Volume 254 — Pennsylvania State Reports

Appeal, No. 434, Jan. T., 1915, by plaintiff, from decree of C. P. Luzerne Co., March T., 1914, No. 3, in equity, refusing an injunction, in case of Robert B. Alexander v. Wilkes-Barre Anthracite Coal Company and Elizabeth C.v Alexander. Bill in equity for an injunction. Before Woodward, J. The opinion of the Supreme Court states the facts. The court on final hearing refused the injunction and dismissed the bill. Plaintiff appealed.

<p>Appeals, Nos. 172 and 170, Jan. T., 1915, by plaintiff and defendant, from decree of C. P. Huntingdon Co., Dec. T., 1910, No. 169, on bill in equity for an accounting, in case of Frances Marmaduke, executrix of tbe last will and testament of John A. Brown, deceased, and Frances Marmaduke, individually, v. Harry Brown and Louis R. Brown, surviving partners of the firm of Philip Brown’s Sons; and Harry Brown and Louis R. Brown trading and doing business as Philip Brown’s Sons; and Harry Brown and Louis R. Brown, individually.</p> <p>Exceptions to report of master.</p> <p>The facts appear in the following opinion of Woods, P. J., dismissing exceptions to the master’s report:</p> <p>As can be seen by the number this case bears, it began over four years ago. The delay in its determination may have been caused by a number of circumstances. Considerable litigation arose between the parties in this bill, some of which are now in the higher courts for consideration.</p> <p>The bill was presented by the widow of one of the partners of the firm of Philip Brown’s Sons doing business in Huntingdon, Pennsylvania. The firm was originally composed of four brothers, all sons of Philip Brown: Harry, Louis R., John A. and Edward. Edward died, leaving the firm composed of the remaining three brothers, and the business still being in the name of Philip Brown’s Sons. John A. Brown, the husband of the plaintiff to this bill, died September 30, 1909, leaving a will, by which his widow, the plaintiff, became sole legatee of his interest in his estate. The bill was filed November 12, 1910, by the widow, who in the meantime had again married and removed to another state, asking for an accounting of the surviving partners of her former husband in the business, as set forth in the bill and answer, which answer was filed December 10, 1910. The records show that a master was appointed October 7, 1911, to hear the parties, find the facts and to state said account.</p> <p>As stated above, considerable litigation arose between the parties, which has delayed the settlement of this case.</p> <p>The master filed his report on July 28,1914, to which a large number of exceptions had been filed. The court heard the argument on the exceptions sometime in the month of December, 1914, and the papers came into our hands about four weeks ago.</p> <p>The defendants complain as to the findings of the auditor and especially direct our attention to the charges made by him. We have given this matter very full and careful consideration, reading and examining the evidence with care, and considering the law as applicable to the questions involved.</p> <p>The master allowed all claims of the plaintiff and charges the defendants with a large sum of money, in-eluding an item of good will, which he placed at $12,-813.84. In arriving at this amount he depended upon the. one witness, an accountant from Baltimore, Maryland, by the name of Edward Fuller, who took the books of the business conducted by the firm and arrived at an average on a number of years. This is the largest item except one, which the master holds the liquidating partners accountable. The largest item is the accounts receivable, which reaches $19,435.87.</p> <p>The master allows the plaintiff for the rents of the real estate which belonged to the firm and which included certain houses located in Huntingdon, also the large building in which the business was conducted by the firm. He also allows certain other items, amounting in all to $45,692.42, giving to the widow the salary to which he adds interest, amounting to $483.75, and then awards to her as executrix and individually the one-third of the balance.</p> <p>After an examination and consideration of the master’s report, we confirm his findings in all except the item of good will, and in this we cannot agree with him.- In his discussion of the question of good will he states, “As a general proposition of trade, it is a fact of common knowledge that there exists an intangible asset to every going business, the value of which is frequently most difficult to determine, and it is often open to dispute. This is known as good will.”</p> <p>The master then determines the question upon the testimony of one witness, who is an expert accountant, and who, after examining the books of the firm, .concluded from the amount of business done within a certain number of years that the good will of the firm was of the value of $12,813.84.</p> <p>The circumstances surrounding each business should be taken into consideration in determining the question of good will. The place or location where the business is carried on is one of the essential elements to consider in determining the question of good will, “In a mercantile partnership the sale of the good will conveys an interest in a commercial business, the trade of which may be largely, if not wholly dependent upon locality, and the right which the vendee acquires under such a purchase is the chance of being able to retain the trade connected with the business where it has been conducted”: Brown v. Benzinger, 118 Md. 29, 37.</p> <p>Let us review the circumstances which attached to the business of Philip Brown’s Sons. The partners were all three brothers and sons of Philip Brown, doing business at a place and in a building which belonged to the partnership as individuals. John A. Brown died and the burden of liquidating falls upon the two surviving brothers. It is for them to do the best they can in determining what each member of the firm is entitled to receive. The two brothers, sons of the same Philip Brown, continue in the business and at the same place. The firm of Philip Brown’s Sons, in one sense of the word, neither loses nor gains by the death of John A. Brown, because Philip Brown’s Sons still remain in the other two brothers at the same place of locality, and they are bound to account for the business. Shall they destroy the firm’s name and thereby injure all parties concerned? The record shows the business was continued in with the consent of all, and all parties benefited thereby, until April 13, 1911, when by mutual consent the widow of John A. Brown sold her interest “in the said balance of the goods and chattels as contained in the said inventory,” still leaving her interest in the real estate to be determined in the future.</p> <p>The fact that the liquidating partners used the firm name of Philip Brown’s Sons, of which they themselves were members, does not of itself conclude that they should account for the good will; they were and are the true Philip Brown’s Sons, a name which they have a right to use, especially during the time they were disposing of the firm’s personal property: Kaufmann v. Kaufmann, 239 Pa. 42.</p> <p>The master allowed the plaintiff a certain sum which he found from the evidence was due her as rent from the real estate, rent for the store room in which the firm had been conducting the business for years. “A banking firm dissolved and appointed a partner to liquidate: On the dissolution, he commenced banking in the firm house on hi’s own ’account under the firm name, and also settled the firm business there. Held, that under the circumstances he was not chargeable with the value of the good will”: Musselman & Clarkson’s App., 62 Pa. 81.</p> <p>In the case just cited, the court said (p. 83) : “But supposing the rule to be more extensive by usage with us, and I think it is, how can there be a good will of a business in favor of. the members of a firm, where the firm has ceased by its own limitation, and no exclusive right to follow the business in that place belongs to them? In that case, as a distinct property, it is gone. It then attaches to and enhances the realty, and the value of it is realized in renting or selling that.”</p> <p>In the case at bar, Philip Brown’s Sons increased both the rental and selling value of the real estate. The master allowed that increased rental value to be chargeable as an asset against the liquidating partners,- and the plaintiff will benefit in the sale of the real estate increased by the Philip Brown’s Sons having done business at that place and in that building. The court then adds in the case last cited: “Here the appellee is charged with the rental of the place, and in this was included, of course, all the advantages belonging to it as a site. “Good will” is “simply the probability that old customers will resort to the old place”: Cruttwell v. Lye, 17 Ves. Jr. 335; White v. Trowbridge, 216 Pa. 11.</p> <p>As we said above, good will is property in some circumstances, but where the members of the firm are all sons of the same father, and the firm name is that of the father, and where one dies leaving to survive him two brothers who undertake to liquidate and account to the widow of the deceased brother, they cannot be charged with good will based on the business of the company for a number of years previous, to the death, where the members of the firm have an equal share in the real estate in which the business is carried on, and when the widow sells and transfers her interest in the personal property to the remaining members of the firm within two years after the death of her husband. These, and other circumstances connected with this case, will hot warrant the surviving partners being charged with good will, and that part of the master’s report must be set aside. . ■</p> <p>The findings of the master as to the charge of rent is confirmed, as is also the charge of salary, accounts receivable, and goods sold. The item of interest was a proper charge under the evidence as developed in this case.</p> <p>The liquidating partners would be entitled to a credit of one-third of the proper charges which were necessary to the settlement of the business. The evidence shows the employment of two clerks to assist in the settling of the accounts and sale of goods, and also .for stamps and stationery.</p> <p>We sustain the first, second, third, fourth, and fifth exceptions as to the item of good will.</p> <p>Hereto attached find account stated as per above find-</p> <p>ings. J. M. Woods, P. J.</p> <p>ACCOUNT STATED.</p> <p>Rent of store and interest.................$ 2,997.00</p> <p>Rent of houses and interest............... 321.95</p> <p>Goods sold -■......................... i..., ,7,145.11</p> <p>Accounts receivable..................19,435.87</p> <p>Salary of John A. Brown, deceased......... 483.75</p> <p>Beaver mortgage......................... 1,757.00</p> <p>Trimer'judgment..............:.......... : 387.00</p> <p>■Balance in First National Bank............ 350.90</p> <p>$32,878.58</p> <p>Opinion of Court below — Opinion of the Court. [254 Pa. Distributed as follows:</p> <p>Total amount for which the defendants are</p> <p>chargeable.............................$32,878.58</p> <p>Costs .as shown by the masters’ report....... 629.00</p> <p>$32,249.58</p> <p>Costs of the liquidations:</p> <p>One-third of salary of W. L. Johnson .......................... $315.33</p> <p>One-third of salary of Mr. Fluke .. 253.33</p> <p>Postage, etc..................... 18.00</p> <p>- 586.66</p> <p>$31,662.92</p> <p>Distribution:</p> <p>To the widow of John A, Brown,</p> <p>salary.........................$483.75</p> <p>One-third John A. Brown’s</p> <p>estate..................$10,393.05-2-3</p> <p>L. & H. Brown...........$20,786.11-1-3</p> <p>-$31,662.92</p> <p>The court dismissed the exceptions. Plaintiff and defendant appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

Appeal, No. 446, Jan. T., 1915, by plaintiff, from judgment of C. P. Huntingdon Co., May T., 1912, No. 146, for defendant n. o. v., in case of Y. A. Oswald v. Margaret A. Jones and H. D. Taylor. Assumpsit on a promissory note. The facts appear in the following opinion of Woods, P. J., sur defendant’s motion for a new trial and for judgment n. o. v.: The foregoing case was tried before a jury, who found for the plaintiff.

<p>Appeal, No. 31, Jan. T., 1916, by last two defendants, from judgment of C. P. Clearfield Co., Sept. T., 1911, No. 313, on verdict for plaintiff, in case of The Phoenix Mill Company, a corporation, v. Amos Kresge, Austin Blakeslee and George B. McClelland.</p> <p>Assumpsit on a surety bond. Before Bell, P. J.</p> <p>From the record it appears that the bond in suit is as follows:</p> <p>“Know all men by these presents: That I, Amos Kresge, as principal, of DuBois, Pennsylvania, and Austin Blakeslee and George McClelland, as sureties, are held and firmly bound unto The Phoenix Mill Company (a corporation incorporated under the laws of the State of Minnesota) of Minneapolis, Minn., engaged in a general flour and milling business, in the sum of two thousand dollars ($2,000.00), to be paid to the said Phoenix Mill Company, its representatives or assigns.</p> <p>“For which payment well and truly to be made we bind ourselves and our heirs, executors, administrators, and assigns jointly and severally, firmly by these presents.</p> <p>“Sealed this 29th day of July in the year of our Lord one thousand nine hundred and five.</p> <p>“The condition of this obligation is such, That, Whereas, W. D. Hammond, of Binghamton, New York, General Agent for the said Phoenix Mill Company has appointed the said Amos Kresge local agent for said Phoenix Mill Company for the sale of its goods within certain territory alloted to him, in the State of New York.</p> <p>“And whereas, it is hereby agreed by the said Amos Kresge, local agent for the said Phoenix Mill Company, that said Amos Kresge shall remit to said Company the amount of all moneys due to it resulting from the sale of all goods, either sold by him to any purchaser, or purchased by him on his own account, or sold upon any orders approved by him, less the amount of his commission as agreed upon for making sales, within forty-five days after the date of bill of lading accompanying the shipment of said goods.</p> <p>“Now, therefore, if the said Amos Kresge, shall well and faithfully perform upon his part all conditions of this bond, and shall well and faithfully account for and pay to said company, the amount of all moneys due it, resulting from the sale of all goods, either sold by him to any purchaser, or purchased by him on his own account, or sold upon any orders approved by him, less the amount of his commission as agreed upon for making sales, within forty-five days after the date of the bill of lading accompanying shipments of said goods, then this obligation to be void and of no effect, otherwise to remain in full force and effect.</p> <p>“In testimony whereof, we' have hereunto set our hands and seals this 29th day of July, 1905.</p> <p>“Signed, sealed and delivered in the presence of “Louis E. Boyer.</p> <p>(Signed)</p> <p>“Amos Kresge, (seal) ;</p> <p>“Austin Blakeslee, (seal) ;</p> <p>“Geo. B. McClelland, (seal).”</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,168 and judgment thereon. Defendants, Austin Blakeslee and George B. McClelland, appealed.</p> <p>Errors assigned, among others, were (1 and 4) in refusing to direct a verdict for the plaintiff, and (5) in refusing plaintiff’s motions for a new trial and for judgment n. o. v.</p>

<p>Appeal, No. 249, Jan. T., 1915, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1913, No. 87, on directed verdict for plaintiff in case of Reatba Benson v. Mary B. Nicholas.</p> <p>Action in ejectment. Before Walking, P. J.</p> <p>Tbe opinion of tbe Supreme Court states tbe case.</p> <p>Tbe lower court directed a verdict for tbe defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was- in directing a verdict for tbe defendant.</p>

Appeal, No. 130, Jan. T., 1916, by Texie E. Reeder, from decree of O. C. Erie Co., Nov. T., 1915, No. 23, dismissing exceptions to auditor’s report in Estate of Samuel T. Reeder, deceased. Exceptions to auditor’s report. Before WhittelSEY, J. Tbe facts appear by tbe opinion of tbe Supreme Court. Tbe court dismissed exceptions to tbe report of tbe auditor. Texie E. Reeder appealed. Erre»■ assigned was in dismissing exceptions to tbe auditor’s report.

<p>Negligence — Master and servant — Injury to employee of inde~ pendent contractor — Liability of owner — Judgment for defendant.</p> <p>In an action against an owner of real estate by an employee of an independent contractor engaged to construct certain buildings thereon, to recover damages for personal injuries sustained in a fall resulting from defects in a scaffold erected by the contractor, judgment was properly entered for the defendant non obstante veredicto where it appeared that there was no contractual relation between plaintiff and defendant. Plaintiff’s right to recover, if at all, was against his employer.</p>

<p>Wills — G onsiruction — Intention.</p> <p>1. Where a testator makes an absolute gift he cannot couple with it a direction to withhold payment until such time as the legatee is likely to make proper use of the money.</p> <p>2. Testator’s will contained the following provision: “to my Dear May Darde of Broth Reupen a good outfit to start housekeeping when she’ get married, before I die, and May to get One thou-</p> <p>-.sand Dollars out of my estate and be given to her when my wife Amnia see fit to give it to her that she make Proper use of it: without Intres.”, The niece, May, daughter of testator’s brother Reuben married after the death of the testator and claimed both a sufficient amount for an outfit and the sum of $1,000. Held, the intention of testator was disclosed to make a gift of an outfit if his niece had married in his lifetime and he had not furnished her such an outfit, but if she did not marry in his lifetime she was to have an absolute gift of $1,000, but no outfit and that the attempt in the will to restrain the payment to her failed for invalidity.</p>

<p>Practice, O. C. — Decedent’s estates — Adjudication of account— Distribution of funds — Bill of review — Proof of fraud — Practice, Supreme Court.</p> <p>Where distribution is made in .accordance with the findings of an auditor’s report, which is unappealed from, a bill of review on the ground of fraud is properly dismissed by the lower court, where it appears from a review of the testimony that the court committed no error in finding that no fraud was shown to have entered into the decree or induced it.</p>

<p>Common carriers — Railroad companies — Discrimination — Side tracks — Interstate Commerce Act of Feb. I, 1887, c. 101\, 84 U. S. Stat. 879, secs. 8, 8 and 9 — Act of June 4, 1888, P. L. 78 — Construction — Intention.</p> <p>1. Sections 8, 9 and 22 of the Interstate Commerce Act relating to unlawful discrimination, construed with the statute as a whole, show that the act was both declaratory and creative. It gave shippers new rights, while at the same time preserving existing causes of action; it did not supersede the jurisdiction of state courts in any case new or old where the decision did not involve the determination of matters calling for the exercise of administrative power and discretion of the commission, or relate to a subject as to which the jurisdiction of the Federal Court had been otherwise made exclusive.</p> <p>2. There are two forms of discrimination, one in the rule and the other in the manner of its enforcement; one in promulgating a discriminatory rule, the other in the unfair enforcement of a reasonable rule. In a suit where the rule of practice itself is attacked as unfair and discriminatory, a question is raised which calls for the exercise of judgment and discretion of the administrative power which has been vested by congress in the Interstate Commerce Commission; until that body has declared the practice to be discriminatory and unjust no court has jurisdiction of a suit against an interstate carrier for damages occasioned by its enforcement. But if the carrier’s rule, fair on its face has been unequally applied, and the suit is for damages occasioned by its violation or discriminatory enforcement, there is no administrative question involved, the court being called on to decide a mere question of fact, as to whether the carrier has violated the rule to plaintiff’s damage; such suit though against the carrier for damages arising in interstate commerce, may be prosecuted either in a State or Federal Court.</p> <p>8. Where a railroad company has refused the application of a shipper for switching facilities, thereby violating the provisions of the federal and state acts relating to unlawful discrimination the statute of limitations commences to run from the date of the refusal of the application, not from the date when the application was made.</p> <p>4. In an action against a railroad company for unlawful discrimination in refusing to grant plaintiff’s request for a switch connection for a mine while such facilities had been granted to other and competing mines under like conditions, where it appeared that the railroad company had never adopted any rule for governing the regulation of the distribution of such facilities, so that it was not the violation of a rule which, was complained of, but the arbitrary and unjust denial of a right given by statute, the case was for the jury and a verdict and judgment for plaintiff was sustained: Puritan Coal Mining Oo. v. Penna. R. R. Co., 237 Pa. 420, followed.</p>

<p>Appeal, No. 384, Jan. T., 1915, by defendants, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1911, No. 840, on verdict for plaintiff, in case of Willis H. Beach v. Isadore Hyman, Herman Hyman, Benjamin Beecher, Eli Hageman, trading as Hyman Brothers & Company.</p> <p>Trespass to recover damages for personal injuries. Before Shoemaker, 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 in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Negligence — Master and servant — Automobiles—Extent of servant's authority — Conflicting evidence — Case for jury.</p> <p>1. Where the owner of an automobile after being driven to a hotel by his chauffeur lends his ear to the chauffeur for the purpose of making a visit, and directs him to return to the hotel for the purpose of taking the owner home later in the evening, the chauffeur ceases to he a licensee and the relation of master and servant is resumed when the visit is accomplished and the chauffeur starts on the return drive to the hotel.</p> <p>2. Where in an action to recover damages for personal injuries sustained by plaintiff in consequence of being struck by defendant’s automobile, there was evidence, though contradicted, that defendant after being driven to a hotel for the evening, gave his chauffeur permission to take the car for an errand of his own, and that the chauffeur while returning in the car to the hotel for the purpose of taking defendant to his house ran into plaintiff and occasioned the injuries complained of, it was for the jury to determine whether or not the chauffeur was engaged in the business of his master at the time of the injury and a verdict for the plaintiff was sustained.</p>

Appeal, No. 371, Jan. T., 1915, by plaintiff, from order of C. P. Lackawanna Co., Nov. T., 1907, No. 593, striking off judgment, in case of Emily Fischer v. C. S. Woodruff, Exdcutor of Estate of Charles DuPont Breck, Deceased. Rule to strike off judgment. Before Newcomb, J. The opinion of the Supreme Court states the facts. The court struck off the judgment. The judgment plaintiff appealed. Error assigned was the order of the court,

Appeal, No. 243, Oct. T., 1915, by Great Western Lead Manufacturing Company, from decree of C. P. Allegheny Co., Jan. T., 1915, No. 1146, for plaintiff, on bill in equity for an accounting, in case… Held: three of the directors resigned and McGillick, Fritch and Garrison were elected, they with Beltz and M. J. Dain, a nominal stockholder, constituting the board. Garrison was elected president, and Fritch treasurer. Each of the four parties paid $250 to the treasurer.

<p>Appeal, No. 33, Oct. T., 1916, by defendants, from decree of C. P. Allegheny Co., Jan. T., 1915, No. 1116, in equity, for plaintiff on bill in equity for accounting in case of John Beltz v. Samuel Garrison, H. L. Williams, J. E. McGinness, P. E. McGillich, George H. Fritch, William I. N. Lofland and Great Western Lead Manufacturing Co.</p>

<p>Appeal, No. 114, Jan. T., 1916, by Plympton, Gardiner & Company, from decree of O. C. Luzerne Co., No. 591, of 1913, dismissing exceptions to adjudication, in Estate of A. A. Sterling, Deceased.</p> <p>Exceptions to adjudication. Before Freas, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Plympton, Gardiner & Company appealed.</p> <p>Error assigned, among others, was in dismissing the exceptions.</p>

<p>Appeal, No. 125, Oct. T., 1915, by Katherine M. Edwards, Charles E. Dickson and The Safe Deposit & Trust Company of Pittsburgh, Executors of the Estate of Eliza Thaw Edwards, Deceased, from decree of O. C. Allegheny Co., Sept. T., 1914, No. 443, dismissing exceptions to adjudication, in Estate of Eliza Thaw Edwards, Deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Katherine M. Edwards, Charles E. Dickson and The Safe Deposit & Trust Company of Pittsburgh, Executors of the Will of Eliza Thaw Edwards, deceased, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Negligence — Wagons—Lumber—Unloading lumber— Contributory negligence — •Case for jury.</p> <p>1. A man is not required to so guard himself that be can not be injured by the unexpected negligence of another.</p> <p>2. In an action to recover damages for personal injuries sustained by plaintiff as the result of being struck by lumber being chuted from a wagon by one of the defendant’s drivers, the case is for the jury and a verdict for plaintiff will be sustained, where it appeared that plaintiff at the time of the accident was superintending the erection of certain buildings, that he had given directions to the driver of one of the lumber wagons, had turned to give directions for the second load and the driver of the first wagon chuted the lumber, causing it to strike plaintiff; that while the driver knew where plaintiff was standing and plaintiff knew the location and direction of the wagon, the evidence was conflicting as to how far plaintiff stood from the direct line back of the wagon where the lumber would naturally fall, and as to how the lumber came in contact with him.</p>

<p>Municipalities — Indebtedness—Cities of the second class — Act of May 6, 1915, P. L. 260 — Validity—Constitutional law — Constitution of Pennsylvania, Art. I, Sec. 17; Art. Ill, Secs. 7, 8 and 10— Federal Constitution, Hth Amendment.</p> <p>1. Nothing but contracts such as involve property rights are protected by Article I, Section 17, of the Constitution of Pennsylvania, forbidding the passage of any law impairing the obligation of contracts; mere political rights or privileges are not within its purview. The Act of May 6, 1915, P. L. 260, providing that the indebtedness of each city consolidated under the provisions of the Act of February Y, 1906, P. L. Y, shall be paid by the consolidated city, does not offend against this constitutional provision.</p> <p>2. The said Act of 1915, is a supplement to, not an amendment of, the Act of 1906, and does not violate Article III, Section 6, of the Constitution relating to amendments.</p> <p>3. The said Act of 1915 is not a local or special law and does not violate Article III, Section Y, of the Constitution forbidding the passage of local or special laws regulating the affairs of counties, cities, townships, wards, boroughs, or school districts.</p> <p>4. The said Act of 1915 is not contrary to Article III, Sections 8 and 10, of the Constitution limiting the power of municipalities to incur new indebtedness and prescribing the details that must be observed in so doing.</p> <p>5. The said Act of 1915 does not offend against the 14th Amendment to the Constitution of the United States.</p>

Appeal, No. 312, Jan. T., 1915, by defendant, from judgment of C. P. Luzerne Co., Dec. T., 1912, No. 778, on verdict for plaintiff, in case of George J. Llewellyn v. City of Wilkes-Barre. Trespass to recover damages for personal injuries. Before Strauss, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $4,924.83 and judgment thereon. Defendant appealed.

<p>Negligence — Master and servant — Automobiles—Defendant’s son as chauffeur — Scope of authority — Case for jury.</p> <p>1. In an action to recover damages for injuries sustained by a pedestrian in consequence of being run over by defendant’s automobile while being operated by defendant’s son, the' question whether the son was acting within the scope of his duties as his father’s employee at the time of the accident was for the jury and a verdict for the plaintiff will be sustained, where it appeared that the defendant had told a mechanic that he wished the car repaired before he returned from a trip he was about to take, that on the evening of the accident, during defendant’s absence, the mechanic went to defendant’s garage and after making certain repairs took the car out on a testing tour with defendant’s son, that he then turned the car over to the son with directions to take it back to the garage, that the son pursued a direct route home, and through his negligent driving the accident occurred; and where it further appeared that the son was in his father’s employ and had been in the habit of operating the car.</p> <p>2. In such case where plaintiff introduced evidence to the effect that the son had a reputation for reckless driving and that the defendant was aware of' such fact, the court did not err in submitting such question to the jury and in charging that it was the duty of a man to see that his automobile was not run by a careless or reckless person, but by a skillful and competent operator. .</p>

<p>Appeal, No. 27, Jan. T., 1916, by defendant, from judgment of C. P. Luzerne Co., Oct. T., 1915, No. 1519, for plaintiff for want of an affidavit of defense, in case of A. R. Smith and John S. Traill, doing business as Laurel Run Red Stone Company, in their own right and said Smith and Traill to the use of D. M. Rosser, v. Herrick Construction Company.</p> <p>Assumpsit for breach of contract. Before Fuller, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for plaintiff for want of an affidavit of defense. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Corporations — Mortgages—Trustees — Death — Appointment of successor — Act of June 16,1886, P. L. 784.</p> <p>Where the trustee of a corporation mortgage died without having performed any active duties, although the mortgage contained no provision for the appointment of a successor, the lower court properly appointed a successor to the trustee, upon the petition of the holders of overdue and unpaid mortgage bonds, in order that steps might be taken to foreclose the mortgage and enforce payment of the bonds.</p>

<p>Appeal, No. 112, Jan. T., 1916, by T. J. Blodgett, E. Y; Blodgett and Mary Drum, from decree of O. C. Luzerne Co., refusing a citation, in Estate of Asahel Blodgett.</p> <p>Petition for a citation.</p> <p>The facts appear in the following opinion of Freas, P. J.:</p> <p>A. B. Blodgett, the grandfather of our petitioners, entered with others into a lease dated April 13, 1871, of all the coal under certain lands, for the term of ninety-nine years, in consideration of a fixed rate per ton for coal mined, but not less than a stipulated sum each year. Minimum royalties were paid until 1891, when the. mining operations were commenced, and full royalties from that time to the present. This lease was construed in Lazarus’s Est., 145 Pa. 1, to be a sale of the coal, and that the rentals maturing after the death of the grantor were payable as purchase-money to his administrators, and distributable as personalty to those entitled thereto.</p> <p>The said A. B. Blodgett died May 12, 1893, leaving a will reading in part as follows:</p> <p>“Item: I give and bequeath to my beloved wife Mary Blodgett the use, improvement and income of all my estate, real, personal and mixed, during the term of her natural life, and the reversion or remainder of' the same after my death to my children, their heirs and assigns, in common, share and share alike.”</p> <p>One of the children of said A. B. Blodgett, deceased, was Asahel Blodgett, who survived Ms mother and died May 27,1899, and whose will reads as follows:</p> <p>“I make my last will appointing my wife Catherine executrix to whom I give all my estate during her natural life, and then to my children in equal shares.” Asahel Blodgett left to survive him a widow, Catherine, and three children, the petitioners, by a former wife. Catherine took out letters testamentary upon her husband’s estate and on May 25, 1900, filed what purports to be her first and final account, confirmed absolutely July 6, 1900, charging herself with coal royalties amounting to $155.46, and taking credit for preferred claims of $242.47, leaving a balance of $87.01 as due the executrix. To this account she added the following-statement :</p> <p>“There are no unpaid creditors known to the executrix. Coal royalties accruing under said lease, from the interest of A. B. Blodgett, deceased, therein, will come into the hands of accountant, in addition to those above specified, and will be put into this account hereafter. Accountant has also paid sundry debts of decedent, for which she will take credit hereafter. (Signed) Catherine Blodgett, executrix.”</p> <p>The petitioners are the children of Asahel Blodgett and they ask for a citation on Catherine Blodgett to file an account as executrix of their father’s estate. The purpose of the citation is to compel her to account as ex-' ecutrix for all coal royalties she has received under the will of her deceased husband Asahel, on the theory that the widow is entitled only to the interest on the royalties accruing during her lifetime and not to the royalties themselves. The widow admits the receipt of royalties paid to her of $5,596.57, or an average of $385.82 per year, which is the entire income from her husband’s estate. She claims the principal of these royalties as her own, as life tenant under her husband’s will.</p> <p>Asahel, our decedent, died seized under his father’s will of a one-ninth interest in the royalties accruing under the said leáse. In passing from the father who opened the mine to his son, the estate underwent no alteration as to kind or nature. It possessed all the legal qualities in-the hands of the son that it did in those of the father, and their rights thereto were exactly similar. Asahel gave to his widow Catherine an estate of the same kind as his father gave to his widow Mary, viz:' a life estate in his coal royalties.</p> <p>Asahel gave to his widow all his estate during her natural life, which means that he gave her the income of all his estate as long as she lives, with remainder to his children. It is contended that the bequest was to her as executrix, and not personally; but as an executrix as such does not have a natural life it is clear testator had no such intention. That he intended to give his widow the principal' of the coal royalties we have no doubt. They were practically all the estate he had and the principal is sufficient for her support only with great economy, and the interest on them would not keep her alive. No trust was created by his will, for under the law none was necessary.</p> <p>So far as the interest of the life tenant is concerned we cannot see that the decision in Lazarus’s Est., 145 Pa. 1, altered the law in any particular. Before that decision it was repeatedly held that the rents accruing from a coal lease, whether the mine was already opened at the death of the testator or power given in the will to sell, were “income” -within the meaning of the will, and as such should be paid absolutely to the life-tenant: Eley’s App., 103 Pa. 300; Woodburn’s Est., 138 Pa. 606. In Park’s Est., 173 Pa. 190, it was held that the Pennsylvania cases show a favorable construction given bequests of income and that that class of cases in which the earning for coal and royalties in oil have been treated as income, although they consume the principal, are striking illustrations of the proposition. It is true that, in Gardner’s Est., 199 Pa. 524, it was held that after the death of the owner royalties go to the executors, and not to the heirs; but it is explained in Duffy’s Est., 209 Pa. 390, that that is the rule only where they are subject to debts existing at testator’s death and costs of administration of his estate. It was also held in the latter case, that the widow was entitled to collect the royalties herself without the intervention of the executor, there being-no debts.</p> <p>Nor can we see how McFadden’s Est., 224 Pa. 443, supports the contention of the petitioners. In that case counsel for appellants conceded that where the lease is made in the lifetime of the testator, or where the lease is made under a power given in a will, the royalties are income and payable to the life-tenant. All that the court there found was that, where a testator died seized of two tracts of land, the life tenant was not entitled to the royalties from the tract on which there was no open mine in the lifetime of the testator and concerning which he had given no power in his will to lease or sell. There is in that decision no denial of the right of the life-tenant to the principal of the royalties in the tract opened in testator’s lifetime.</p> <p>The account filed by the executrix is peculiar, in that she accounts for coal royalties which she now claims as her own, but failed to account for $500 in cash and household goods which she now admits she received. She testifies she paid all the debts of testator and divided the balance of the money and the household goods among herself and the step-children. If her testimony is not true, it could have easily been contradicted but was not. This amounted to a family settlement and after the lapse of seventeen years it is too late to question it: Walworth v. Abel, 52 Pa. 370.</p> <p>As the royalties amounting to $155.46, for which she accounted as executrix, were applied by her to the payment of preferred debts of testator, we find they were correctly applied, if needed for that purpose. The note appended by the executrix to her account, that she would thereafter account for royalties as they accrued, did not bind her to do so, for it was made in ignorance of her rights under the will. Under Duffy’s Est., 209 Pa. 390, the royalties pass directly to the life-tenant, there being-no debts, and as no trust was created in the will the intervention of a trustee or an executor is not required. There being no assets in the hands of the executrix for which she need account, the petition of the remainder-men must be refused.</p> <p>The court refused the petition. T. J. Blodgett, E. V. Blodgett and Mary Drum appealed.</p> <p>Error assigned was in refusing the petition.</p>

<p>Water companies — Dams—Eminent domain — Generation of electricity — Use of current.</p> <p>1. Under the Acts of May 16, 1889, P. L. 226, and July 2, 1895, P. L. 425, relating to the organization and powers of water companies, a water company organized under the provisions of the Act of 1889, has authority to erect a dam for the purpose of generating electric power.</p> <p>2. The Act of April 18, 1905, P. L. 152, providing that no water company thereafter incorporated should exercise the right of eminent domain as respects the appropriation of streams, rivers or waters, nor the land covered thereby, does not forbid a water company from taking for the purposes of its reservoir land situated outside the limits of a stream.</p> <p>8. In a suit in equity to restrain a water company from maintaining a dam in such a way that the waters of a stream were backed up on plaintiff’s land, it appeared that the dam was constructed for use in generating electric power, that plaintiff’s property was outside the bed of the stream, and that the water company had begun condemnation proceedings for the appropriation of such property. Held, the lower court did not err in dismissing the bill.</p> <p>4. In such case it was immaterial where the electricity so generated was to be used.</p>

<p>Appeal, No. 293, Jan. T., 1915, by defendants, from judgment of C. P. Erie Co., Sept. T., 1913, No. 217, on verdict for plaintiff, in case of May L. Walker v. T. W. Walker and Walker Grape Products Company.</p> <p>Ejectment to recover land in Erie County. Before Walling, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for the land in suit and judgment thereon. Defendants appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, rulings on evidence and instructions to the jury.</p>

<p>Appeal, No. 129, Jan. T., 1916, by James E.'Speed and John T. Speed, Executors, from Decree of O. C. Erie Co., Nov. T., 1915, No. 84, granting order restraining executors from making conveyance of real estate in Estate of Nancy J. Simmons, deceased.</p> <p>Petition for order restraining James E. Speed and John T. Speed, two of tbe three executors of the estate of Nancy J. Simmons, deceased, from making sale of real estate. Before Whittelsey, J.</p> <p>The petitioner, Susan Maud Langsmesser, is a daughter of the decedent and one of the legatees named in the will.</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered an order restraining James E. Speed and John T. Speed, executors, from selling or attempting to sell the property in question. James E. Speed and John T. Speed, executors, appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>Appeal, No. 132, Jan. T., 1916, by plaintiff, from judgment of C. P. Crawford Co., Sept. T., 1913, No. 108, refusing to take off compulsory nonsuit in case of James A. Haas v. Erie Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Prather, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing to take off the nonsuit.</p>

<p>Negligence — Automobiles—Pedestrian—Street cleaner — Collision between crossings — Nonsuit.</p> <p>1. In a negligence case a nonsuit can be entered only when it is inconceivable on any reasonable hypothesis that a mind desiring solely to reach a just and proper conclusion in accordance with the relevant governing principles of law, after viewing the evidence in the light most advantageous to the plaintiff, could determine in his favor the controlling issues involved.</p> <p>2. Vehicles have the right of way on the portion of the highway set aside for them, but at crossings, all drivers, particularly of motor vehicles, must be highly vigilant and maintain such control that on the shortest possible notice they can stop their cars so as to prevent danger to pedestrians. Between crossings drivers are not held to this same high standard of care, but nevertheless, they must be constantly on the lookout for the safety of others.</p> <p>3. Where a pedestrian deliberately selects the roadway of a city street for the purpose of walking longitudinally thereon, he must be most vigilant to look after his own safety.</p> <p>4. In an action against an automobile owner to recover damages for the death of plaintiff’s- husband, an inlet cleaner, a compulsory nonsuit was properly entered where it appeared that decedent was walking longitudinally along the street from one street intersection to another; that the street, was divided in the middle by a grass plot, the west bound traffic going on one side and the east bound on the other; that decedent was struck from behind by plaintiff’s automobile while it was going at a rate of from 12 to 15 miles per hour, and that, when the car gave a warning signal, he became confused and “zigzagged” into its path.</p>

<p>Contracts — Agreement to abide by award — Arbitrators—Street railway company — Erection of line on private property — Damages.</p> <p>Where a street railway company constructed poles and lines over the center of a large tract of land belonging to the plaintiff and thereafter entered into a written agreement empowering arbitrators to decide the amount of compensation due the property owner for the construction of such line, and the use and occupation thereof, and such agreement provided that the award should be conclusive and that within thirty days thereafter a deed conveying the right of way over the premises should be delivered to the street railway company, which would at that time pay the amount of damages awarded, in an action thereafter brought by the property owner against the railway company where it appeared that the deed had been duly tendered and that defendant had failed to pay the amount of damages awarded, an affidavit of defense was insufficient which averred, (1) that the deed was insufficient, but failed to specify in what particulars; (2) that the arbitrators considered in estimating the amount of the damages the item of future damages to the land of the plaintiff resulting from the maintenance and operation of such line, where it appeared that the line was through the center of plaintiff’s land and it would be necessary to cross thereover for the purpose of making repairs; (3) that the arbitrators erred in assuming that the defendant would have the right to enter upon and cross the land at any point that might be desired for the purpose of maintaining and operating the line.</p>

<p>Equity — Nuisance—Gasoline tank — Dwelling houses Bill for injunction — Refusal.</p> <p>A bill in equity for an injunction to restrain the defendant from erecting a gasoline tank of large capacity in a small village in the neighborhood of a lumber yard and frame dwelling houses, was properly refused where the lower court found that the defendant intended to erect, equip and maintain the tank in such a manner that the storage of gasoline therein and withdrawal therefrom would not be unduly dangerous to life or property, and would not constitute a nuisance.</p>

<p>Corporations — Public Service 'Company — Rights of companies exercising franchises prior to the time the Public Service Commission Act of July %6, 1918, P. L. 187-1-, went into effect.</p> <p>Where it did not affirmatively appear that a Public Service Corporation had not, prior to January 1, 1914, the time the Public Service Commission Act of July 26,1913, went into effect, actually commenced to exercise its franchises in the territory covered by its ■charter, it was not error to dismiss an appeal from the action of the Public Service Commission, refusing to interfere with the company’s exercise of its franchises in the said territory.</p>

<p>Criminal law — Murder—First degree — Evidence—Sufficiency — Trial — Cross-examination of defendant — Charge—Practice, O. T.</p> <p>1. On the trial of an indictment for murder it appeared that deceased, an ice cream vender, while driving his wagon along a street was met by the defendant and two companions; that a conversation took place in which deceased said to defendant “if you put your hand in my money box again I will break your head”; that deceased started to drive on and was followed by defendant who said, “me no afraid of you”; that deceased then took up an axe handle and shook it, striking defendant a slight blow in the face; that defendant stood still for about thirty seconds, and while deceased remained in the wagon drew a revolver and fired at him three times, lowering and raising his arm between each shot, the last of which was fatal. Defendant contended that the killing was in self defense and adduced evidence of his drunkenness at the time of the shooting. Held, (1) the fact that deceased scratched defendant’s face with a stick, under such circumstances, was no justification for the shooting; (2) the question of the intoxication of the defendant was for the jury, and a verdict of guilty of murder of the first degree was warranted.</p> <p>2. In such case the court did not err in overruling the defendant’s objections to questions put to him on cross-examination where one question when objected to, was not pressed and no request was made to the trial judge to direct the jury to disregard it, and where the other questions, complained of as immaterial, were answered by defendant without objection at the time.</p> <p>3. In such case the overruling of an objection to a quéstion put to the defendant on cross-examination as to the amount of money in his possession at the time of the shooting, and to which defendant replied; was not prejudicial to the defendant, and was not error.</p> <p>4. A point for charge so drawn as to omit the undisputed fact that defendant fired three shots, of which only the last was fatal,- and that he raised and lowered his arm between the shots, was properly refused, especially where the trial judge referred the jury to the general charge, which covered the subject-matter of the point; and another of defendant’s points for charge, which was affirmed, covered substantially all the matter in the point which was refused which defendant could properly have asked for.</p>

<p>Promissory notes — Judgment note — Defenses—Bankruptcy—Discharge — Subsequent promise to pay — Judgments—Rule to open— Rule to strike off — Practice, G. P.</p> <p>1. Where the question whether a promise was made by a bankrupt subsequent to his discharge to pay a debt created prior to the adjudication of bankruptcy, and whether such promise was clear, distinct, unequivocal and without qualification, depends upon the oral testimony of witnesses, the question should be submitted to a jury.</p> <p>2. A petition for a rule to show cause why a judgment entered on a promissory note by virtue of a warrant of attorney should not be opened and defendant le.t into a defense, averred that subsequent to the execution of the note defendant was adjudicated a bankrupt and was finally discharged. Plaintiff filed an answer averring that subsequent to the date of his discharge defendant made a new, distinct and unequivocal oral promise to pay the note and thereafter made payments thereon. Defendant’s replication denied both the subsequent promise to pay and that payments had been thereafter made on account, and averred that plaintiff’s right of action, if any, was on the alleged new promise. Held, the lower court erred in dismissing the petition, and the rule was reinstated and made absolute.</p> <p>3. In such case, where the judgment was regular on its face, the court did not err in refusing to strike it off.</p>

<p>Negligence — Sidewalks—Defects—Injury to pedestrians — Recovery against city — Action over against property owner — Notice— Nonsuit — Practice, G. P.</p> <p>1. In an action by a municipality against a property owner to recover damages paid by tbe former to a pedestrian for injuries sustained in consequence of a fall occasioned by tbe defective condition of a sidewalk in front of defendant’s property, wbicb was at tbe time occupied by a tenant, the burden is upon tbe plaintiff to show that tbe defendant bad either actual or constructive notice of the defect which caused the injury, and in the absence of such proof a compulsory nonsuit is properly entered.</p> <p>2. Where in such ease a city ordinance requires that the owners are to be notified by the city to repair defective sidewalks, the municipality is not in a position to complain of lack of care on the part of the property owner in failing to make such repairs where it has given no direction that they should be made.</p> <p>3. Where in such case the title to the property is in a life tenant and remaindermen, there is no duty or liability on the part of the remaindermen in respect to the repair of the sidewalk, and where the remaindermen are improperly joined as parties defendant the proper practice is for the plaintiff to offer to eliminate them from the record.</p>

<p>Appeal, No. 178, Jan. T., 1915, by plaintiff, from judgment of C. P. Lebanon Co., March T., 1914, No. 88, on verdict for plaintiff in case of John C. Orr, to the use of Gabriel H. Moyer, v. George G. Greiner.</p> <p>Assumpsit to recover damages for breach of written contract for the sale of real estate. Before Henry, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $10,460.</p> <p>The lower court subsequently entered judgment on the verdict for the sum of $5,230. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 183, Jan. T., 1915, by defendant, from judgment of C. P. Lebanon Co., March T., 19.14, No. 88, on verdict for plaintiff in case of John C. Orr, to the use of Gabriel H. Moyer, v. George G. Greiner:</p> <p>Assumpsit to recover for breach of written contract to convey real estate. Before Henry, P. J.</p> <p>The facts appear in Orr v. Greiner, 254 Pa. 308.</p> <p>Verdict for plaintiff for $10,460.</p> <p>The lower court subsequently entered judgment on the verdict for the sum of $5,230. Defendant appealed.</p> <p>Error assigned, among others, was in refusing to direct a verdict for the defendant.</p>

<p>Appeal, No. 81, Jan. T., 1916, by defendant, from judgment of C. P. Elk Co., April T., 1915, No. 16, on verdict for plaintiffs in case of Charles L. Gerg and Lizzie Gerg v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Hall, J.</p> <p>On the trial the court charged the jury, in part, as follows :</p> <p>“A boy eleven years of age is not held to the same measure of care or responsibility that an adult man would be. The rule of law is that the measure of a child’s responsibility is his capacity to see and appreciate danger. The rule is that in the absence, or lack of clear evidence he will only be held to such a measure of discretion as is usual in those of his age and experience.” (15); and</p> <p>“But with a child of eleven years of age there is a presumption that he is not capable of seeing or appreciating danger. But this presumption is not irrebuttable, but • the burden of rebutting it lies upon the defendant. In considering this branch of the case you will take into consideration the child’s age, the evidence as to his intelligence, and decide.” (16)</p> <p>Further facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiffs for $3,513.25 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were various rulings on evidence and the charge to the jury (15 and 16).</p>

<p>Lease — Oil and gas lease — Failure to pay rent on time — Forfeiture — Rent—Repossession by lessor — Bill in equity — Injunction.</p> <p>1. An oil and gas lease is not a mere license, but creates in the lessee a corporeal interest in the land.</p> <p>2. The provision in an oil and gas lease rendering it void for failure to pay rent as stipulated is for the protection of the lessor, and after breach of such provision the tenancy continues until the lessor declares the forfeiture. If the rent in arrear be paid or tendered before the lessor declares the forfeiture, the breach is healed and the tenancy saved.</p> <p>3. At the hearing of a bill in equity to restrain defendants as lessors from repossessing themselves of premises embraced in an oil and gas lease, by reason of an alleged forfeiture of the lease, it appeared that the lease provided “if the second party (lessee) fails to pay the first party $300 annually on January 28th of each year, then the lease becomes absolutely null and void.” After paying the rent on time for thirteen successive years, on the fourteenth year of the tenancy the lessee mailed a check for the rent to the lessor so that it reached the office of the lessor on January 29th. On January 30th, the lessor returned the check and declared the lease forfeited. The lower court found that the failure to pay the rent on time was unintentional and that the enforcement of the forfeiture would be unconscionable. Held, the enforcement- of forfeiture was properly restrained.</p>

<p>Appeal, No. 93, Jan. T., 1915, by Timken-Detroit Axle Company, from decree of O. C. Berks Co., Sept. T., 1912, Nos. 66 and 67, and March T., 1914, No. 36, refusing to order distribution to claimant in Estate of Joseph Middleby, deceased.</p> <p>Exceptions to adjudication. Before Bushong; P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court directed that after distribution to Pennsylvania creditors the remaining assets be accounted for by the ancillary executors to the executors in Massachusetts, where original letters testamentary were issued. Timken-Detroit Axle Company appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 38, Jan. T., 1916, by defendant from judgment of C. P. Berks Co., May T., 1915, No. 63, on verdict for plaintiff, in case of The Beading Trust Company, John D. Eisenbrown, and E. Carroll Schaeffer, Executors of E. W. Alexander, deceased, v. John S. Thompson.</p> <p>Replevin for the recovery of certain coupon bonds. Before Wagner, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for the plaintiff for the bonds replevied, and $10,735.83 damages, and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motions for a new trial and for judgment n. o. v.</p>

<p>Constitutional law — Statutes—Insufficient title — Constitution of Pennsylvania, Article III, Section 8 — Imprisonment at hard labor —Support of prisoner’s dependents — Liability of county — Act of June 12,1918, P. L. 502, Sec. 2.</p> <p>1. The title to an act of assembly need not be a complete index to its contents, embodying all the distinct provisions of the bill, but if it does not fairly give notice of the contemplated legislation, so as reasonably to lead to inquiry as to what is contained in the body of the bill, Section 3, of Article III, of the Constitution is violated and the legislation in disregard of it must fall.</p> <p>2. The title to the Act of June 12, 1913, P. L. 502, relating to the payment of certain sums to the families of persons imprisoned at hard labor does not disclose the legislative purpose to impose upon counties liability for payment to the families of such persons. So much of the act as provides that where the funds of the institution where such prisoners are confined are insufficient for such payments, they shall be charged to and paid by the county from which the defendant was committed, violates Article III, Section 3, of the Constitution of Pennsylvania and is void.</p>

<p>Appeal, No. 258, Jan. T., 1915, by defendant, from judgment of C. P. Northumberland Co., Sept. T., 1913, No. 588, on verdict for plaintiff in case of Joseph Robel, by his next friend, Nicholas Robel, v. The Philadelphia & Reading Coal & Iron Company.</p> <p>Trespass to recover damages for personal injuries. Before Moser, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $4,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motions for a new trial and judgment n. o. v.</p>

<p>Appeals, Nos. 351 and 352, Jan. T., 1916, by Thomas Sloan and Andrew Sloan, from Decree of O. C. Fayette Co., March T., 1914, No. 18, granting review of account of the executors of William Sloan, deceased.</p> <p>Petition for review of account of executors of William Sloan, deceased. Before Work, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court granted the relief prayed for by striking out the item of $4,999.33 from the executors’ account. Thomas Sloan and Andrew Sloan appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>Appeal, No. 359, Jan. T., 1915, by plaintiffs, from decree of C. P. Northumberland Co., No. 395, in equity, dismissing bill in equity for injunction in case of the Philadelphia and Reading Coal and Iron Company, The Mineral Railroad and Mining Company and the Lehigh Valley Coal Company v. P. Joseph Schmidt, Fred R. Dornsife and George E. Hancock, Commissioners of Northumberland County; Frank Bower, Joseph Jones, Nicholas Bohr, William Burget, Evan Jeremiah, John Breen, Henry Boyd, William Nayman, Frank Gabriel, Joseph Chichoski, James Purcell, Oliver Fessler, Joseph Dunn, Commissioners of the Township of Coal; John A. Adamiak, Edward Brennan, Adam L. Brosky, William Mangle, M. J. McBride, Patrick T. Ryan, Stanley F. Witt, School Directors of the Township of Coal; John M. Muir, Michael M. Meehan, Thomas Filer, Overseers of the Poor of the Poor District of the Township of Coal; William Dane, Treasurer of the Township of Coal, and Thomas Howells, Treasurer of the Township of Coal.</p> <p>Bill in equity to enjoin collection of taxes alleged to have been improperly levietl. Before Moser, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 372, Jan. T., 1915, by defendant, from judgment of C. P. Fayette Co., June T., 1915, No. 516, entered for want of a sufficient affidavit of defense in case of J. I. Feather v. James M. Hustead, alias J. M. Hustead and John E. Hess.</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Van Swearingen, P. J.</p> <p>The facts appear by the opinion of the Supreme Court,</p> <p>The lower court made absolute plaintiff’s rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned, among others, was in making absolute plaintiff’s rule for judgment.</p>

<p>Appeal, No. 85, Jan. T., 1916, by E. M. Lilley, from judgment of C. P. Fayette Co., June T., 1914, No. 472, on directed verdict for plaintiff in case of E. D. Fulton v. Mary A. Miller, Executrix, and W. A. Edmiston, Executor of the Estate of L. S. Miller, deceased, and E. M. Lilley.</p> <p>Assumpsit on promissory note. Before Van Swearingen, P. J.:</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $5,789.75 by direction of the court and judgment thereon. ■ E. M. Lilley appealed.</p> <p>Error assigned, among others, was in affirming plaintiff’s point for binding instructions.</p>

<p>Appeal, No. 158, Jan. T., 1916, by Minnie C. Long, from decree of O. Cl Fayette Co., . Dec. T., 1912, No. 38, opening and correcting an adjudication in Estate of Samuel N. Long, deceased.</p> <p>Petition for the opening and correction of an adjudication of an executor’s account. Before Work, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The Orphans’ Court opened the adjudication, ascertained the value of a child’s share, found that Mrs. Catherine Long Morrow had received no more than a child’s share of her father’s estate, and directed that such order be added to the decree of distribution before entered. Minnie C. Long appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>Negligence — Master and servant — Proof of negligence — Defective ladder- — Fall—Nonsuit.</p> <p>1. Where an employee institutes proceedings for damages based upon negligence upon the part of his employer it is not sufficient to entitle him to recover by merely proving the fact of an accident and consequent injury. There must be affirmative proof of a negligent act of either omission or commission on the part of -the employer which was the cause of the accident.</p> <p>2. In an action by.an employee against an employer where the alleged negligence is due to defects in tools, machinery or appliances used in the course of the employment, plaintiff does not meet the burden of proof cast upon him of establishing negligence upon the part of his employer by merely showing an existing imperfection at the moment of the accident; it must be shown further that the master was aware of the flaw or w'ould have known of it if reasonable and proper inspection had been made.</p> <p>3. Where a defect arises in the course of the use of tools or appliances the master is not responsible for such defect in the absence of proof of sufficient time and opportunity to discover the flaw.</p> <p>4. In an action by an employee against a building contractor to recover damages for injuries sustained as a result of a fall from a ladder induced by a defective rung upon which plaintiff was standing and which gave way, a compulsory nonsuit was properly entered where there was no evidence to show when the rung which caused plaintiffs fall became loose, and no other evidence, either actual or constructive, of notice to the defendant of any defect either in the material used or in its construction, and particularly where it appeared that others of defendant’s employees had used the ladder with safety shortly before the accident.</p>

<p>Trusts and trustees — Testamentary trustee — Power of sale after death of life tenant — Bale before death of life tenant — Life tenant’s consent — Purchase by life tenant — Validity of sale — Estoppel.</p> <p>1. Powers must be strictly pursued and a power to be exercised upon a given event cannot be properly executed before the happening of that event; but where the power is complete, but its exercise is postponed for the benefit of a particular person, the consent of that person will be equivalent to the happening of the stipulated contingency. Consent in such case need not be shown by deed, but can be proven by the words or actions of the parties implying it.</p> <p>2. A testamentary power to sell real estate after the death of a life tenant can be exercised by a trustee before that event, if done with the former’s consent and for the purpose of ultimate-distribution of the testator’s estate.</p> <p>3. When in such case the life tenant himself purchases the property in question from the trustee, such sale will not be declared invalid in an action of assumpsit instituted more than twenty-three years thereafter by the administrator c. t. a. of the then deceased cestui que trust, to recover purchase-money from one who subsequently bought the premises at a public vendue duly ordered in a judicial proceeding, where such personal representative was duly authorized and directed to execute a deed and collect the fund, and there was no attack upon the sufficiency of the consideration paid by the life tenant at the time of the sale to him, and no allegation or proof of a fraudulent purpose to defeat or destroy the trust; and where it further appeared that immediately after acquirirfg the property the life tenant made extensive improvements; and that the purchase-money paid by him had been distributed after his death to those ultimately entitled.</p>

<p>Practice, O. C. — Issue devisavit vel non — Precept to O. P. — Certification bach to O. C. — Act of March 15,1S32,P. L. 185.</p> <p>1. Under the Act of March 15, 1832, P. L. 135, whenever a caveat is entered against the probate of a testamentary writing the precept to the Common Pleas Court must be accompanied by the original writing offered for probate and the Common Pleas must certify the result of the trial had before it to the Orphans’ Court.</p> <p>2. When a case is appealed from the register of wills to the Orphans’ Court under Section 41 of the Act of March 15, 1832, P. L. 135, an issue devisavit vel non is of right where there is a substantial dispute upon a material question of fact, and when it is sent to the Common Pleas the matter belongs so exclusively to the latter tribunal that for purposes of review a writ of error or appeal goes directly to it from the Supreme Court, and after judgment on the issue the question of the sufficiency of the evidence to justify the finding may properly be brought before the Supreme Court.</p> <p>3. Where in such ease no appeal is taken from the judgment of the Common Pleas, or if, on appeal, the evidence has been held sufficient, the facts found by the jury must be accepted by the Orphans’ Court as conclusively established.</p> <p>4. The verdict of the jury on an issue devisavit vel non, before being certified back to the Orphans’ Court, should have the approval of the court under whose supervision it was taken as -to its regularity and this approval is given by entering judgment.</p> <p>5. A certified copy of the record is the proper form of certifying to the Orphans’ Court the facts established by 'the trial of an issue devisavit vel non, and after such certificate has been returned to the Orphans’ Court the -Common Pleas has power' to grant a new trial if the record has never finally passed from the custody of the Common Pleas.</p> <p>6. When a case on appeal from the register is sent by precept from the Orphans’ Court to the Common Pleas, and the judgment of the latter favors the validity of the testamentary writing, correct practice requires that, after the certificate of the result of the-tripl in. the Common Pleas is sent to the Orphans’ Court, the latter shall enter a final decree directing probate.</p> <p>7. On appeal to the Orphans’ Court from a decree admitting a will to probate, an issue devisavit vel non was granted; a verdict was rendered in the Common Pleas Court against the validity of the will and judgment entered thereon. A certificate showing such result was then returned to the Orphans’ Court accompanied by the original will, which had been sent with the precept to the Common Pleas, and the Orphans’ Court then entered a decree formally annulling the probate. When the account of the trustee of a trust created by the will, was called for audit it appeared that the judgment had been opened, a new' trial had and a verdict rendered sustaining the will. It further appeared (1) that no judgment had been entered on the second verdict, (2) that no proper return thereof to the Orphans’ Court had been made, (3) that no order setting aside the decree annulling the will had been entered, and (4) that there was no decree directing the probate of the will. The Orphans’ Court ordered the trustee to perfect the record in the Orphans’ Court and thereafter the trustee offered a certified copy of the docket entries in the Common Pleas showing that judgment had been entered on the second verdict sustaining the will. The record did not show an order .of the Orphans’ Court setting aside its decree annulling the will or directing a probate, or that the original will returned by the Common Pleas to the Orphans’ Court had been remitted by the latter to the former for the purpose of the second trial, or that any effort to cure such defect had been made. The lower court refused to act upon the account. Held, no error.</p> <p>8. Not decided whether the-defects in the above record may be cured on due application to the proper courts with notice to all parties concerned.</p>

<p>Appeal, No. 155, Jan. T., 1916, by plaintiff, from decree of C. P. No. 5, Philadelphia Co., Dec. T., 1915, No. 2883, in equity, dismissing bill in equity for injunction in case of the Contributors to the Pennsylvania Hospital v. City of Philadelphia, Thomas B. Smith, Mayor; George E. Datesman, Director of the Department of Public Works, and William H. Connell, Chief of the Bureau of Highways of the said city.</p> <p>Bill in equity for injunction to restrain defendant from opening 44th street through the grounds of the Pennsylvania Hospital in the City of Philadelphia.</p> <p>The Act of April 17,1854, P. L. 385, entitled “An act to prevent streets being laid out through, the grounds of the Pennsylvania Hospital without the consent of the managers,” provided as follows:</p> <p>“Section 1. Be it enacted by the Senate and House of Representatives of the Commonwealth of Pennsylvania in General Assembly met, and it is hereby enacted by the authority of the same, That no streets, alleys, roads or lanes, shall ever be opened through the property belonging to the corporation of the contributors to the Pennsylvania Hospital, situate in the twenty-fourth ward of the City of Philadelphia, without the consent of the said corporation, so long as the said property is used for the purposes of their insane department, any law to the contrary notwithstanding: Provided, That said corporation shall contribute one-half the ground, for an avenue, on their east, one on their west line, each one hundred feet in width, without charge to the city and County of Philadelphia.” Thereafter, in 1913, the City of Philadelphia passed an ordinance opening 44th street from Market street to Haverford avenue and on January 27, 1914, plaintiff was informed that the avenue would be opened through its property for public use. Such ordinance was passed under authority of the Acts of June 8, 1881, P. L. 68, and May 23, 1874, P. L. 230, giving the municipal authorities the right to open streets, “Any private or special statute to the contrary notwithstanding.”</p> <p>Plaintiff’s bill in equity averred that such acts did not empower the State to take away the right and privilege granted to the plaintiff by the Act of 1854, and that the ordinance is illegal under the Constitution of Pennsylvania and the Constitution of the United States forbidding laws which impair the obligation of contracts.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>The lower court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Decedent’s estates — Executors and administrators — Fee—Claim for personal services.</p> <p>1. A claim of an executor for services rendered decedent in her lifetime in the management of her property was properly disallowed where there was no evidence as to the nature of the services or their value.</p> <p>2. In such case there was no error in reducing the executor’s commission from five to three per cent, where it appeared that the estate was valued at $37,000, and that assets amounting, to $25,312 were transferred to legatees in specie without being converted. •</p>

<p>Appeal, No. 180, Jan. T., 1915, by defendant, from judgment of C. P. Northampton Co., April T., 1912, No. 77, on verdict for plaintiff in case of Emma V. Diehl, for and in her own behalf as widow, and in behalf of Minnie, Mary, Austin and Howard Diehl, minor children of John J. Diehl, v. Lehigh Valley Railroad Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Scott, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $4,075 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Promissory notes — Liability of endorser — Notice of dishonor— Protest — Mail notice — Act of May 16,1901, P. L. 194 — Defenses— Extension of time — Discharge—Trials—Practice, G. P. — After-discovered evidence — New trials — Act of May 14,1874, P• L. 157.</p> <p>1. Under Section 105 of the Negotiable Instruments Act of May 16,1901, P. L. 194, providing that “where notice of dishonor is duly-addressed and deposited in the post office, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails,” due notice is deemed to have been given when the notice is properly addressed and deposited in the mails whether it has been received or not.</p> <p>2. The certificate of a notary public, made admissible in evidence by the Act of December'14, 1854, P. L. (1855), 724, for the purpose of showing his “official act, protests and attestations,” in relation to the dishonor of bills and notes and notice thereof to endorsers, is prima facie evidence of the allegations set forth in it, and if there is nothing in contradiction it is conclusive of what it contains.</p> <p>3. Where in an action against the endorser of a promissory note a notary public produced his certificate at the trial showing demand and refusal, and notice thereof to defendant, and in addition testified that he had given notice to the defendant by letter duly stamped and addressed and mailed at a certain time and place, the court properly refused defendant’s offer to show that he personally had not received the notice.</p> <p>4. In such case there was no merit in defendant’s contention that the court erred in charging, in effect, that the notary’s statements must he taken as a verity, where there was no real attempt to impeach either the notary’s certificate or oral testimony, especially where the court stated that the credibility of witnesses was for the jury and no complaint was made by defendant’s counsel at the close of the charge.</p> <p>5. In such case the court below did not err in refusing a new trial, moved for on the ground of after-discovered evidence, where defendant’s deposition was that he had recently found in his desk a notice of protest directed to another endorser; that his mail was always opened by a clerk, and that he had no recollection of having seen the notice before, but where the' inference that defendant had received a notice meant for another endorser was not certain, and where the trial judge was of the opinion that the alleged evidence could have been discovered by defendant with ordinary care and diligence before the trial.</p> <p>■ 6. A party may not sit silent and take chances on the verdict, and, if adverse, afterwards complain of language employed in the charge which could have been immediately corrected if attention had been, directed to it at the time. , , . .</p> <p>7. The determination of a motion for a new trial is within the sound discretion of the trial court, and, in the absence of clear abuse, will not be disturbed.</p> <p>8. A notification to proceed against a principal debtor must be accompanied by a positive explicit declaration that unless the request be complied with the surety 'will be. considered discharged.</p> <p>9. In an action against an endorser of a promissory- note where the defense was a discharge by reason of the plaintiff’s granting to another endorser, who defendant contended was primárily liable, an extension of time in consideration of a confession of judgment by the other endorser for the amount of the note, a verdict and judgment for the plaintiff will be sustained where plaintiff denied the existence of such contract to extend the time, and where the only evidence supporting defendant’s contention was the testimony of a witness who, immediately after stating that such agreement existed, expressed his uncertainty on the point.</p> <p>10. In such case defendant’s offer to show that he had informed the plaintiff of assets belonging to the other endorser and demanded that plaintiff take them by attachment execution on the judgment against the latter was properly refused where there was no offer to prove that there accompanied the demand an explicit declaration that defendant would otherwise hold himself discharged, and where the notice was not in writing as required by the Act of May 14, 1874, P. L. 157, defining the liability of sureties upon written instruments for the payment of money,</p>

<p>Corporations — Purchase of bonds of another corporation — Validity — Constitution of Pennsylvania, Article XVI, Section 7 — Act of July 2, 1901, P. L. 60S — Equity—Fraud—Cancellation—Bill in equity.</p> <p>1. Neither an individual nor a corporation can retain the profits of a transaction, or anything of value received from the other party, and set up ultra vires as a defense to the enforcement of the contract. He who seeks equity must do equity.</p> <p>2. ' Where a corporation organized for profit purchases the shares of capital stock, bonds, securities, or evidence of indebtedness, of any other corporation of this or another state, under authority of the Act of July 2,1901, P. L. 603, and gives its own notes therefor, subsequently issuing its own bonds to take up such notes, Such transaction amounts merely to a change in the form of its obligations to pay and is not a fictitious increase of its indebtedness, in violation of Article XYI, Section 7, of the Constitution of Pennsylvania.</p> <p>3. A bill in equity by minority stockholders of a Pennsylvania corporation to have certain bonds issued by said corporation to the defendants cancelled on the ground that the defendants were not holders in good faith, was properly dismissed where it appeared that the defendants, who were originally the owners of a majority of the stock of such corporation had sold all'their shares in the same to a New Jersey coiporation, receiving therefor in part payment certain mortgage bonds of the latter; that the Pennsylvania company subsequently bought such bonds from the defendants, giving its own notes therefor, and then surrendered the bonds to the New Jersey company for preferred stock of a New York company. A minority of the stockholders of the Pennsylvania company then filed a bill in equity against the present defendants and others, in which fraud was averred in the issuance of the notes to the defendants, and said suit was- settled by the taking up of the notes and the issuing of bonds of the Pennsylvania company to the defendants. Subsequently the Pennsylvania company filed the present bill in equity against the defendants for the cancellation of said bonds alleging that they were fraudulently issued. On the hearing it appeared that after the sale of their stock to the Pennsylvania corporation defendants had no further interest in that company, and further that though the purpose of the present bill was to repudiate the notes given by the Pennsylvania corporation to the defendants, that company had not returned or offered to return to the defendants either the notes or the bonds of the New Jersey corporation purchased from them. Held, the lower court did not err in dismissing the bill.</p>

<p>Appeal, No. 365, Jan. T., 1915, by plaintiffs, from judgment of C. P. York Co., August T., 1914, No. 124, refusing to take off compulsory non-suit in case of John Bruggeman and Mary Ellen Bruggeman v. City of York.</p> <p>Trespass to recover damages for death of plaintiff’s son. Before Ross, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiffs appealed.</p> <p>Error assigned, among others, was in refusing to take off compulsory nonsuit.</p>

<p>Appeal, No. 377, Jan. T., 1915, by plaintiff, from judgment of Superior Court, March Term, 1915, No. 6, reversing judgment of plaintiff, C. P. York County, Jan. T., 1912, No. 125, in case of the City of York, to use of A. B. Kraft, v. Charles E. Miller.</p> <p>Appeal from Superior Court.</p> <p>The facts appear by the opinion of the Supreme Court, and in York City, to use, v. Miller, 60 Pa. Superior Ct. 407.</p> <p>The Superior Court reversed the judgment of the lower court and granted a venire facias de novo. Plaintiff appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 5, May Term, 1916, by plaintiff, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1913, No. 94, for defendant on appeal from the settlement of a tax by the Auditor General and the State Treasurer, in case of Commonwealth of Pennsylvania v. Dupont Land Company.</p> <p>Appeal from tax settlement.</p> <p>Kunkel, P. J., filed the following opinion:</p> <p>The Commonwealth has settled this account against the defendant company for the loans tax for the year 1911. The case has been submitted to us for trial without a jury pursuant to the Act of April 22, 1874, P. L. 109. We find the facts to be as set forth in the defendant’s requests for findings of fact filed herewith. Briefly stated they are as follows:</p> <p>FACTS.</p> <p>The defendant is a corporation of this State, incorporated for the purpose of owning, holding and operating real estate. Its entire issue of capital stock, excepting qualifying shares of officers and directors is owned and held by one Frank McCann, who conveyed to the defendant company certain several pieces of real estate, which were covered by separate mortgages given by Mr. McCann with accompanying bonds. In the deeds of conveyance it was stipulated that the defendant company “assumes and agrees to pay” the principal and interest of the mortgage indebtedness. No certificates or evidences of indebtedness were issued to the mortgagees nor any contract made with them for the payment of the mortgages or the interest thereon. As far as known the mortgagees were ignorant of the conveyance of the properties to the defendant company, at least until the year 1911, when the interest on the mortgages for that year was paid to them by the defendant, but the State tax was not deducted therefrom. The mortgages having been reported in the defendant’s report of loans to the accounting department of the Commonwealth, a settlement was made against it on October 25, 1912, in which it was charged with the loans tax for 1911 on $341,966, being the indebtedness represented by the mortgages and accompanying bonds held by individuals and trustees in Pennsylvania, the tax thereon amounting to $1,367.18; and after deducting the treasurer’s commission and adding a penalty of 10 per cent, for failure to make report in due time, there was claimed by the Commonwealth the sum of $1,445.60. From this settlement the company duly appealed.</p> <p>DISCUSSION.</p> <p>The tax which is here sought to be recovered is the tax on the mortgage indebtedness created by the defendant company’s grantor. The tax on such indebtedness is assessable and collectible through the local authorities, while the tax on corporate indebtedness is collectible by the corporation. By Section 4 of the Act of June 30, 1885, P. L. 193, the corporation is required to assess the tax and collect it out of the interest which it pays on “any scrip, bond or certificate of indebtedness issued by said corporation,” and in another part of the section, upon the payment of the tax, “the bonds, certificates or other evidences of indebtedness issued by it” (by the corporation) are exempt from all other taxation. In the proviso of Section 6 of the act, where the taxable is directed not to include in the return to the local authorities corporate indebtedness, the language is, “obligations of public or private corporations.” Proviso 2) Section 2, Act of June 1,1889, P. L. 420. So it is clear that the tax which the corporation is required to assess and collect is that which is due on the certificates or evidences of its own indebtedness. This tax is imposed by the Act of June 1, 1889, P. L. 420, and the Act of June 8, 1891, P. L. 229, and the subjects of the tax are described in the following words, “all loans issued by......corporations, associations, companies or limited partnerships......including car trust securities and loans secured by bonds or any other form of certificate or evidence of indebtedness,” that is, the loans or indebtedness which the corporation has created and for which it has issued its obligations. The mortgages and bonds upon which the tax is claimed in the settlement before us were not issued by the defendant company and are not its ob- • ligations. They are therefore not of the class described in Section 4 of the Act of 1885, the tax upon which it is the duty of the corporation to assess and collect.</p> <p>But the Commonwealth contends that the defendant company assumed the mortgage indebtedness by the stipulation contained in the deeds of conveyance and thus'made it its own; hence it was in duty bound to collect the tax by deducting it from the interest Avhich it paid on the indebtedness. We do not think the stipulation had that effect. It is Avell settled that such a stipulation is a covenant to indemnify or to protect the grantor against loss in the event the mortgage indebtedness is not paid out of the land or otherwise. It does not enure to the benefit of the mortgagees or the holders of the indebtedness. They cannot enforce it against the grantee. They are no parties to it. They have no contractual relation at all with the grantee. The grantee’s liability is to the grantor alone: Act of June 12, 1878, P. L. 205; McAbee v. Cribbs, 194 Pa. 94; May’s Est., 218 Pa. 64; Tritten’s Est., 238 Pa. 555; Smith v. Danielson, 45 Pa. Superior Ct. 125. The stipulation cannot therefore be construed as an assumption of the indebtedness, so far as the holders of the indebtedness are concerned, nor be held to have established between the grantee and them the relation of debtor and creditor. The indebtedness notwithstanding still remained the indebtedness of the grantor or mortgagor, and his personal liability to the holders thereof as well as the liability of the land for the mortgage debt continued. We are not. convinced that the effect of the stipulation was to change the agency through which the tax on the mortgage debt was theretofore assessed and collected, and to transfer that duty from the local authorities to the defendant company.</p> <p>To. the suggestion that the stipulation is itself a certificate of indebtedness issued by the company, upon which the tax is imposed, and that the tax is therefore collectible out of the interest paid thereunder, what we have said applies Avith equal force. The defendant com-' pany’s obligation under the stipulation does not constitute a debt or loan within the common acceptation of the term.</p> <p>The fact that the defendant paid the interest on the mortgage indebtedness is not of itself enough to make it liable for the collection of the tax. The duty to collect does not arise out of the payment of interest, but from express statute. If it be not found there, it does not exist. What we have said is in harmony with Com. v. J. Langdon & Co., Inc., 1 Dauphin County Rep. 123; Com. v. William M. Lloyd Co., 15 Dauphin County Rep. 149; Com. v. Hillside Coal & Iron Co., 1 Pa. Dist. Rep. 742; Com. v. Union Traction Co., 192 Pa. 507. The present case, like those referred to, does not fall within the letter nor do we think within the intention of the Act of 1885.</p> <p>CONCLUSIONS.</p> <p>Wherefore we conclude:</p> <p>1. That the obligation contained in the deeds to the defendant company is not an indebtedness or loan issued by the corporation and intended to be embraced by the Act of June 30, 1885.</p> <p>2. That the mortgage indebtedness covering the lands</p> <p>conveyed is taxable in the hands of the holders thereof, and the tax thereon is collectible through the local authorities. ■ •</p> <p>3. That it did not become the duty of the treasurer of the defendant company, because of the obligation contained in the deeds of conveyance, to deduct the tax from the interest which it paid on the indebtedness.</p> <p>The court entered judgment for defendant. Plaintiff appealed.</p> <p>' Errors assigned were in dismissing exceptions to various findings of the trial judge and the judgment of the court. ■ ’ '</p>

<p>Appeal, No. 9, May T., 1916, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1912, No. 297, for plaintiff, on appeal from the settlement of a tax by the Auditor General, and the State Treasurer, in case of Commonwealth of Pennsylvania v. Pottsville Water Company.</p> <p>Appeal from tax settlement.</p> <p>Kunkel, P. J., filed the following opinion :</p> <p>On August 23, 1912,- the accounting officers of the Commonwealth settled an account against the defendant company for tax on its net annual income for the year 1911, in which it was charged with a tax of $11,-379.75 on an excess of net income of $45,519. On October 4, 1912, the defendant company paid on account of the tax $4,022.28, leaving a balance unpaid of $7,-357.47.</p> <p>By the Act of February 18, 1854, P. L. 79, the capital stock of the defendant was exempted from all taxation, but it was provided in Section 11 of that act: “When the net annual income from the works of said company, after having repaid the Boroughs of Pottsville, Port Carbon and St. Clair, whatever sums they may have respectively advanced to the said company to pay dividends with, as aforesaid, shall exceed six per cent, on the capital paid in, the said excess shall be taxable for state purposes only, at the same rates as are now imposed on the dividends of banks for said purposes, and the remainder of such excess may either be divided qmong the stockholders, or be' allowed to accumulate as a reserved or contingent fund for extraordinary repairs, or future enlargement of its works, as the said president and managers may deem best.” The defendant’s net income for the year in question was $57,519. By the Act of 1854 it was authorized to receive subscriptions for eight thousand shares of stock at twenty-five dollars per share, and its paid in capital stock under that act was $200,000. It repaid the boroughs for all the moneys advanced by them to pay dividends. After deducting a dividend of six per cent, on the $200,000 capital stock from the net income the balance was treated by the accounting officers as the basis for the computation of the tax. The defendant company appealed from the settlement, contending that the dividend of six per cent, to be deducted from the net income of $57,519 should be calculated on a capital stock of $400,000, its capital stock having been increased on October 19,1910, to that amount. The appeal has been submitted to us to be tried without a jury under an agreement as to the facts filed in the case.</p> <p>The question presented is, whether or not the dividend of six per cent., which under the eleventh section of the Act of 1854 is to be deducted from the net annual income before any part of the income becomes taxable, is to be computed on the capital stock of $200,000 or the increased capital stock of $400,000. The controversy turns upon the meaning to be given to the words “capital paid in,” as used in the section. The defendant contends that it should be interpreted to mean the capital paid in, not only under the Act of 1854 but under any subsequent legislative authority. The meaning of the words is to be ascertained by reference to the other sections of the act in which they are used. By the act the Boroughs of Pottsville, ■ Port Carbon and St. Clair, to whose inhabitants the defendant company contemplated the supply of water, were empowered to guarantee the payment of semi-annual dividends of three per cent, upon the amount of capital paid in, and to impose a tax upon the taxable property in the respective boroughs to meet any deficiency there might be in the net income of the company to pay the semi-annual dividends. In Section 9, where provision is made to meet such a deficiency, it is declared: “If it shall appear......that there will not be sufficient net income from the works of the said company to pay semi-annual dividends of three per cent, on the amount of capital paid in on the subscriptions of stock hereby authorized.” Here the capital paid in is expressly stated to be the capital paid in on the subscriptions of stock hereby authorized, that is, authorized by the act. And by the proviso in the same section, where provision is made for payment to the boroughs of the excess of income over the dividend of six per cent, on the capital stock paid in, it is provided: “That should the net annual income of the said company at any time exceed the amount of six per cent, on the capital stock paid in, such excess shall be paid over to the said town council, until the whole amount advanced by the said council as aforesaid to the said company shall have been repaid.” It is clear that the “capital stock paid in,” as used in this proviso, means the capital stock paid in under the subscriptions authorized by the act. If it were otherwise, the defendant company would have had it in its power to increase the capital stock so that at no time would there be any excess of income over six per cent, on its capital stock. And in the second proviso, the precaution is taken to prohibit the company to expend any money for the enlargement of its works or for any other purpose, except for keeping them in repair or for superintendence, without the consent of the borough, thus putting a limitation on any increase of the capital stock whereby the net annual income might be prevented from ever equalling the six per cent, on the capital paid in. We are satisfied that the words “capital paid in” used in Section 11 mean just what they mean in the other sections of the act, capital paid in on the subscriptions authorized by the act. This interpretation is in accord with the reasonable presumption that the Act of 1854, in the absence of anything therein to show otherwise, was enacted with reference to the then existing conditions. The parts of the act to which we have referred plainly indicate the legislative intention that the term “capital paid in” was not to cover future capital, but was to be restricted to the capital stock paid in under the subscriptions which that act authorized.</p> <p>The court entered judgment for plaintiff for $7,357.47. Defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of the trial judge, and the judgment of the court.</p>

<p>Decedents’ estates — Executors and administrators — Trustees— Deposit of security for payment of decedent’s dehis — Recovery of security.</p> <p>An attorney died possessed of certain trust property of which a client, who had predeceased him, was trustee. The executors of the attorney deposited with a bank certain bonds in pursuance of an agreement reciting the desire of the executor to make restitution and setting forth that such bonds were “to be held for said (substituted) trustee as security for the forthcoming of the principal fund upon settlement of the estate.”......Thereafter the amount due from the attorney’s estate to the trust estate was ascertained by the court and paid in full. Subsequently the executor petitioned the Orphans’ Court for a return of the bonds; but it was contended by persons interested in the trust estate that the bonds had become part thereof by such deposit and that the bank held such bonds as trustee ex maleficio. Held, the court properly awarded the bonds to the executors of the attorney.</p>

<p>Wills — Construction — Life estates — Vested and contingent remainders.</p> <p>1. It is a general rule in the construction of wills that an interest is to be construed contingent only when it is impossible to construe it as vested.</p> <p>2. Where a testator creates a particular estate, and then goes on to dispose of the ulterior interests, expressly in an event which shall determine the prior estate, the words descriptive of such an event occurring in the latter devise will he construed as referring merely to the period of the determination of the possession or enjoyment under the prior gift, and not as designed to postpone the vesting.</p> <p>3. The law seeks always to avert a construction of a will which would result in a whole or partial intestacy.</p> <p>4. A testator bequeathed a share of his estate in trust for the use of a daughter for her life “and from and immediately after the decease of my said daughter......then in trust to grant and convey, assign, transfer and set over the principal......unto all and every child and children of my said daughter......and the legal issue of any of them deceased leaving issue......in equal parts and shares.” The daughter had a child living at the time of the testator’s death, who subsequently died in his minority during the lifetime of the daughter, unmarried, and without issue. Held, that the child of such daughter took a vested interest in his share of the residuary estate, to which his mother, the life tenant, succeeded, under the intestate laws.</p> <p>Rosengarten v. Ashton, 228 Pa. 389, distinguished.</p>

<p>Appeal, No. 36, Jan. T., 1916, by The National Surety Company, from judgment of C. P. Susquehanna Co., Jan. T., 1915, No. 151, for plaintiff, for want of a sufficient affidavit of defense, in case of Commonwealth of Pennsylvania, to the use of E. E. W. Searle, Trustee of the Estate of Harrison H. Dougherty, late of the Township of Franklin, deceased, v. Miller S. Allen, former Trustee of the Estate of Harrison H. Dougherty, and The National Surety Company of the City of New York and State of New York.</p> <p>Assumpsit on a bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Little, P. J.</p> <p>The opinion of. the Supreme Court states the facts.</p> <p>The court made the rule absolute and entered judgment for plaintiff. The National Surety Company appealed.</p> <p>Error assigned, among others,, was the order of the court.</p>

<p>Practice, Supreme Court — Appeals•—Insufficient findings of fact —Decrees—Vacation—Record remitted.</p> <p>A decree of distribution will be vacated and the record be remitted for further proceedings, with leave to take further testimony with respect to the questions of fact,, when such questions have not been determined in the court below and are essential to a proper distribution should the lower court’s view of the law be held incorrect.</p>

<p>Wills — Life estates — Rule in Shelley’s Case — “Son”—Word of purchase — Residuary clauses — Construction—Intention—Act of June 4 1879, P. L. 88, Sec. 2.</p> <p>1. The word “son” is primarily a word of purchase and when there is nothing in the context of the will indicating any intention on the part of the testator to use it as a word of limitation the first taker receives a life estate only.</p> <p>2. Where a testator specifically devised certain real estate to a nephew “for and during the term of his natural life, with remainder in fee to his eldest son and his heirs,” the inheritance in remainder was not to the descendants of the devisee for life as heirs but as purchasers, the rule in Shelley’s Case did not apply, and such devise failed by reason of the death of the devisee for life without issue.</p> <p>3. In such a case where*a subsequent clause of the will distributed the remainder of the estate among certain residuary devisees, there is no merit in the contention that the residuary devisees were entitled under the Act of -June 4,1879, P. L. 88, Sec. 2, to the property comprised in the devise to the nephew, but the intention of the testator was that the residuary devisees should take only what was left after the distribution of the real estate which had been Specifically devised to the nephew and nothing more, and testator’s heirs at law were entitled to the property devised to the nephew.</p> <p>4. In such case, aside from testator’s intention, the void devise, having formed a part of the residuary estate, disposed of by certain clauses of the will, could not fall back into that estate.</p>

<p>Appeal, No. 413, Jan. T., 1916, by plaintiffs, from judgment of C. P. No. 4, Philadelphia Co., June T., 1912, No. 3300, for defendant n. d. v., in case of Edward B. Stoker, by his father and next friend Charles B. Stoker, and the said Charles B. Stoker in his own right, v. The Philadelphia & Beading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Audenried, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, Edward B.. Stoker, for $5,000, and for plaintiff, Charles B. Stoker, for $500. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was the entry of judgment for defend-' ant n, o, y.</p>

<p>Appeal, No. 342, Jan. T., 1915, by defendant, from judgment of C. P. Lackawanna Co., Oct. T., 1912, No. 1264, on verdict for plaintiff, in case of Susan E. Singer v. The Delaware, Lackawanna and Western Railroad Company.</p> <p>Appeal from award of a board of viewers in condemnation proceedings. Before Newcomb, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in discharging defendant’s rule to show cause why an appeal should not be stricken off.</p>

<p>Appeal, No. 13, Jan. T., 1916, by plaintiff, from judgment of G. P. Montgomery Co., Dec. T., 1914, No. 35, for defendant n. o. v., in case of Minnie G-. Simons v. PMladelpMa and Reading Railway Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $14,675 damages and 6 cents costs. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeals, Nos. 453 and 454, Jan. T., 1915, by W. M. Carter, Guardian; and Christine Carter, Andrew Carter, W. M. Carter, Libbie Lbve, Hazel Carter and Christine Carter, from decrees of O. C. Bradford Co., Dec. T., 1913, Nos. 40 and 41, dismissing petition to set aside the sale of a minor’s real estate, in Estate of Royal Carter, a Minor.</p> <p>Petition for a decree to set aside the sale of real estate of a minor. Before Maxwell, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the petition. W. M. Carter, Guardian; and Christine Carter, Andrew Carter, W. M. Carter, Libbie Love, Hazel Carter and Christine Carter appealed.</p> <p>Errors assigned were in dismissing the petition.</p>

<p>Appeal, No. 34, Jan. T., 1916, by plaintiffs, from final order of C. P. Bradford Co., Sept. T., 1914, No. 148, refusing to take off a compulsory nonsuit, in case of Cora Rundell and Alfred C. Blackwell, trading and doing business as Rundell & Company, v. Lehigh Valley Railroad Company,</p> <p>Trespass to recover damages for the destruction of plaintiffs’ building by fire communicated from the tracks of a railroad company. Before Maxwell, 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. Plaintiffs appealed.</p> <p>• Error assigned was in refusing to take off the nonsuit.</p>

<p>Appeal, No. 457, Jan. T., . 1915, by plaintiff, from decree of C. P. No. 1, Philadelphia Co., Sept. T., 1912, No. 6225, in equity, on bill in ' equity for the assignment of a patent and cross bill for an accounting, in case of Philip M. Sharpies v. Herbert McCornack; Herbert McCornack v. Philip M. Sharpies.</p> <p>Bill in equity to compel the assignment of a patent.</p> <p>Exceptions to report of J. B. Colahan, Jr., Esq., Referee.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the relief prayed for in the original bill. Plaintiff appealed.</p> <p>Errors assigned were in dismissing various exceptions to findings of fact and law of the referee and the decree of the court.</p>

<p>Equity — Royalties—Withholding payments — Good faith — Interest — Costs.</p> <p>1. A bona fide dispute as to tbe amount of indebtedness is no bar to the accruing of interest. If a tender of payment falls short of the sum found to be due at the time of tender, interest runs on the whole.</p> <p>2. Interest upon unpaid installments of royalty due from time to time for the use of a patent, is properly allowed in a suit for the royalty although the payments were withheld in good faith, and as the result of a controversy over an honest difference of opinion as to the right of the patentee to the royalty.,</p> <p>3. In a suit in equity for the assignment of a patent where defendant filed a cross bill for an accounting for royalties due from plaintiff and where none of plaintiff’s contentions are sustained, but where on the contrary it appears that a large sum is due from plaintiff to defendant, the entire costs should be imposed upon plaintiff.</p>

<p>Negligence — Master and servant — Safe place to work — Defective scaffold — Unskilled workman — Fall — Contributory negligence— Case for fury.</p> <p>1. In the absence of evidence to the contrary the presumption is that a scaffold on which an employee is directed by his foreman to work, has been erected by his employer or by some one acting for him for whose negligence the employer is responsible.</p> <p>2. In an action by an employee against his employer to recover damages for personal injuries sustained in consequence of a fall from a scaffold owing to defects therein, the questions of defendant’s negligence and plaintiff’s contributory negligence were for the jury, and the court erred in entering a compulsory nonsuit where there was no evidence as to who erected the scaffold and it appeared that plaintiff ascertained that the scaffold was defective and complained to his foreman of such fact, but was ordered to go back to work upon it, that he thereupon returned to the scaffold and the accident complained of resulted.</p>

<p>Partnerships — PaHnership loan — Judgment note by one partner —Suit on note — Subsequent action against other partner — Defenses —Bes adjudicata — Case for jury.</p> <p>1. It is only when the merits have been passed upon, or from the course of pleadings and trial they might have been passed upon, that a judgment sustains a plea of former recovery and bars a subsequent suit.</p> <p>2. A partner has no implied power to bind his copartner personally by a note under seal with power of attorney to confess judgment, and, in a suit on such note, although given for a loan to the partnership, recovery can be had only against the partner who executed it; but §uch judgment is not a bar to a subsequent action, not on the note, against the other partner for the amount of the loan.</p> <p>3. In an action against a member of a partnership for money loaned to another member of the partnership for the use of the firm, it appeared that such other partner had given judgment notes under seal as security for the loan, and that in an action on the notes judgment was entered in favor of the member who did not sign them. Defendant contended that the former, action on the notes was a bar to the subsequent action for the money loaned the firm. Held, that as defendant in the subsequent action could never have been held liable in the former action, the decision in the former action was not res adjudicata and the ease was properly submitted to the jury.</p>

<p>Appeal, No. 76, Jan. T., 1916, by defendants, from decree of C. P. No. 5, Philadelphia Co., March T., 1915, No. 3676, in equity, on bill in equity for the appointment of a receiver, in case of J. R. Taylor, Henry A. Newbold, David B. Hallinger, and David Baird v. Order of Sparta, Wm. F. Lester, Robert A. Welsh and John L. Smith.</p> <p>Bill in equity for the appointment of a receiver. Before Staake, J.</p> <p>From the record it appeared that the bill was filed by J. R. Taylor, Henry A. Newbold, David B. Hallinger, and David Baird, against the Order of Sparta. It was averred in the bill, that the complainants were a committee representing several hundred members of the Order of Sparta, all of whom had been members for over twenty-five years; that the defendant order was an unincorporated fraternal beneficial association, organized in 1880, and composed of a grand senate and subordinate senates; that its government was entrusted to William F. Lester, great regent; Robert A. Welsh, great secretary, and John L. Smith, great treasurer; that the membership of the order was divided into certain classes to whom beneficiary death certificates were issued for various amounts; that the certificate holders covenanted to pay certain assessments; those of members of twenty-five year’s standing and more, to be paid out of the “permanent fund”; that in January, 1915, the great senate had levied assessments on all members of more than twenty-five years’ standing, and directed that upon the failure of the members to pay such assessments in cash, they should be suspended and expelled from the order, and that the order was decadent, and insolvent, having a total insurance liability of over $4,700,000 and assets amounting to only $166,898.20, of which $107,000 were charges against, and were to be deducted from, beneficiary certificates thereafter to mature. The complainants prayed for an injunction restraining the order from suspending or expelling members who failed to pay the assessment levied by the order, and for an account, and for the appointment of a receiver for the assets and effects of the order. There was no charge in the bill of fraud, dishonesty or mismanagement.</p> <p>Upon the bill being filed, the court below granted a rule to show cause why a special injunction should not issue, and on the return day of the rule, an answer was filed by William F. Lester, great regent of the defendant order.</p> <p>In the answer it was averred, that the bill could not be maintained because the order was an unincorporated beneficial association, and the suit was brought against it eo nomine, without the joinder of any of the members as defendants, and the court was without jurisdiction to permit an amendment adding as defendants,- parties not served with process, and that members failing to pay their assessments after notice, within the time limited by the constitution and by-laws, would be automatically suspended and expelled, without action by the officers. It was denied that the order was decadent or insolvent.</p> <p>No replication was filed, but on the hearing of the rule, it was agreed that the hearing should be a final one. After such hearing, the trial judge found that the order was not only decadent, but insolvent, and entered a decree nisi granting an injunction as prayed for, and appointing receivers, with authority to take possession of all the assets of the order and hold them to await the ultimate disposition of the case.</p> <p>During the hearing, the trial judge permitted the record to be amended, so that the names of the defendants should read: “William F. Lester, Robert A. Welsh and John L. Smith, and others having the same interest and whose names are to be hereafter ascertained, trading as The Order of Sparta.” .To the allowance of this amendment plaintiffs excepted.</p> <p>Exceptions were filed, to the findings and .conclusions of the trial judge, but they were dismissed by the court in banc, and a final decree, substantially the same as the decree nisi, was entered. 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. 366, Jan. T., 1915, by Richard Champion Thomas Carter, from decree of O. C. Philadelphia Go., Oct. T., 1878, No. 386, dismissing petition for bill of review, in Estate of William Carter, deceased.</p> <p>Petition for bill of review to open and revise an adjudication.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the petition in an opinion by Lamorelle, J. Richard Champion Thomas Carter appealed.</p> <p>Error assigned was in dismissing the petition.</p>

<p>Replevin — Lease—Terms of lease — Pledge—Third parties — Evidence — Parol evidence rule — Conflicting evidence.</p> <p>1. Third persons are not precluded from proving the truth, however contradictory to the written statements of others. Strangers to an agreement are not hound by it and may show that it does not disclose the very truth of the matter.</p> <p>2. In an action' of replevin to recover jewelry which had been pledged to defendant trust company as security for a loan, it- appeared that plaintiffs had leased the jewelry to a contractor under a written agreement which did not authorize the pledge thereof and that such contractor subsequently pledged the jewelry to defendant. Defendant offered evidence to show that the leases did not contain the entire transaction between the plaintiffs and their pledgor and that the jewelry was delivered to the contractor by plaintiffs' with tbe express understanding that it was to be pledged by Mm as security for loans of money. The trial judge submitted the case to the jury which found a verdict for plaintiffs conditioned upon their payment to defendant the amount loaned by it upon the jewelry. Held, judgment was properly entered on the verdict.</p>

<p>Bankruptcy ■ — ■ Trustee’s title — Oharactei--Conflict of laws — Claims against trustee.</p> <p>1. A trustee in bankruptcy is vested with no higher or better right or title to the property than the bankrupt had when the trustee’s title accrued, and unless in contravention of some established principle of law or public policy a claim valid against the bankrupt will be held valid against the trustee.</p> <p>2. Unless the bankruptcy law otherwise provides, the validity of an assignment or claim is to be determined in accordance with the principles of the local law.</p> <p>Pledgor and pledgee — Retention of possession by pledgor — Validity of pledge.</p> <p>3. While in ordinary cases of pledges of personal property possession of the pledge by the pledgee is indispensable to the validity of the pledge, where by agreement of the parties, possession is to remain with the pledgor, all are bound who claim under the latter except purchasers for value without notice.</p> <p>4. An, executory agreement whereby the owner of personal property discloses an intention to make the property mentioned in the agreement security for a debt or other obligation creates an equitable lien upon the property indicated, enforceable against the property in the hands of not only the original pledgor but of his heirs, administrators, executors, voluntary assignees and purchasers or encumbrancers with notice.</p> <p>Bankruptcy — Preferences-—Validity—Pledge—Action by trustee against pledgee — Defenses—Case for jury.</p> <p>5. In' an action by a trustee in bankruptcy to recover sums paid defendant by the bankrupt within four months of the bankruptcy and at a time when he was insolvent, the trial judge erred in refusing defendant’s offer to prove that the sums so paid were the proceeds of the sale of autombbiles which more than four months prior to the bankruptcy the bankrupt had agreed to pledge with defendant to protect him from liability on certain notes of tbe bankrupt which he had endorsed and judgment for the plaintiff was reversed with a venire.</p>

<p>Appeal, No. 337, Jan. T., 1915, by plaintiffs, from judgment of C. P. Columbia Co., Dec. T., 1912, No. 158, on verdict for defendant, in case of E. M. Thompson, Receiver and Trustee of Nevada Copper Mining and Smelting Company, now to the use of Charles E. Miller, Jr., v. A. Z. Schoch.</p> <p>Assumpsit on a due bill. Before Evans, 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 were rulings on evidence and instructions to the jury.</p>

<p>Wills — Charitable bequests — Witnesses—Competency — Act of April 86,1855, P. L. 888 — Evidence—Corporations—Membership— Director — Verbal resignation — Corporate records — Contradiction.</p> <p>1. Where the names of certain persons appear on the records of a corporation as members thereof, the corporation is bound thereby ; where, however, the validity of certain bequests to the corporation depends upon whether the persons appearing on the records as members were in fact members thereof, the records are only prima facie proof of the facts which they state, and parol evidence may be received to contradict them.</p> <p>2. The fact that a person takes an active interest in a charitable organization and joins in a campaign to raise funds therefor, does not render him incompetent to act as a subscribing witness to a will containing a bequest to such charity.</p> <p>3. A person cannot be compelled to become a member of a corporation without his knowledge or consent.</p> <p>4. The resignation of a director of a corporation need not necessarily be in writing.</p> <p>5. ' A will containing a bequest to a charitable institution was witnessed by two persons, one of whom had been made director and the other a member of the institution prior to the execution of the will. The corporate records of the association showed that two years before at an annual meeting the witness who was a director had been elected for a period of four years, and that at the date of the will he was captain of a team to collect funds for the association. Evidence was introduced over objection to contradict the corporate records and to show that previous to the execution of the will such director had resigned and all his connection with the society other than his captaincy of the team to raise funds had ceased. Held, the Orphans’ Court did not err in determining that such witness was not interested in the charity within the meaning of the Act of April 26, 1855, P. L. 328, relating to the attestation of wills containing bequests to charitable uses.</p> <p>6. Where in such case the name of the other witness appeared on the records of the society as a life member but he testified that ho never joined as a life member or applied for membership or knew of his election as such; and it appeared that at one time he had contributed an amount sufficient to entitle him to life membership and that without his knowledge his name was placed on the minutes as a life member, the court did not err in holding that such witness was not interested and that the bequest was valid.</p>