasonable notice,” is not merely directory but mandatory and unless strictly complied with no liability is imposed upon the municipality.»</p> <p>2. A contract entered into between a city of tbe second class and a gas company for tbe supply of gas for a municipal hospital is illegal and void when awarded without previous advertisement and without competitive bidding where there were other companies furnishing gas in such city.</p> <p>3. In such case the fact that the other, companies in order to have fulfilled such contract would have had to lay pipe some distance, did. not obviate the necessity of advertisement and competitive bidding, in the letting of the contract.</p>

<p>Habeas corpus, original jurisdiction, Miscellaneous Docket No. 192, in case of Commonwealth of Pennsylvania, ex rel., Christian Lieberum v, Edward Lewis, Warden of Allegheny County Jail.</p> <p>Habeas corpus, orginal jurisdiction.</p> <p>The opinion of the Supreme Court states the facts.</p>

<p>Appeal, No. 308, Jan. T., 1915, by plaintiff, from final order of C. P. No. 5, Philadelphia Co., June T., 1913, No. 3871, dismissing exceptions to report of referee, in case of Frank H. Clement v. United States Pipe Line Company.</p> <p>Trespass to recover damages for the loss of a steam shovel.</p> <p>Exceptions to the report of Owen J. Roberts, Esq., referee. Before Staaice, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed exceptions to the report of the referee, and entered judgment for defendant thereon. Plaintiff appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 210, Jan. T., 1915, by defendant, from decree of C. P. Delaware Co., Dec. T., 1913, No. 218, on bill in equity to declare a trust, in case of William C. Alexander, Jr., v. Sylvanus R. Queen, John W. Queen, Administrator of Sylvanus R. Queen, Substituted Defendant.</p> <p>Bill in equity to declare a trust. Before Johnson, P. J., and Broomall, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing awarded the relief prayed for. John W. Queen, administrator of Sylvanus R. Queen, deceased, substituted defendant, appealed.</p> <p>Errors assigned, among others, were rulings on evidence.</p>

<p>Appeal, No. 429, Jan. T., 1915, by plaintiff, from final order of C. P. Adams Co., Aug. T., 1914, No. 173, setting aside service of summons and quashing writ in case of Annie K. Eline v. Western Maryland Railway Company.</p> <p>Trespass to recover damages for personal injuries on a cause of action arising in York County.</p> <p>Rule to set aside service of- summons and to quash writ. Before Swope, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court quashed the writ. Plaintiff appealed.</p> <p>Error assigned was in quashing the writ.</p>

<p>Appeal, No. 447, Jan. T., 1915, by plaintiff, from judgment of C. P. Schuylkill Co., May T., 1907, No. 402, for defendant non obstante veredicto in case of Annie E. Conway v. Pottsville Union Traction Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $10,000. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was the entry of judgment for defendant n. o. v.</p>

<p>Appeal, No. 63, Jan. T., 1915, by George Castleman Semple, Executor of the last will of Mary D. Semple (formerly Bladen), deceased, from decree of C. P. No. 4, Phila. Co., Sept. T., 1883, No. 661, dismissing exceptions to report of auditor, in Estate of Edward Simpson, deceased.</p> <p>Exceptions to report of Chester N. Farr, Jr., Esq., Auditor. Before Audenried, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. George Castle-man Semple, Executor of the last will of Mary D. Semple, deceased, appealed.</p> <p>Errors assigned were in dismissing the exceptions. '</p>

<p>Decedents1' estates — Executors and administrators — Sales of real estate — Price Act — Bonds.</p> <p>. 1. A sale of the real estate of a decedent under the Price Act of April 18, 1853, P. L. 503, is not for the purpose of administering the decedent’s estate, and is not to be regarded as in pari materia with the Act of March 29, 1832, P. L. 198, Sections 31 to 34, conferring jurisdiction upon the Orphans’ Court to order the sale or mortgage of a decedent’s real estate for the payment of debts; the bond given by the vendors in such ease is for the protection of the purchaser of the property and of the creditors of decedent, not for the protection of the decedents’ estate, and there is no liability upon such bond where neither the purchaser of the property nor the creditors of the decedent make any claim thereon.</p> <p>2. A testator gave his executors power to sell real estate and directed that they should serve without bond. The executors sold certain real estate and petitioned the Orphans’ Court under the Price Act of April 18, 1853, P. L. 503, for a decree that the purchaser take title to the real estate discharged from the lien of de-_ cedent’s debts not of record; the executors obtained the decree and entered security in double the amount of the purchase-money; the executors died and their estates were surcharged by the Orphans’ Court with the amount of the purchase-money. The substituted executor brought suit against the surety on the bond to recover the amount of the surcharge. Held, the court properly entered judgment for the defendant n. o. v.</p>

<p>Appeal, No. 311, Jan. T., 1915, by defendants, from judgment of C. P. No. 5, Philadelphia Co., June T., 1915, No. 1732, for plaintiff, on case stated in case of Pattie Faires Grant v. James D. Faires, Executor of the Estate of William J. Faires, deceased; Elizabeth M. Faires, Guardian of John W. Faires, a minor; James D. Faires, William K. Haupt and the United Security Life Insurance and Trust Company of Pennsylvania, individually and as Executors of the Estate of Benjamin McKinley Faires.</p> <p>Case stated to determine title to a fund accruing upon a death benefit certificate. Before Staake, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for thé plaintiff on the case stated. James D. Faires, Executor of the Estate of William J. Faires, deceased, and Elizabeth M. Faires, Guardian of John W. Faires, a minor, appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 317, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1911, No. 4309, for defendant, in case .of Elizabeth R. McDonald, Executrix of the Estate of William W. Ruley, Deceased, y. Columbian National Life Insurance Company.</p> <p>Assumpsit on a life insurance policy. Before AudenRIED, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned, among others, were instructions to the jury and in directing a verdict for defendant.</p>

<p>Practice, Supreme Court — Appeals—Parties—Quashing appeals.</p> <p>An appeal from a judgment entered in proceedings to which the appellant was not a party will be quashed.</p>

<p>Appeal, No. 211, Jan. T., 1915, by defendants, from judgment of C. P. Lehigh Co., Sept. T., 1913, No. 59, for plaintiff, for want of a sufficient affidavit of defense, in case of Crane Railroad Company v. The Philadelphia and Reading Railway Company and the Catasauqua and Fogelsville Railroad Company.</p> <p>Assumpsit for freight charges.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Groman, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made absolute plaintiff’s rule for judgment for want of a sufficient affidavit of defense. Defendants appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 201, Jan. T., 1915, by tbe Borougb of Bethlehem, from decree of C. P. Le-high Co., April T., 1914, No. 1, in equity, dismissing bill in equity for an injunction, in case of the Borough of Bethlehem and Oscar H. Rauch y. Lehigh and New England Railroad Company and James A. Eberts.</p> <p>Bill in equity for an injunction. Before Groman; P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill. The Borough of Bethlehem appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law, and the decree of the court.</p>

<p>Appeal, No. 259, Jan. T., 1915, by plaintiff, from order of C. P. Montgomery Co., March. T., 1915, No. 79, making absolute a rule to open a confessed judgment, in case of Excelsior Saving Fund and Loan Association v. Morris Fox and Maggie Fox.</p> <p>Petition for a rule to open a confessed judgment. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made the rule absolute. Plaintiff appealed,</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 253, Jan. T., 1915, by plaintiff, from final order of C. P. Lehigh Co., April T., 1913, No. 79, refusing to take off compulsory nonsuit, in case of Andrew Mulchanock v. The Whitehall Cement Manufacturing Company.</p> <p>Trespass to recover damages for injuries to plaintiff’s dwelling. Before Groman, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a compulsory nonsuit, which the court subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 102, Jan. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1914, No. 2299, on verdict for plaintiff in case of Annie E. Wick, Administratrix of the Estate of David B. Wick, Deceased, v. Cordelia G. Boop.</p> <p>Scire facias sur mortgage. Before Dougherty, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,405 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Appeal, No. 210, Oct. T., 1915,. by plaintiff, from judgment of C. P. Westmoreland Co.,. Nov. T., 1914, No. 613, on case stated, in case of John E. Shields v. The County of Westmoreland.</p> <p>Case stated to determine plaintiff’s right to.recover salary. Before Doty, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for defendant on the case stated. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 43, Jan. T., 1915, by defendant, from judgment of C. P. Delaware Co., June T., 1913, No. 167, on verdict for plaintiff, in case of Mary Carr, by'ter father and next friend Enos F. Carr, v. Southern Pennsylvania Traction Company.</p> <p>Trespass to recover damages for personal injuries. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,800 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 232, Jan. T., 1915, by Hettie J. Stewart, Caroline S. Shaffner, Albert C. Stewart, Henry A. Stewart and Bertha H. Stewart, from decree of O. C. Delaware Co., No. 10318, dismissing petition for an injunction, in Estate of Henry Stewart, Deceased.</p> <p>Petition for an injunction to restrain respondents from producing and probating a will. Before Broomall, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the petition. Petitioners appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeals, Nos. 343 to 347 inclusive, Jan. T., 1915, by Gertrude H. Tyson, Martha H. Young, Ella M. Young, Lucy Nice, Ida Jamispn and Emma Harrar, from decree of O. C. Delaware Co., dismissing appeals from decree of Register of Wills, in Estate of Jane Jamison, Deceased.</p> <p>Appeal from decree of register of wills refusing to admit to probate certain documents alleged to constitute part of the will of Jane Jamison, deceased. Before Broomall, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the appeals. Gertrude H. Tyson, Martha H. Young, Ella M. Young, Lucy Nice, Ida Jami-son and Emma Harrar, appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeals, Nos. 364 and 422, by Frank A. Knight, and Bucks County Trust Company, Trustee of Estate of Frank A. Knight, under the will of Jesse W. Knight, late of Bristol Borough, deceased, from decree of O. C. Bucks Co,, dismissing exceptions to report of auditor, in Estate of Jesse W. Knight, Deceased.</p> <p>Exceptions to report- of Hiram H. Keller, Auditor. Before Ryan, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Frank A. Knight and Bucks County Trust Company appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Wills — Legacies—Widow—Construction—Intention.</p> <p>1. As to the identity of a beneficiary a will speaks as of its date.</p> <p>2. There is no inflexible rule that the word “widow” when used to denote relationship to a legatee or donee necessarily means the wife who shall survive him, when another was his wife at the making of the will or trust deed. In such case, who was really intended should be determined by a consideration of the entire instrument, aided by the rules- of construction.</p> <p>3. Where the donee is described by relation to the donor, or another, on a contingency that may or may not happen, and a person is in being at the time of the execution of the instrument, to whom, on the happening of the contingency, the description would apply, it is a safe general rule to hold such person as intended to be the devisee.</p> <p>4. A deed of trust conveyed certain real estate for the benefit of the grantor’s son for his life with directions to the trustee upon the death of the son “to pay the said income with interest to the widow of the said son,” naming him, “should she survive him,” and after her death for the benefit of the son’s children. The son’s wife predeceased the son leaving children; the son remarried and was survived by his second wife, who claimed that she was entitled to the income. The auditor awarded the property to the children of the son to the exclusion of the second wife. Held, the lower court did not err in dismissing exceptions to the report of the auditor.</p>

<p>Negligence — Railroad companies — Person walking on tracks— Licensees — Station platform — Contributory negligence — Nonsuit.</p> <p>1. A person walking on one of two or more railroad tracks knowing that a train is coming is chargeable with negligence if he fails to ascertain upon which track the train is, and the fact that he is on a side track will not relieve him of that duty.</p> <p>2. Where in an action by a widow to recover damages for the death of her husband plaintiffs testimony disclosed only that deceased was last seen walking in broad daylight along defendant railroad company’s platform beside its four track railroad at a point where a side track crossed the platform, that a train, of the approach of which deceased had notice, coming from his rear, turned into the siding, giving a whistle blast as it did so, and that subsequently deceased’s mangled body was found along the siding about 25 feet from the platform, and there was no further evidence as to how the accident occurred, a nonsuit was properly entered.</p>

<p>Appeal, No. 370, Jan. T., 1915, by defendant, from judgment of C. P. Wayne Co., March T., 1913, No. 234, on verdict for plaintiff in case of George W. Swartz v. Flovd Bortree.</p> <p>Trespass to recover damages for malicious prosecution. Before Seaele, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000.00, which Avas subsequently reduced to $2,037.50 and judgment entered thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in answers to points, rulings on evidence, and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 30, Jan. T., 1916, by plaintiff, from judgment of C. P. Lackawanna Co., Oct. T., 1913, No. 1154, on verdict for defendant, in case of John Hlawaty v. Andrew Zeock, Michael Zeock, Annie Zeock, John Zeock, Mary Zeock, Nikoloj Zeock and Andrew Zeock, Guardian of the Minor Children of John Zeock, deceased.</p> <p>Ejectment to recover lands in Lackawanna County. Before Maxwell, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were answers to points, the refusal of the court to direct a verdict for plaintiff and to enter judgment for plaintiff n. o. v.</p>

<p>Judgments — Opening of judgments — Defenses- — -Payment — Deeds — Acceptance of benefit under deed — Estoppel.</p> <p>1. A party who accepts tbe benefit of a deed becomes as fully bound by the conditions thereof as if be bad signed it.</p> <p>2. Where tbe maker of a judgment note conveyed to the payee certain real estate in fee in consideration of an agreement by tbe payee to pay the debts of tbe maker including that for which the note was given and tbe payee took and treated tbe property as her own, tbe lower court properly found in'an action on tbe judgment note that tbe debt for which tbe note was given bad been paid.</p>

<p>Wills — Life estates — Remainders—Children—Words of purchase —Rule in Shelley’s Case.</p> <p>Where a testator devised certain real estate “to my nephew...... for and during the term of his natural life. At his death the same is devised to the child or children in fee,” the nephew took but a life estate in the property; the rule in Shelley’s Case did not apply, and the children took as purchasers, not by devolution from their father.</p>

<p>Negligence — Automobiles—Pedestrians—Street crossings — Contributory negligence — Trials—Remarles of counsel — Case for jury.</p> <p>1. Ordinary care must be observed by vehicle drivers and pedestrians at all times at and between crossings. More care is required to'be exercised by an automobile about to pass over a street crossing than between crossings; and more care is required of pedestrians between crossings than at crossings.</p> <p>2. In an action to recover damages for personal injuries sustained by plaintiff as a result of being struck by defendant’s automobile which was being operated by defendant’s chauffeur within the scope of his employment, the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury and a verdict for the plaintiff was sustained where it appeared that while plaintiff was attempting to cross a public street between crossings she observed plaintiff’s ear approaching and waited to allow it to pass, but that defendant’s chauffeur turned to speak to another occupant of the car and in so doing caused the car to swerve and struck the plaintiff.</p> <p>3. In such case reference by the counsel for the plaintiff in his closing address to the jury to the fact that the defendant’s chauffeur, who was in the court room and had been identified during the trial, had not been called as a witness in the defendant’s behalf was within the limit of reasonable comment by counsel.</p>

<p>Insurance — Life insurance — Statements in application — Falsity —Effect—Rescission—Evidence—Declarations of insured — Charge.</p> <p>1. After the death of the insured a life insurance company cannot change the status of the beneficiary by an attempted rescission of the insurance contract.</p> <p>2. The declaration of an insured made after the policy had gone into force cannot he received in evidence to affect the right of the designated beneficiary in a suit by the latter to enforce the contract of insurance.</p> <p>3. In an action on a life insurance policy brought by the beneficiary named therein the defense was that deceased had made false statements in his application as to the state of his health, and the testimony as to the verity of the statements made by the insured was conflicting. The trial judge excluded evidence of declarations made by the insured concerning the state of his health after the policy was issued and charged that if the insured prior to his application suffered from designated ailments of whose character he would surely be cognizant, then the verdict must be for the defendant, but that if he suffered from certain -other ailments, of a kind he might have had without being aware of the fact, then the good faith of his answers would depend upon his knowledge. The jury found a verdict for the plaintiff upon which judgment was entered. Held, no error.</p>

<p>Appeal, No. 269, Jan. T., 1915, by defendant, from decree of C. P. Northampton Co., June T., 1914, No. 2, in equity, awarding an injunction, in case of Bethlehem City Water Company v. The Borough of Bethlehem.</p> <p>Bill in equity for an injunction. Before Stewart, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing awarded an injunction as prayed for in the bill. Defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law of the hearing judge, and the decree of the court.</p>

<p>Appeal, No. 275, Jan. T., 1915, by defendants, from judgment of C. P. Northampton Co., Nov. T., 1914, No. 49, on verdict for plaintiff, in case of Edwin J. Achenbach v. David Stoddard, Mahlon Stoddard and Thomas Brinton.</p> <p>Assumpsit for extra work alleged to have been performed under a written contract. Before Brodhead, J.</p> <p>The opinion of the Supreme Court states.the facts.</p> <p>Verdict for plaintiff for $5,016.20 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Appeal, No. 386, Jan. T., 1915, by Mary L. Hamlin and Emma S. Hamlin, from decree of O. C. Northampton Co., dismissing petition for a citation to show cause why the executors and residuary legatees should not pay the petitioners the amount of a book account owned by decedent’s estate and assign certain shares of stock, in Estate of Katharine H. Dodson, Deceased.</p> <p>Petition for a citation to show cause why the executors and residuary legatees under a will should not pay to petitioners the amount of a book account owned by decedent’s estate and assign to petitioners certain shares of stock. Before Stewart, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The lower court dismissed the petition. Petitioners appealed.</p> <p>Error assigned, among others, was in dismissing the petition.</p>

<p>Appeal, No. 321, Jan. T., 1915, by defendant, from decree of C. P. Northampton Co., Nov. T., 1914, No. 3, in equity, requiring defendant to pay a sum of money to plaintiff, in case of William C. Kotz, Administrator of the Estate of Edward Kotz v. Lillie A. Smith.</p> <p>Bill in equity to require defendant to pay a sum of money claimed by plaintiff as the property of his decedent’s estate. Before Brodhead, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded the relief prayed for. Defendant appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Practice, Supreme Court — Appeals—Record—Motion to quash— Vacation of judgment.</p> <p>On appeal from a judgment entered on a verdict of a jury, where a motion to quash has been made on the ground that the charge and answers to points were not certified by the official stenographer who took the notes of the same upon trial, as required by Section 4 of the Act of May 1, 1907, P. L. 135, and it appears that the requirements of the Act of Assembly were not complied with because the official stenographer died shortly after the trial without having transcribed his notes, the motion to' quash will be overruled and the judgment will be vacated and a venire facias de novo awarded.</p>

<p>Practice, Supreme Court — Appeals—Judgment for want of a sufficient affidavit of defense — Refusal—Act of April 18, 1871¡, P• L. 64.</p> <p>1. The Act of April 18, 1874, P. L. 64, authorizing appeals from an order refusing judgment for plaintiff for want of a sufficient affidavit of defense was intended to reach only cases of clear error in law.</p> <p>2. In an action on a promissory note, an affidavit of defense alleging that the note and a previous note of which it was a renewal were given under a parol agreement that they should be paid from funds arising from a source therein referred to, and that plaintiff had been in receipt of funds applicable to the payment of the note, but had not paid the same, is sufficient to prevent summary judgment.</p>

<p>Appeal, No. 440, Jan. T., 1915, by defendants, from judgment of C. P. Northampton Co., Nov. T., 1913, No. 34, on verdict for plaintiff, in case of William H. Rothrock v. Robert J. Nagle, Mortgagor, and The Bangor Choice Slate Company, Real Owner of the Land Charged.</p> <p>Scire facias sur mortgage. Before Stewart, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $6,632.35 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were instructions to the jury.</p>

<p>Counties — County controller — Act of March 27,1918, P. L. 10— Constitution of Pennsylvania, Amendment No. 9.</p> <p>The Act of March 27, 1913, P. L. 10, establishing the office of county controller in counties haying a population of 100,000 or oyer and fixing a two year term of office for the first controller to be elected, is not unconstitutional as haying a title which fails to disclose the subject-matter of the act, but violates Amendment No. 9 of the Constitution providing that county officers shall hold their offices for the term of four years, beginning the first Monday of January next after their election. Where, therefore, a county controller has been elected under the act, the Constitution fixes the term of his office at four years, and he cannot be ousted at the expiration of the first two years of his term in quo warranto proceedings, at the relation of a party claiming title to the office under the void provision of the act.</p>

<p>Wills — Life estates■ — Remainders—Conveyance by all parties in interest.</p> <p>Where a testator devised all his estate to his wife for her life with power to dispose of any of such property and provided that upon her death the remainder be equally divided among his two children or the heirs of their body, or to the survivor, in case of no issue, and testator’s widow and two sons agreed to sell certain of the real estate so devised, the contention of the vendee that the vendors could not convey a marketable'title in fee simple was without merit, and in an action by the vendors for the purchase-money, the court should have entered judgment in favor of the plaintiffs.</p>

<p>Decedents’ estates — Family settlement — Evidence—Findings of fact — Appeals.</p> <p>In. proceedings by the substituted trustee of a decedent’s estate to recover a fund which the trustee alleged passed to his decedent under her husband’s will and was her property at the time of her death, where there were findings of fact by an auditor supported by competent evidence, that under a family settlement joined in by all parties interested in the husband’s estate, the fund had been placed in trust for the benefit of the widow during her life in consideration of her agreement to release her interest in certain other assets, and a recommendation was made that the claim be refused, a decree dismissing exceptions to the auditor’s report was affirmed.</p>

<p>Appeal, No. 369, Jan. T., 1916, by plaintiff, from judgment of C. ,P. Bradford Co., Sept. T., 1914, No. 279, on verdict for defendant, in case of Helen L. Goss v. Nelson D. Spencer.</p> <p>Ejectment to recover the possession of certain real estate left by decedent. Before Albert W. Johnson, P. J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for plaintiff and in refusing to enter judgment for plaintiff, n. o. v.</p>

<p>Negligence — Railroads—Fires—Sparlcs —.Locomotives — Proximate cause — Case for jury.</p> <p>Where in an action against a railroad company to recover for the destruction by fire of plaintiff’s dwelling house, it appeared that the fire was communicated from a barn in close proximity to railroad tracks, that immediately before the bam caught fire, a locomotive had passed throwing out great quantities of sparks of a larger size than could have passed through a spark-arrester .in proper condition, and that there was no other probable cause of the fire, the case was for the jury and a verdict and judgment for 'plaintiff was sustained.</p>

<p>Practice, O. P. — Trials—Objection to admission of evidence— Withdrawal of objection.</p> <p>Where on the trial of an action against a street railway company to recover damages for injuries to plaintiff’s property resulting from the change of grade of a city street, plaintiffs objected to the admission in evidence of certain testimony taken at a hearing in former suits against the city relating to the same matter, and such objection was overruled and the evidence admitted, and thereafter during the trial in pursuance of a suggestion by the court it was agreed by plaintiff’s counsel that all the testimony taken in the former proceedings should be read, such agreement amounted to a withdrawal of the prior objection and could not be successfully made the basis of an assignment of error on appeal.</p>

<p>Equity — Jurisdiction—Remedy at law — Ejectment—Certification to law side — Act of June 7,1907, P. L. 440 — Practice, C. P.</p> <p>1. Where the primary and controlling question raised by a bill in equity concerns the title to certain real estate purchased from funds alleged to have belonged to plaintiffs decedent and to have been improperly placed in defendant’s name, which fact is denied in defendant’s answer, and there is no prayer in the bill for a discovery or accounting, equity has no jurisdiction, the proper remedy being an action of ejectment.</p> <p>2. In such case the question of jurisdiction having been raised by the answer the chancellor erred in failing to certify the case to the law side of the court as required by the Act of June 7, 1907, P. L. 440.</p>

<p>Appeal, No. 444, Jan. T., 1915, by Charles A. Tindley, from decree of O. C. Philadelphia Co., July T., 1914, No. 52, dismissing exceptions to adjudication in Estate of Thomas T. Womack, Deceased.</p> <p>Exceptions to adjudication.</p> <p>The adjudication of Gest, J., was in part as follows:</p> <p>Thomas T. Womack died on March 28, 1914, unmarried, leaving a will, dated September 27, 1913, admitted to probate April 21, 1914, when, no executors being named in the will, letters of administration c. t. a. were granted to the present accountant. A photographic copy of the will is annexed hereto. The will, which is a testamentary curiosity, was badly written, and the legibility of certain words particularly was disputed by the learned counsel for the parties. The auditing judge reads it as follows:</p> <p>“Philadelphia, Pa., Sept. 27th, 1913.</p> <p>“This to certify to all to whom is consernd that Dr. Thos. T. Womack of 1035 S. 17th St. will to James Jr. Lennon Jr. of 17th & Fitzwater St. 1,000. To, the house keeper, whom every she may be $3,000, and to the Chnrch Rev. Tinley the rest, Baring $5,000.</p> <p>“Dr. T. T. Womack.”</p> <p>The will was not attested by two subscribing witnesses and it was conceded that any legacy to a religious use was therefore invalid. ***********</p> <p>When the testator mentioned “the church,” the auditing judge is of the opinion that he intended the East Calvary Methodist Episcopal Church; that is to say the church on Broad street below Fitzwater,......not very far from the testator’s residence: the minister of this church is Rev. Charles A. Tindley, who testified that the testator joined his church something over a year before his death. Before that, the Rev. Tindley had known the testator slightly about ten years and quite well for about three years, but the testator and he did not visit one another at their homes. The testator began attending the church about nine months before his death. Of course any legacy to the church would be invalid under the Act of April 26,1855, 328, 4 Stew. Purd. 4113, and the auditing judge is of the opinion that the additional words in the will “Rev. Tindley” were merely used to identify the church and not intended to designate the Reverend Tindley as legatee. In this connection it will be observed that the words are “to the Church Rev. Tinley the rest” followed by a comma, the words “Rev. Tinley” following closely the words “the church” and not separated by a comma as the copy annexed to the letters testamentary originally transcribed it.</p> <p>It was not disputed, and indeed the evidence was clear, that Charles A. Tindley was the only clergyman of the name of Tindley or Tinley with whom the testator was acquainted, and nothing could be more natural than for a testator, in leaving a legacy to the church, to make clear by linking with it the name of the minister just what church he meant. In fact every one knows of instances where other churches have been familiarly spoken of by the name of their distinguished preachers. Henry Ward Beecher’s Church and Spurgeon’s Tabernacle are well-known examples.</p> <p>The contrary construction urged so zealously by Mr. Dickerson, the learned counsel for Bev. Mr. Tindley, appears to the auditing judge to involve the insertion of words in the will which the testator did not write in it or intend. His ingenious theory was that the testator bequeathed a legacy to the church equal in amount to that given to the housekeeper, and to Bev. Tindley the rest or residue, so that the will should read: “To the housekeeper whomever she may be $3,000 and to the church (the same) Bev. Tinley the rest, being 5,000”; the penultimate word, according to this theory, should be read “being” and not “baring” or “barring.” In support of this argument, it was shown that the testator had accumulated $12,000. Of this he gave to James Lennon $1,000; to the housekeeper $3,000, to the church (according to this theory) $3,000 and to Bev. Tinley the rest, which would be $5,000, the testator thus estimating the amount of the residue. It would seem, as urged by Mr. Parks, extremely improbable that the testator intended to give the residue of his estate to a clergyman of whom he knew merely as the pastor of the church he had attended a comparatively short time before he made the will, but perhaps much reliance should not be placed upon this argument as the testator shows similar liberality to his unnamed housekeeper whomever she might be in bequeathing her one-fourth of his estate. An effort indeed was made to prove that the decedent mentioned his intention to remember the Bev. Tindley in his will, which testimony the auditing judge excluded. While parol evidence , is competent and was in this case admitted to show the person whom the testator intended by Bev. Tinley and the identity of the church and the identity of the housekeeper to whom the bequest is made, yet that is very different from supplying by parol those necessary dispositive words establishing the gift itself and from which the testator himself did not insert. See on ......this point Johnson’s App., 3 W. N. C. 52; Wusthoff v. Draconrt, 3 Watts 240; Appel v. Byers, 98 Pa. 479; Boot’s Est., 187 Pa. 118. And this is especially true as the offer in one instance was merely that the testator intended “to remember the Bey. Tindley in his will,” which intention would be fulfilled by a legacy to the church with which the reverend clergyman was connected, and in the second case the offer was to prove that the testator declared his intention to bequeath to Bev. Tindley $500, which is totally inconsistent with the will as written, which, if it means anything in favor of Bev. Tindley individually amounts to a bequest of the entire residue or the residue less $5,000.</p> <p>But the construction urged by counsel cannot be adopted as it would require the court to supply after the word “church” the figures 3,000 or the words “the same,” for construction cannot assume the proportions of reformation, and nothing is more dangerous in the construction or interpretation of wills than the insertion of words that the testator himself has not written. It is true that the testator wrote a very illegible hand and the internal evidence of the will would indicate that he was very illiterate and by no means that he was a graduate of Lincoln College and Howard University and besides licensed to practice in this State and actually in practice here. Yet the auditing judge does not find it possible to read this word as “being.” It is “baring” and the testator must have intended “barring,” that is except. The natural question arises what did he mean by that. Why should a testator give the rest or residue of his estate to a legatee barring or except $5,000, and deliberately die intestate as to that sum? The answer is not evident. The theory of the auditing judge would be that the testator intended to give certain pecuniary legacies and “to the church of Bev. Tinley the rest barring (what I have given to others that is) $5,000.” The difficulty is that the legacies expressed amount to $4,000 and not $5,000, and perhaps no better explanation can be suggested than that the testator wrote 5,000 by error for 4,000. The question is perhaps more difficult than important, for, as the auditing judge is satisfied that Sallie Patterson is the mother and next of kin, she would be entitled to the $5,000 if the decedent died intestate with respect thereto, and as she would take the legacy to the church, this being invalid under the act of assembly, it makes no difference whether the $5,000 is regarded as intestate estate or included in an invalid legacy.</p> <p>Sur exceptions to the adjudication: Dallett, P. J., filed the following opinion:</p> <p>Whether or not Sallie Patterson is this testator’s mother is purely a question of fact as to which in the absence of clear error the finding of the auditing judge is conclusive (May’s Est., 11 Pa. E. E. 178). We have examined the evidence and think it fully sufficient to justify his finding that she is the testator’s mother.</p> <p>The interpretation of the will presents a more difficult question. The auditing judge aptly refers to it as a “testamentary curiosity.” He awarded $1,000 to James Lennon, Jr., $3,000 to Jeanette Simms, shown to have been the testator’s housekeeper at the date of the execution of his will as well as at the date of his death, and, holding that the testator’s gift to “the Church Rev. Tinley the rest” was a gift to the church and invalid because the will was not attested by two subscribing witnesses, awarded residue to Sallie Patterson as next of kin.</p> <p>We have sought in vain for an interpretation which would be more reasonable than the one adopted by the auditing judge. Any must be subject to criticism (Kelley v. Kelley, 25 Pa. 460).</p> <p>“It is a maxim” however as was said by Mr. Justice Rogers in Bender v. Eietrick (7 W. & S. 284, 287), “which applies here as well as in England that an heir-at-law can only be disinherited by express devise or necessary implication.” This rule fairly justifies the auditing judge’s finding.</p> <p>All exceptions are dismissed and the adjudication is confirmed absolutely.</p> <p>The court in banc dismissed the exceptions to the adjudication. Charles A. Tindley appealed.</p> <p>Error assigned, among others, was in dismissing exceptions to the adjudication.</p>

<p>Wills — Revocation—Beneficiary under revoked will — Issue devisavit vel non — Refusal.</p> <p>A beneficiary under a will revoked by the testator has no standing to contest the validity of a subsequent will in which such beneficiary is not named, and an issue devisavit vel non petitioned for by such contestant is properly refused.</p>

Appeal, No. 53, Jan. T., 1916, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., June T., 1913, No. 3258, refusing to take off nonsuit in the case of Jennie Reddington v. City of Philadelphia. Trespass to recover damages for personal injuries. Before Finletter, J. The facts appear in the opinion of the Supreme Court. The court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.

<p>Wills — Construction—Gift in trust — Power of trustee to invest.</p> <p>A testator gave the residue of his estate in trust to “invest and keep invested” and “to preserve such investments and securities as I shall leave standing in my name so long as they......shall deem prudent” with “full power to select any investment or securities they may approve except the capital stock of corporations.” Part of such residue of testator’s estate consisted of 500 shares of stock in a certain corporation, which, after testator’s death doubled its capital stock and gave to each stockholder the right to subscribe for additional shares, equal in amount to his holdings. The trustees subscribed for the additional stock and on the audit of their account the court refused to confirm it on the ground that they were without power under the terms of the will to make such investment. Held, such investment was preserving testator’s proportionate holding of the capital stock of the company, and was proper for the trustees to make.</p>

Appeal, No. 9, Jan. T., 1916, by Joseph M. Dohan, Executor of the will of Sarah J. McCormick, deceased, from decree of C. P. No. 4, Philadelphia Co.; March T., 1914, No. 5825, in equity, dismissing bill in equity for reconveyance and accounting in case of Joseph M. Dohan, Executor of the will of Sarah J. McCormick, Deceased, v. Edith L. Yearicks and The Philadelphia Trust, Safe Deposit and Insurance Company. Bill in equity for reconveyance and for an accounting.

Appeal, No. 20, Jan. T., 1916, by plaintiffs, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1913, No. 2315, on directed verdict for defendant in case of William D. Hewitt, Benjamin R. Stevens and Phineas E. Paist, to the use of William D. Hewitt and Phineas E. Paist, copartners, late trading as Hewitt and Paist v. Charles J. Webb. Assumpsit to recover balance alleged to be due- for architect’s services.

<p>Judgments — Order opening judgment — Subsequent judgment for amount admitted to be due — Practice, Supreme Court — Appeal from order opening judgment — Quashing appeals.</p> <p>Where a judgment entered for want of a sufficient affidavit of defense was opened and judgment was thereafter taken for the amount admitted to be due in a supplemental affidavit of defense, and such judgment was satisfied “without prejudice to the rights of the plaintiff to proceed for the collection of the balance of the claim,” plaintiff’s remedy is to proceed for the collection of what be still claims to be due from tbe defendant, and an appeal from an order opening tbe original judgment will be quashed.</p>

<p>Appeal, No. 66, Jan. T., 1916, by the State Board of Censors, from decree of C. P. No. 2, Philadelphia Co., Sept. T., 1915, No. 4524, reversing decision of the State Board of Censors In The Matter of the Franklin Film Manufacturing Corporation.</p> <p>Appeal from order of the State Board of Censors. Before Barratt, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court reversed the decision of the State Board of Censors directing the elimination of certain portions of a motion picture film. The State Board of Censors appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 75, Jan. T., 1915, by Lizzie Metzger, from decree of C. P. Lehigh Co., April T., 1910, No. 273, dismissing exceptions to auditor’s report in case of Reuben B. Leith, to the use of Lizzie Metzger, v. Lovina Metzger (now deceased), Julia Schaadt, Executrix.</p> <p>Exceptions to auditor’s report. Before Groman, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The lower court dismissed the exceptions to the report of the auditor. Lizzie Metzger appealed.</p> <p>Error assigned, among others, was in dismissing exceptions to the auditor’s report.</p>

Appeal, No. 360, Jan. T., 1915, by plaintiff, from final order of C. P. No. 2, Philadelphia Co., Dec. T., 1913, No. 5356, refusing to take off compulsory nonsuit in case of George W. Dove v. Philadelphia Rapid Transit Company. Trespass to recover damages for personal injuries.

<p>Appeal, No. 84, Jan. T., 1916, by John L. Cox, Ersldne H. Cox, Edward V. Cox, Martha Cox Bryant, Fanny Cox Clark, Julia Cox Taber, Edith Cox Page, Alice Cox Wood, Harry W, Hazard and Ethel Hazard from decree of O. C. Philadelphia Co., April T., 1884, No. 69, declaring rights of a certain party beneficiary under a will in Estate of Erskine Hazard, deceased.</p> <p>Petition for declaration of rights of parties under a will. Before Lamorelle, J.</p> <p>Erskine Hazard died February 26,1865, leaving a will by which, inter alia, he directed the division of his estate among his children at the death of his wife, providing that the share of his daughter Fanny should be placed in trust for her sole and separate use during her lifetime, with a general power of appointment by will; in the event of her death without exercising the power of appointment, her share was devised to her children in equal shares. Decedent’s daughter Fanny married Samuel Dickson on June 6, 1867. Decedent’s widow died August 17,1874. An amicable division of decedent’s property was then made, in consequence of which certain securities and premises, 901 Clinton street, Philadelphia, were allotted to Fanny H. Dickson, the title to the said premises and the said securities being transferred to the Philadelphia Trust, Safe Deposit and Insurance Company as her trustee.</p> <p>Fanny H. Dickson died August 17,1913, leaving a will, by which, inter alia, she devised the residue of her estate, including that derived from decedent, Erskine Hazard, over which she had a power of' disposition, to her husband, Samuel Dickson, for the term of his natural life, and after his death, one-third of the principal to her son, Arthur G. Dickson, petitioner, absolutely, and the remaining two-thirds to Arthur G. Dickson for life, and on his death the principal to go to his child or children then living and the issue of deceased children, but if he left no issue at his death, then the.said two-thirds should be divided among the then living nephews and nieces of said Fanny H. Dickson, share and share alike.</p> <p>The estate was duly awarded to Samuel Dickson for his lifetime, and he used and enjoyed the same until his death, May 28,1915.</p> <p>The nephews and nieces of Mrs. Dickson, who were respondents in this proceeding, were living at the death of Fanny H. Dickson; some of.them were living at the death of decedent Erskine Hazard, but others were born since the death of Erskine Hazard.</p> <p>Arthur G. Dickson filed a petition that he be declared to have the legal title to the premises in question.</p> <p>The Orphans’ Court entered a decree directing the trustee to convey the premises to the petitioner absolutely. John L. Cox, Erskine H. Cox, Edward Y. Cox, Martha Cox Bryant, Fanny Cox Clark, Julia Cox Taber, Edith Cox Page, Alice Cox Wood, Harry W. Hazard and Ethel Hazard appealed.</p> <p>Error assigned was to the decree of the court.</p>

<p>Judgments — Judgment entered by agreement of counsel — Dispute as to terms of agreement — Rule to open judgment — Appeal— Practice, Supreme Court.</p> <p>Where a rule to show cause why judgment should not he entered was pending in the Court of Common Pleas and in pursuance of an agreement between opposing counsel, judgment was entered, but on appeal counsel differed as to the conditions of the agreement, the Supreme Court directed that the judgment be vacated and that the rule to show cause why it should not be entered be reinstated.</p>

<p>Negligence — Municipalities—Townships— Boadmasters — Steam rollers — Fires—Contributory negligence — Case for jury.</p> <p>1. A township is liable for the negligence of its agents and employees in the same manner as individuals and other municipalities.</p> <p>2. A roadmaster appointed under Section 6, of the Act of July 22, 1913, ,P. L. 915, providing for the supervision, construction, maintenance and repair of township roads, is an agent of the township for whose acts the township will be liable.</p> <p>3. While the absence of a spark arrester on a steam roller is not of itself evidence of negligence, where it appears that steam rollers are not usually provided with spark arresters, although such engines emit sparks, still the lighting of a fire in the engine of a steam roller in close proximity to a‘building, under certain weather conditions, may amount to negligence, as where there has been no rainfall for a considerable time and a high wind is blowing from the engine in the direction of such building.</p> <p>4. Where in an action against a township to recover damages for the destruction by fire of plaintiff’s barn, it appeared that defendant’s roadmaster had stored a steam roller temporarily upon plaintiff’s premises, near the barn, and had caused the engine to be fired at a time when a strong wind was blowing, whereby sparks blown from the engine caused the fire complained of, and it further appeared that plaintiff did not see the machine when first placed upon her property and although when she noticed its presence she made no objection, yet she was not familiar with the dangers incident to its operation, nor with the intention' of the engineer with regard thereto, the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury, and a verdict for plaintiff was sustained.</p> <p>5. In such case the defendant cannot escape liability on the ground that the act of the roadmaster in placing the roller on plaintiff’s property without her permission constituted a trespass outside the scope of his authority, where it appeared that it was customary to leave the roller at or near the highway when, as here, the work was being done some distance from the shed in which the roller was kept when not in use.</p>

Appeal, No. 220, Jan. T., 1916, by defendant, from decree of C. P. Northampton Co;, Nov. T., 1912, No. 2, for plaintiff on bill for specific per? formance of the covenants of a lease, in case of The Edison Illuminating Company v. Eastern Pennsylvania Power Company. Bill in equity for specific performance. Before Stewart, P. J. The opinion of the Supreme Court states the facts. The court awarded the relief prayed for. Defendant appealed.

<p>Wills — Legacies—Trusts—Construction—Intention.</p> <p>1. Where under the terms of a trust, payments to the beneficiary are left to the discretion of the trustee, the ownership of the fund is not in the beneficiary.</p> <p>2. Where a testator made a certain disposition of property in favor of a nephew and by codicil provided “the legacy to...... (the nephew) I leave in trust to” (the trustee, naming her), “to dispose of as she thinks best,” and the trustee made no payment to the nephew during his lifetime, the gift thereafter failed and fell into the residue.</p>

<p>Appeal, No. 32, Jan. T., 1916, by M. Frank Coolbaugh, Administrator of the Estate in Pennsylvania of Edward W. Kelley, Deceased, from decree of O. C. Monroe Co., decreeing the termination of a trust, in Estate of John G. Kelley, Deceased.</p> <p>Petition for the termination of a trust. Before Staples, P. J.</p> <p>The facts appear in Kelley’s Estate (No. 1), 253 Pa. 466.</p> <p>The court awarded the relief prayed for, and ascertained the interest which had accrued on the fund. M. Frank Coolbaugh, Administrator of the Estate in Pennsylvania of Edward W. Kelley, deceased, appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Negligence — Railroads—Bridges—Foreman—Fall—Death.</p> <p>In an action against a railroad company to recover damages for the death of plaintiff’s husband, a foreman in defendant’s employ, a verdict was properly directed for the defendant, where it appeared that deceased was in charge of repairing a bridge; that a section of boards had been removed in order that new boards might be laid, leaving a large opening; that while a horse was being driven upon the bridge, it took fright from steam from a locomotive passing thereunder and. plunged into 'the opening striking the foreman and carrying him to the ground, whereby his death resulted ; and it further appeared that the foreman was familiar with the dangers of the employment and was instructed to take such precautions as he considered necessary to minimize them.</p>

<p>Appeal, No. 218, Oct. T., 1915, by plaintiff, from judgment of C. P. Allegheny Co., Oct. T., 1913, No. 1248, on verdict for defendant in case of Iron City Automobile Company v. City of Pittsburgh.</p> <p>Appeal from award of board of viewers. Before Reid, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for the defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence, the charge of the court and in entering judgment on the verdict.</p>

<p>Appeal, No. 310, Jan. T., 1915, by Marion J. Sheer, Administratrix of Charles O. Sheer, Jr., Deceased; Flora A. Sheer Harman, Lloyd B. Sheer, Joseph A. Sheer, Anna M. Sheer, Emily Pacher, Administratrix of J. Benham Pacher, Deceased; A. B. Hazlett and Jennie A. McDonnell, Executors of the Estate of Sarah H. Hazlett, deceased, and Annie Randall, from Decree of O. C. Carbon County, sustaining exceptions to auditor’s report in Estate of Charles O. Sheer, Deceased.</p> <p>Exceptions to auditor’s report. Before Strouse, J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court sustained exceptions to the report of the auditor and entered a decree of distribution in which no interest on the shares for distribution was allowed the heirs, either as to the amount of surcharge or the original undisputed balance. Exceptants appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 63, Jan. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co. March T., 1914, No.- 4608, on verdict for plaintiff, in case of William Schmidt v. Philadelphia Eapid Transit Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for the plaintiff for $2,000.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were various rulings of the trial judge.</p>

<p>Appeal, No. 1, Jan. T., 1916, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1915, No. 190, on verdict for plaintiff in case of John E. Keller v. Gomery-Schwartz Motor Oar Company.</p> <p>Assumpsit to recover damages for breach of a contract. Before Audenried, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $4,077.40 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and the charge of the court.</p>

<p>Appeal, No. 156, Jan. T., 1915, by defendant, on judgment of C. P. No. 5, Philadelphia Co., Dec. T., 1912, No. 436, on verdict for plaintiff, in case of Anna V. L. Anderson v. Keystone Type Foundry.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Staake, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,000.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Negotiable instruments — Promissory notes — Defenses—Affidavit of defense — Sufficiency.</p> <p>In an action by tbe endorsee of a promissory note against the maker, an affidavit of defense is sufficient where it admits the execution and delivery of the note, but alleges that prior thereto, the plaintiff, the payee of the note, and the defendant agreed that the note should be given by defendant to the payee, a lumber company, as advance payment for lumber to be sold and delivered to defendant and that the note should thereupon be endorsed by the lumber company to plaintiff, to whom it was largely indebted, and who held a mortgage on the entire plant of the lumber company; that plaintiff agreed he would not interfere with the shipments of lumber to the defendant, but that in violation of his agreement he caused foreclosure proceedings to be brought on the mortgage against the lumber company, thereby preventing the lumber company from fulfilling its contract to deliver to defendant the lumber for which he had given the note.</p>

<p>Lunatics — Maintenance—Reimbursement from lunatic’s estate— Claim of Commomuealth.</p> <p>1. The law implies an obligation on tbe part of a lunatic or bis estate, to reimburse those who have supplied his necessities.</p> <p>2. An estate acquired by a lunatic after he became a public charge, is liable for his previous maintenance.</p> <p>3. The Act of June 1,1915, P. L. 661, providing for the collection by the Commonwealth of amounts expended for the maintenance of a lunatic confined in a State hospital, applies to the collection of claims due the Commonwealth at the time of its passage as well as those which became due thereafter.</p> <p>4. Where an indigent lunatic was confined in a State.hospital, and thereafter, but prior to the passage of the Act of 1915, acquired an estate, the Commonwealth was entitled to recover from the guardian of the lunatic’s estate, all amounts expended by it for the maintenance and support of the lunatic, including amounts expended by it previous to the acquisition of the estate by the lunatic.</p>

<p>Lunatics — Ca/re and maintenance — Expenses — Collection by Commonwealth — Constitutional law — Constitution of Pennsylvania, Article III, Section 7.</p> <p>1. The Act of June 1, 1915, P. L. 661, authorizing the collection by the Commonwealth of the cost of maintenance of insane, feeble-minded, or other persons in institutions supported in whole or in part by the Commonwealth, applies to the entire State and is not a local law.</p> <p>2. The act, although it applies only to claims of the Commonwealth, embraces the interests of all the people, and is not a special law. ■</p> <p>3. Where a lunatic has been admitted to a State hospital as an indigent insane person, although possessed of an estate sufficient for his support, the Commonwealth may recover the sums which it has expended for the maintenance of such lunatic, from the guardian of his estate.</p>

<p>Lunatics — Insane criminals — Maintenance in State hospital — Expenses — Claims of Commonwealth — Recovery—Acts of June IS, 18SS, P. L. 92 j May 21,1889, P. L. 258, and May 1,1907, P. L. IBS.</p> <p>1. Where a person tried for murder has been found not guilty by reason of insanity, and committed by the court to a State hospital for the insane, the Commonwealth may recover from the guardian of the estate of such lunatic, expenses incurred in his care and maintenance, where it appears that his estate is able to repay the amounts expended.</p> <p>2. In such case, there is no merit in the contention that the entire cost of maintenance of the lunatic was chargeable to the county, and that the state was therefore a mere volunteer, in making payments for tbe lunatic’s support, in view of tbe Acts of June 13, 1833, P. L. 92; May 21, 1889, P. L. 258, and May 1, 1907, P. L. 153, wbicb provide for tbe division of sueb expense between tbe counties and tbe State, in tbe proportions named by tbe acts.</p>

<p>Negligence — Master and servant — Street railways — Motorman— Repair car — Oollision—Rule of company — Gase for jury.</p> <p>In an action by an employee, against a street railway company, to recover damages for personal injuries, sustained in a head-on collision between a repair car operated by the plaintiff, and another car on defendant’s single track line, the case is for the jury and a verdict and judgment for the plaintiff will be sustained, where it appears that a rule of the company required that' extra cars should precede, and not follow regular cars; that at the time of the accident plaintiff was operating a repair car in violation of such rule, so that when the regular car preceding him passed at a switch, another car bound in the opposite direction, the motorman of the latter relying upon the rule of the company that no extra car would follow the regular car, started onward as soon as the regular car passed, and the collision resulted; and plaintiff testified that the general manager had directed him to‘follow the regular car in violation of the rule, although such statement was denied by the manager and by others present at the time the order was given, who testified that the direction was to lead, not to follow, the regular car.</p>

<p>Judgments — Revival—Scire facias “sued out” or “issued” — Failure of prothonotary to deliver writ to sheriff.</p> <p>A writ of scire facias to revive a judgment is not “sued out” or “issued” within the meaning of the Act of June 1, 1887, P. L. 289, when, in pursuance of a prsecipe, the writ is prepared by the prothonotary, marked filed, indexed and docketed, hut remains in the prothonotary’s office and is never delivered to the sheriff for service, and such writ does not therefore continue the lien of a judgment. A writ is not “issued” or “sued out” until it passes from the hands of the prothonotary to the sheriff for service.</p>

<p>Decedents’ estates — Attorney and client — Contracts—Fees—Excessive fee — Estoppel—Fixing of fee by court — Appointment of auditor — Practice, O. C.</p> <p>1. The claim of an attorney for a fee for services rendered as counsel for an administratrix of a decedent’s estate is not restricted in amount by an alleged contract between the administratrix and the attorney where it appeared that the only evidence in support of such contract was that the heirs had met and agreed upon $10,000 as the amount of the fee, that when the amount was stated to the attorney he neither accepted nor declined it; that he thereafter regarded himself as dismissed from connection with the affairs of the estate, but the administratrix several days later asked him to continue to represent it, telling him “to consider the matter closed that occurred the other night (referring to the failure to agree on the amount of the fee) and go on with the estate as I told you in the beginning”; that the details of such conversation were indistinct and the administratrix admitted that her recollection thereof was uncertain, and that she had no subsequent conversations on the subject; and the administratrix upon filing her account attached a memorandum thereto stating that all the work had been done by the attorney for the estate, and asking the court to fix the amount of his counsel fee.</p> <p>2. In such case the fact that the husband of one of the heirs wrote the claimant after the conversation between the claimant and administratrix in which claimant’s services as counsel were continued, to the effect that his compensation was to be $10,000, the receipt of which letter claimant acknowledged without comment, does not estop 'claimant from subsequently asserting a claim for a larger amount where it did not appear that the administratrix had authorized such communication.</p> <p>3. In such- case the finding of an auditor, appointed by the court to fix the amount of counsel fee, that claimant’s compensation should be $25,000.00, will be sustained where it appears that the estate was valued at $2,500,000; and there was uncontradicted testimony to the effect that $36,000 would have been a reasonable sum for settling the estate.</p> <p>4. In such case the Orphans’ Court has jurisdiction either to fix the fee, or to appoint an auditor to hear the testimony, and fix the fee in the first instance.</p>

<p>Negligence — Street railways — Wagon—Collision— Contributory negligence — Case for jury — Damages—Measure of damages — Profits of business — Services of minor son — Evidence.</p> <p>1. In an action against a street railway company to recover damages for personal injuries sustained in a right angle collision at midnight between a one-horse wagon driven by plaintiff and one of defendant’s cars, the case is for the jury and a verdict and judgment for the plaintiff will be sustained where plaintiff testified that just before attempting to cross the track on which he was struck he looked in the direction from which the car came, and saw it about 300 feet away, that his horse was at the time walking at the rate of two and a half miles an hour, that the car approached at a terrific speed and struck the wagon on the rear of the hub of the front wheel, throwing plaintiff out and causing the injuries complained of.</p> <p>2. In such case where plaintiff’s testimony as to the points where he looked before going on the track was slightly confused, his reiterations that he made an observation a few feet from the track on which he was struck, justifies a finding that he looked immediately before driving upon the track.</p> <p>3. In such case defendant’s contention that plaintiff’s testimony presented a mathematical impossibility cannot be sustained where plaintiff testified that the car was “about” at certain points, that it was midnight when the accident occurred, that the car approached with glaring headlights and at a minimum speed of 25 miles an hour, so that it was not possible that the plaintiff could have Seen to a nicety just where the car was at any given time.</p> <p>4. In an action brought by a man who is in business for himself to recover damages for personal injuries, the measure of damages is the expense plaintiff was put to in his business, if any, and it is proper for the court to charge that if before the accident plaintiff had employed a helper at a certain amount per month and thereafter employed him at the same price, and plaintiff was not put to any additional expense as a result of the accident, he lost no money on that account.</p> <p>5. In certain instances where one as a result of injuries received through the negligence of another has been entirely deprived of the power to carry on a business in which his personal labor and superintendence were the major assets, or where one had died as the result of his injuries, and the evidence showed regular sums given his family which were earned in the business which consisted principally of his labors and management, evidence has been permitted concerning the net earnings of the injured or deceased person on the theory that it is the only way, under such circumstances, satisfactorily to show earning power. The general rule, however, is that profits derived from an investment or management of a business enterprise are not earnings and therefore the profits of a business which one is connected with cannot be made use of as a measure of his earning power.</p> <p>6. In such case where it appeared that plaintiff a year and a half after the accident put his minor sop. to work to assist him as well as continuing the services of another helper who had been in his employ since before the accident, plaintiff could not recover the value of his son’s services in the absence of a demonstrated earning power on his part, the fruits of which the plaintiff had enjoyed, and the court did not err in so charging the jury.</p> <p>7. It was not reversible error for the trial judge in such case to charge the jury that, if they believed, but for the accident, plaintiff would have been able to do his regular work, and with the boy’s help could have dispensed with the services of his hired man, they might consider, in estimating the damages, the money plaintiff was obliged to pay the man.</p>

<p>Appeal, No. 1, May T., 1916, by 'Henry A. Yost, from decree of O. P. Dauphin County, June T., 1916, No. 455, dismissing objections to nomination petition in the matter of the petition to have the name of J. Washington Logue printed on the official ballot of the Republican Party for the office of Representative in Congress.</p> <p>Objections to nomination petition.</p> <p>The facts appear in the following opinion of the lower court, dismissing the objections:</p> <p>The objectors contend that the paper filed in this office is not a nomination petition and is of no validity whatever, because the proofs show that it is not accompanied by such affidavits as are required by statute. We cannot agree with this contention. On the argument and at the hearing the principal contention urged was that the objections were filed under Paragraph “0” of Section 8 of the Act of July 12, 1918, P. L. 719. The nomination petition consists of twelve sheets, to each of which is attached an affidavit, in which the affiant vouches for all the signatures on the sheets. Upon the hearing, it was shown that the affiants did not have personal knowledge as to all the persons or signatures vouched for. It was not disputed that the signatures were genuine. The proofs submitted went only to the competency of the affiants and not to the genuineness of the signatures. The objection, therefore, under sub-division “G” of Section 8 has not been sustained and is therefore overruled. Accordingly, the objection to the nomination petition is dismissed at the cost of the objectors.</p> <p>The prothonotary is directed to certify this order to the secretary of the Commonwealth.</p> <p>The court dismissed the objections. Henry A. Yost, objector, appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Practice, G. P. — Buies of court — Common Pleas Court of Allegheny County — Bule HO — Validity.</p> <p>Rule 140 of the Common Pleas Court of Allegheny County providing that a defendant in an action of trespass may be required to file a bill of particulars of his defense, is inconsistent with the common law and contravenes the Procedure Act of May 25, 1887, P. L. 2Y1, and is void.</p>

<p>Appeal, No. 398, Jan. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1911, No. 357, on verdict for plaintiff in case of The United States of America, to Use of Merritt & Company, a Pennsylvania Corporation, v. Illinois Surety Company, a Corporation.</p> <p>Assumpsit on bond given to the United States, under Act of Congress of February 21, 1905, conditioned for payment of persons furnishing labor or materials in prosecution of work. Before Sulzberger, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $1,907.81 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion to dismiss the case for want of jurisdiction.</p>

<p>Appeal, No. 238, Jan. T., 1915, by defendant, from judgment of C. P. Schuylkill Co., March T., 1913, No. 346, on verdict for plaintiffs, in case of Joseph Kierkowsky, a minor, by his father and next friend, William Kierkowsky, and William Kierkowsky v. Joseph B. Connell and others to plaintiff unknown, trading as The Kaska William Supply Company.</p> <p>Trespass to recover damages for personal injuries. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court stales the facts.</p> <p>Verdict for Joseph Kierkowsky for $3,000 and for William Kierkowsky for $500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Negligence — Beal property — Vaults—Children — Death — Non-suit.</p> <p>1. A property owner is not bound to maintain his property so that a person wandering thereon, whether adult or child, may not sustain injury.</p> <p>2. In an action to recover damages for the death of plaintiff’s minor child, who while straying upon a lot owned by defendant fell into a vault which contained water and was drowned, a non-suit was properly entered where it appeared that the vault was located at the rear of the'lot at a point not ordinarily frequented by children, and there was no evidence of anything upon the lot to attract children, or to charge defendant with the knowledge that the vault was filled with water.</p>

<p>Negligence — Master and servant — Assumption of rislc — Moving machinery — Act of May 2, 1905, P. L. 852 — Practice, O. P. — Statement of claim — Amendments—Statute of limitations — Nonsuit.</p> <p>1. After the statute of limitations has run, a plaintiff cannot by amendment change his cause of action from a common law to a statutory proceeding.</p> <p>2. Where an employee continues to work at a place he knows to be dangerous and voluntarily takes the chances of being injured, he cannot hold his employer liable for the consequences of his rashness.</p> <p>3. In an action at common law to recover damages for injuries ¡sustained by a workman in consequence of coming in contact with the moving pin of a crank shaft, where it appeared that while plaintifE was endeavoring to oil the machinery, of which at the time he was in entire control, he stood upon a greasy surface and fell, suffering the injury complained of, the trial judge did not err in refusing to allow plaintiff to amend his statement so as to allege a cause of action under the Factory Act of May 2, 1905, P. L. 352, after the statute of limitations had run, or in holding that plaintiff had voluntarily assumed the risk of performing the work in the manner in which he endeavored to do it, and properly entered a compulsory nonsuit.</p>

<p>Eminent domain — Railroad companies — Title—Damages—Measure of damages.</p> <p>1. When the road of a railroad company has been located and its location formally adopted by the directors, title passes to the company as against rival corporations, and when thereafter a bond to secure the damages has been given and accepted by the owner or approved by the court the title to the right .of way passes to the corporation, and the owner of the property is confined to his remedy upon the bond in connection with the statutory provisions for assessment and collection of the damages.</p> <p>2. After the commencement of condemnation proceedings, a railroad company cannot, without plaintiff’s consent, diminish the amount of damages by conceding any of the rights which it has acquired by such proceedings, or by a discontinuing or abandoning the whole or any part of the right of way or any right acquired below or above the surface. The principal and surety on the bond are fixed for the amount of damages sustained as of the date of the appropriation and all such damages the owner is entitled to recover, irrespective of whether the railroad company exercises all the rights which it acquired.</p> <p>3. In determining the amount of damages due in condemnation proceedings, a railroad company should not be allowed to defeat the claim for damages or diminish to any extent the amount thereof by being permitted to concede or grant to the plaintiff an overhead crossing or tramway or any other rights which the defendant acquired by the condemnation proceedings.</p> <p>4. In condemnation proceedings for railroad purposes,, it appeared that plaintiffs-were the owners of three contiguous tracts of land which they had acquired from different owners, that the railroad right of way crossed one of such tracts only, that the three tracts were valuable as one coal proposition which could be advantageously worked from an opening on the smaller tract, crossed by the railroad, and that by means of the construction of the railroad access from such opening to a navigable river was interfered with. The railroad company contended that in the assessment of the damages the plaintiffs should be confined to the tract over which the railroad was located and constructed. The court allowed the ¿jury to assess the damages occasioned the three tracts considered as one coal proposition and instructed the jury that in arriving at their verdict they must consider the particular and special advantages accruing to and affecting the value of plaintiff’s land by reason of the presence of railroad and the facilities which it afforded. Held, that defendants were sufficiently protected by the charge and a verdict for plaintiff was sustained.</p>

<p>Contracts — Sales of real estate — Statute of frauds — Memorandum — Sufficiency—Oral agreements — Conflicting evidence — Case for jury_</p> <p>1. Orally to identify the subject-matter of a contract for the sale of real estate, referred to in a written instrument by general description or through the medium of a recognized name, is essentially different from an attempt by parol evidence to determine and define the subject-matter itself; in one case the name or description is simply applied to the thing in view, while in the other the thing itself is established.</p> <p>3. In an action to recover hand-money paid by plaintiffs to defendant under a contract for the sale of real estate, it appeared that plaintiffs refused to take title, alleging that the deed which defendant had tendered did not comply with the requirements of the contract. Defendant’s counterclaimed for damages for the refusal of plaintiffs to comply with the agreement. Defendant contended that the contract was in writing and offered in evidence a letter signed by plaintiffs and addressed to defendant, reading “Referring to our conversation over the ’phone yesterday in regard to the thirty thousand acres on the head waters of the Elk river in West Virginia which our Mr. Kaye purchased from you last Monday, we think it would be a good plan for our Mr. Kaye to go along with you to Elkins next week, as we are anxious to get all the maps and descriptions of the deeds and rights of way belonging to all your holdings in these lands as soon as' possible, so we will have plenty of time to examine same before we sign the final detailed agreement which you are making.” It appeared that the property dealt with consisted of a great number of separate tracts some of which defendant owned and on some of which he held options. The acreage of certain of the tracts was uncertain, and the title to others was in dispute. Held, that the references to the land in question were inadequate to identify the property intended to be conveyed and that the writing was insufficient to meet the requirements of the statute of frauds of West Virginia where the land was located, which was practically the same as the statute of frauds of'Pennsylvania, and that defendant could not, therefore, recover damages for plaintiff’s alleged breach of the contract.</p> <p>3. Where in such case the evidence as to the terms of the contract was conflicting and plaintiffs’ evidence tended to show that the contract was induced by misrepresentations as to the extent of defendant’s holdings, but where such evidence was denied by the defendant, the question of fraud was for the jury, and a verdict and judgment for defendant for costs was affirmed.</p>

<p>Appeal, No. 79, Jan. T., 1916, by defendants, from decree of C. P. No. 4, Philadelphia Co., June T., 1915, No. 4782, requiring defendants to turn over to plaintiffs certain money and property, in case of Howard M. Schriner, Thomas Chriswell, John W. Creamer, Sr., Charles Ulmer, Theodore O. Dost, Frederick Steger, Charles Pfautz, Henry T. Wilt, Joseph Dean and Joseph A. Wilt, on Behalf of Themselves and the Other Officers, Trustees and Members of Quaker City Circle, No. 97, Brotherhood of America of the State of Pennsylvania, v. John Sachs, Sr., Levi Myers, Michael Ryan, Henry Demberger, William Kaelberger, William Reimenschneider, Harry Ruehman, John Pretz and John Sachs, Jr., Officers, Trustees and Members of Quaker City Circle, No. 97, Brotherhood of America of Philadelphia, County of Philadelphia, of the State of Pennsylvania, as Representing Themselves and All Others Having the Same Interest.</p> <p>Bill in equity for a mandatory injunction. Before Carr, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court decreed that defendants should turn over to plaintiffs the property, effects and cash now in their possession, which was the property of Quaker City Circle, No. 97, Brotherhood of America, of the State of Pennsylvania. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law of the hearing judge and the decree of the court.</p>

<p>Appeal, No. 177, Jan. T., 1915, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., March T., 1910, No. 2218, on verdict for defendant, in case of West End Trust Company, executor of Henry A. Borell, deceased, v. The Fidelity Mutual Life Insurance Company.</p> <p>Assumpsit to recover dues and assessments paid by the holder of an insurance policy to the company. Before Carr, J.</p> <p>It was claimed that the insured had rescinded his contract of insurance. In directing a verdict in favor of the defendant, the trial judge held that under the undisputed evidence in the case, the decedent had not acted in gbod faith and with reasonable promptness in rescinding.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were various rulings on evidence and instructions to the jury.</p>

<p>Habeas Corpus, original jurisdiction, Miscellaneous Docket, 1915, No. 192.</p> <p>Tbe facts appear in the opinion of the Supreme Court and in Commonwealth, ex rel. Lieberum, v. Lewis, 253 Pa. 175.</p>

<p>Jurisdiction, O. G. — Determination of rights under will — Buie to show cause.</p> <p>The Orphans’ Court has no ¡jurisdiction to entertain a petition for a rule to show cause why real estate of a decedent who died seized thereof should not be turned over to a beneficiary under the will by the executors.</p>

<p>Appeal, No. 405, Jan. T., 1915, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T-, 1914, No. 2314, on verdict for plaintiff, in case of Filippo Cecola v. 44 Cigar Company, a Corporation.</p> <p>Trespass to recover damages for personal injuries. Before Staples, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>