Volume 255 — Pennsylvania State Reports

<p>Insurance — Fire insurance — Insurable interest■ — -Ownership — Husband and wife — Construction—Proofs of loss — Total loss.</p> <p>1. The provisions of an insurance policy are construed favorably to the insured; where he has an insurable interest .and is the substantial owner of the property so that the entire loss falls on him, a clause of the policy providing that the policy shall be void if the interest of the insured be other than unconditional and sole ownership, is satisfied, and it is not material that the insured may not have a perfect legal title to the insured property.</p> <p>2. A deed for a tract of land having a building thereon named a husband and wife as owners; the husband left the jurisdiction and abandoned the property, and the wife took out insurance on the house and a piano therein owned by her, describing herself as unconditional and sole owner thereof. In an action on the policy for loss occasioned by the destruction of the house and piano by fire, it appeared that plaintiff with her own money had purchased the lot and erected the buildings thereon and had also paid for the piano. Defendant contended that it was relieved of liability by reason of the fact that the lot stood in the name of the husband and wife and that the wife’s interest had not been correctly stated in the policy. The wife testified although' contradicted that she made full disclosure of all the facts to" the agent and that the policy was .issued in her name by his advice. Held, the requirements of the policy that the interest of the assured must be truly stated therein and that the interest pf the insured must be unconditional and sole ownership were satisfied, and a verdict for the plaintiff was sustained.</p> <p>3. Where in such ease the loss was total and was so declared by the adjuster, who came in response to immediate notice of the fire given to the company, it was not material that the plaintiff furnished no proofs of loss although the policy required that proofs of loss he furnished within sixty days, especially where it appeared that the company was furnished with full information as to the loss and made no demand for formal proofs of loss.</p>

Appeal, No. 14, Jan. T., 1916, by plaintiff, from judgment of C. P. Columbia Co., May T., 1913, No. 212, for defendant n. o. v., in case of Rosie Maguire v. The Philadelphia and Readiffg Coal and Iron Company. Trespass to recover damages for the death of plaintiff’s husband. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $6,375.83.

<p>Jurors — Competency—Ownership of hond of party to issue — Exclusion.</p> <p>1. The right to reject jurymen is not a right to select. No party can acquire a vested right to have a particular member of a jury panel sit upon the trial of his cause, until he has been accepted and sworn. It is enough that it appear that the cause has been tried by an impartial jury; it is no ground of exception that against his objection, the juror was rejected by the court upon insufficient grounds unless through rejecting persons the necessity of accepting others not qualified has been purposely created.</p> <p>2. No person should be permitted to serve on a jury who stands in any relation to a party to the cause that would carry with it prima 'facie evident marks of suspicion of favor.</p> <p>3. A stockholder in a corporation is incompetent to serve as a juror in a case in which the corporation has an interest; but the mere fact that a juror owns a bond of a defendant corporation does not make him incompetent.</p> <p>4. In an action against an electric company for damages for the death of plaintiff’s son, it was not reversible error to reject a juror on the ground that he was the owner of a bond issued by defendant company, where it appeared that there were other competent jurors in the panel who were selected.</p> <p>NegVigence — Electric companies — Defective transformer — Death —Bes ipsa loquitur — Evidence—Precautions after accident — Trials —Bemarks of counsel — Damages—Charge—Error in charge — Correction.</p> <p>5. Where in an action against an electric company to recover damages for the death of plaintiff’s son due to the alleged unsafe condition of an electric transformer, an instrument attached to a pole near plaintiff’s premises, the purpose of which was to reduce the dangerous current of electricity passing through the main wire to a safe current to be introduced into houses and all places for lighting purposes, the reduction being from a voltage of 2,300 to 110, it appeared that deceased, a fifteen year old boy, went to the barn and turned on the light; that when about to leave, deceased attempted to turn the switch for the purpose of extinguishing the light, and received a shock which killed him, the doctrine of res ipsa loquitur is applicable and a verdict for the plaintiff will be sustained.</p> <p>6. In such a case it was error to overrule a motion to strike out evidence introduced under an offer to prove that shortly after the accident repairs to the transformer were made by defendant.</p> <p>7. It is settled law in Pennsylvania that evidence of precautions taken after an alleged negligent act is not admissible for the purpose of showing antecedent negligence.</p> <p>8. In such case it was error to refuse a continuance moved for on the ground of improper remarks by plaintiff’s counsel in his speech to the jury, where it was admitted that he said that defendant’s negligence might have justified a verdict of manslaughter in a prosecution against the officers of defendant company for criminal neglect and that when the remark was brought to the attention of the court, plaintiff’s counsel npt only failed to withdraw it but said, “I reiterate it now.”</p> <p>9. In such case the complaint that the instructions to the jury 'as to the measure of damages were not sufficiently definite, was not ground for reversal, where, although in the general charge the trial judge did not limit the jury to finding the present worth of the sum at which the decedent’s services were valued, after his attention was called to the omission he gave further instructions to the effect that in estimating the value of future services the jury could allow only the present worth of the sum which they might find the value of those services to be.</p> <p>Damages — Present worth of future earnings — Annuity table.</p> <p>10. If it is desired that there shall be accuracy in calculation of the present worth of future earnings in negligence cases, proof should be made by means of annuity tables, of the present value of a series of payments of one dollar each payable through the required number of years. Proof of such tables may be made in a manner similar to that in which tables showing the expectancy of life are placed in evidence.</p>

<p>Appeal, No. 403, Jan. T., 1915, by plaintiff, from final order of C. P. Luzerne Co., Oct. T., 1907, No. 799, dismissing appeal from a valuation by the County Commissioners, of certain land situate in Wilkes-Barre Township, Luzerne County, in case of The Lehigh Valley Coal Company v. Luzerne County.</p> <p>Appeal from tax assessments of coal lands by the county commissioners sitting as a board of revision.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the appeal, Fuller, P. J., dissenting. Plaintiff appealed.</p> <p>Error assigned, among others, was in dismissing the appeal.</p>

Appeal, No. 71, Jan. T., 1916, by defendants, from decree of C. P. Luzerne Co., Jan. T., 1914, No. 8, in equity, awarding an injunction, in' case of Scranton Stove Works, a corporation, v. John B. Clark and H. Cora Clark, trading and doing business as Luzerne Manufacturing Company. Bill in equity to restrain unfair trade competition. The opinion of the Supreme Court states the facts. The court awarded the injunction as prayed for in the bill. Defendants appealed.

<p>Appeal, No. 62, Oct. T., 1916, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1916, No. 326, on verdict for defendant, in case of William Anderson v. Carnegie Steel Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The defendant demurred to the statement of claim in the affidavit of defense. The court sustained the demurrer and entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant.</p>

<p>Appeal, No. 257, Jan. T., 1915, by defendants, from judgment of C. P. Lehigb Co., April T., 1914, No. 10, in quo warranto proceedings, in case of Commonwealth of Pennsylvania ex rel. A. J. Fuehrer, V. F. Sterner, John H. Rhoads, Charles D. Rhoads, John S. Reinhard, John F. T. Hunter, Calvin A. Diehl and Wilson R. Krader v. Victor E. Grim, H: R. Ruch, H. T. Heintzelman, Wesley M. Mack and Henry R.'Stuber.</p> <p>Quo warranto to determine defendants’ right to hold office in Jordan Council No. 756, Junior Order of United American Mechanics of Pennsylvania, incorporated.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment of ouster against the respondents as officers of Jordan Council No. 746, Junior Order of United American Mechanics of Pennsylvania, an unincorporated body. Victor E. Grim, H. R. Ruch, ■ H. T. Heintzelman, Wesley M. Mack' and Henry H. Stuber, appealed.</p> <p>Error assigned, among others, was the judgment of the court. ,</p>

Appeal, No. 441, Jan. T., 1915, by defendant, from.decree of C. P. Huntingdon Co., Feb. T., 1913, No. “I,” fixing the value of the plant of a water company for the purpose of ascertaining rates to be charged, in case of Citizens of the Borough of Hunting-don, Pa., v. Huntingdon Water Supply Company. Petition for an inquiry to determine the value of the plant of a water company. The opinion of the Supreme Court states the facts.

<p>Negligence — Master and servant — Steel company — Molding—Explosion — Vice-principal—Foreman—Act of June 10, 1907, P. L. 528 —Contributory negligence — Assumption of rish — Damages—Failure to secure medical attention — Release—Fraud—Case for jury.</p> <p>1. In an action by an employee against a steel company to recover damages for personal injuries resulting from the explosion of a casting covered with sand, over which plaintiff was pouring molten iron, under the direction of a foreman, the case is for the jury and a verdict for the plaintiff will be sustained where it appeared that the sand had not been properly warmed for the reception of the molten iron, rendering the operation dangerous, and causing the accident, and that plaintiff had inquired of the foreman and had been informed that the sand had been warmed and that everything was all right.</p> <p>2. In such case, where it appeared that the foreman had general charge of the molding room with power to employ and discharge workmen, he was a vice-principal charged with the duty of providing a safe place to work for defendant’s employees, and under the Act of June 10, 1907, P. L. 523, his act in ordering the plaintiff to pour the casting could not be held to be the act of a fellow servant, as he was a person Within the meaning of the act to whose order the employee was bound to conform and did conform and was injured in consequence.</p> <p>3. In such case the foreman having informed plaintiff that everything was all right, the latter cannot as a matter of law be held guilty of contributory negligence in standing where he might be hurt by an explosion.</p> <p>4. In such case whether plaintiff assumed the risk of his position was for the jury.</p> <p>5. In such case where plaintiff’s eyes were damaged by the explosion and he was advised to have one eye removed, after it had become blind, in the hope of saving the other eye, but this was not done promptly so that ultimately both eyes were lost, the question whether he was entitled to recover for the loss of both eyes was properly submitted to the jury, in the absence of definite and clear evidence that earlier removal would have saved the second eye, under instructions that it was plaintiff’s duty after the accident to do what a reasonable and prudent man would b,ave done under like circumstances to alleviate his condition and mitigate the damages, and that his failure to do so would relieve the defendant from all additional damages resulting therefrom.</p> <p>6. In such case the validity of a release discharging defendant from all damages occasioned by the accident in consideration of the payment of money, was properly submitted to the jury, where there was evidence, although contradicted, that plaintiff had been induced to sign the release by the fraud of an agent of the insurance company, who falsely pretended to have received a message from plaintiff’s physician as to the extent of his injuries.</p> <p>7. In such case the amount of the judgment was reduced by the amount paid at the time the release was given.</p>

<p>Appeal, No. 51, Jan. T., 1916, by Massachusetts Bonding and Insurance Company, from judgment of C. P. Lehigh Co., Sept. T., 1915, No. 37, on verdict for plaintiff in case of Solomon Butz and George H. Clader, Partners, trading under the name of Butz & Clader, v. United States Metal Products Company, a Massachusetts Corporation, and Massachusetts Bonding and Insurance Company, a Massachusetts Corporation.</p> <p>Assumpsit on a bond.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,500 and judgment thereon. Massachusetts Bonding and Insurance Company appealed.</p> <p>Errors assigned were rulings on evidence, answers to points, the refusal of the court to. direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 323, Jan. T., 1915, by plaintiff, from judgment of C. P. Erie Co., May T., 1914, No. 148, on verdict for defendant, in case of Daniel O. Hopkins v. Sell C. Tate.</p> <p>Trespass for slander.</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, instructions to the jury and answers to points.</p>

<p>Judgments — Presumption of payment — Evidence to rebut presumption.</p> <p>1. The presumption, arising from lapse of time, that a judgment has been paid, is not conclusive, but is merely a presumption of fact which is rebuttable. The presumption does not arise where there is affirmative proof that the debt has not been paid, or where there are circumstances that sufficiently account for the delay of the creditors.</p> <p>2. A son recovered a judgment against his father in New Jersey in 1893. The father removed from the state in 1899 and did not return prior to his death, which occurred in 1913. In an action 'on the judgment it appeared that by the law of New Jersey an action may be brought upon a judgment within twenty years after the date of such judgment, but that if the defendant removes from the state after judgment is obtained, the time during which he is absent is not to be computed as part of the limited period in which action may be brought. The defendant relied upon the presumption of payment. The plaintiff testified that the debt had never been paid, and such fact was undisputed. It further appeared that the debtor was the father, of the creditor, that the former had been for years in straitened circumstances, and that he had but a small income which would have been seriously disturbed had the payment of tbe judgment been pressed. Held, that the plaintiff was entitled to binding instructions in his favor.</p>

<p>Constitutional law — Constitution of Pennsylvania, Article III, Section 7■ — Classification—Public schools — Orphans’ homes — Districts — Bight to attend schools — Act of June 1, 1915, P. L. 670— Validity.</p> <p>1. Between those, who stand in the same relation to the law there can be no discrimination, and the operation of a rule must extend to all members of the class to which it fairly applies without unnecessary exemption or restriction, even though the subject of the legislation is such that separate laws for separate classes are demanded ; if the class to which it applies is unnecessarily restricted or improperly selected, still the law is special, since a more enlarged class or other objects similar in character should also have had the benefit of its remedial force.</p> <p>2. The Act of June 1, 1915, P. L. 670, providing that where orphans’ homes or other institutions furnishing free support for children of school age own contiguous real estate, situate in two or more school districts, pupils residing on such real estate shall have the right to attend the public schools in any of the school districts in which any part of such real estate may be situate, attempts to segregate and place in a class by themselves school children who are inmates of orphans’ homes which own contiguous real estate in two or more districts and to make a distinction between such children and other school children,'which is not based upon real or genuine differences, but which is merely arbitrary and therefore violates Article III, Section 7, of the Constitution relating to local or special legislation.</p> <p>3. The act is also objectionable from the standpoint of the school districts in that it attempts to classify them in a purely arbitrary way.</p>

<p>Appeal, No. 140, Jan. T., 1916, by plaintiff, from decree of C. P. Crawford Co., Sept. T., 1914, No. 2, dismissing bill in equity for partition, in case of Ethel McClintock Adamson v. G-eorge S. May (now James R. Nutting, Executor of George S. May, deceased), and Marion McClintock.</p> <p>Bill in equity for partition.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law and the decree of the court.</p>

<p>Beal property — Water rights — Trespass—Statement of claim— Amendments — Trials—Evidence—Original statement as evidence —Witnesses—Oredibility—Testimony at former trial — Admissions —Proof of stenographer’s notes — Waiver—Practice, O. P.</p> <p>1. When a contract is made for the sale of land, equity considers the vendee as the purchaser of the estate sold.</p> <p>2. In an action brought by two plaintiffs for injuries to a mill caused by the deposit of the refuse of a colliery in a stream from January, 1906, until the date of suit in 1911, an amendment to the statement which named one individual only as the plaintiff, and which averred that he had purchased the property in April, 1909, under an agreement with the other party named as plaintiff in the original statement, and that the trespasses complained of had begun in April, 1909, and continued until the time oí bringing the suit, was properly allowed, although no conveyance of the legal title to the plaintiff was averred.</p> <p>3. At the trial of such case it was competent for the defendant to offer in evidence the plaintiff’s original statement for the purpose of showing that the acts complained of, were in part committed before the time when plaintiff acquired title,'so that for such injuries the plaintiff would have no right of action.</p> <p>4. In such case it was error for the trial judge to refuse to admit in evidence the testimony of plaintiff at a former hearing to the effect that he had told the party named as plaintiff in the original statement, that he would throw down the agreement'of sale as the property was depreciating; that the agreement of sale was to be annulled, and that after that date the management between them was a partnership, as such evidence tended to affect plaintiff’s rights to recover in his individual capacity; but where it appeared that on cross-examination plaintiff testified to the same facts, so that the knowledge of the plaintiff’s testimony at the former hearing was brought home to the jury, the error was cured and: was harmless.</p> <p>5. In such case such testimony might have been excluded because the stenographer’s notes at the former hearing were not' ■proven, but the fact that no such objection was made at the trial was a waiver of any defects in the method of proof.</p> <p>6. Evidence of what a witness swore to in a former proceeding even though between different parties is always admissible to contradict his present testimony and impeach his credibility. In such case his prior testimony is not considered as cónclusively establishing the fact, but as the declaration or admission of - the witness that it is so.</p> <p>1. In such ease it was error to exclude defendant’s offer of the testimony of the other party plaintiff named in the original statement, given at a prior hearing, to the effect that the plaintiff gave up the mill a year after he went into possession and thereafter had run it on shares, and that for the four years preceding the trial the plaintiff had been running the mill for the witness, as such testimony tended to contradict the statements of the witness made at the trial.</p>

<p>Appeal, No. 61, Oct. T., 1916, by Oliver McClintock, et al., from judgment of the Superior Court, affirming order of Q. S. Allegheny Co., Nov. Sess., 1914, No. 1, dismissing exceptions to report of grand jury in the Matter of the Petition of the County Commissioners for the Construction of a Public Highway Tunnel.</p> <p>Appeal from the Superior Court.</p> <p>The facts appear in the opinion of the Supreme Court and in 61 Pa. Superior Ct. 591.</p> <p>The Superior Court affirmed the order of the Court of Quarter Sessions, dismissing exceptions to the findings of the grand jury, approving the petition. Oliver Mc-Clintock, et al., appealed.</p> <p>Error assigned was the order of the Superior Court.</p>

<p>Appeal, No. 7, Jan. T., 1916, by plaintiff, from final order of C. P. Berks Co., Dec. T., 1913, No. 49, refusing to take off a compulsory nonsuit, in case of George Stern v. City of Beading.</p> <p>Trespass to recover damages for personal injuries.</p> <p>There was evidence that the hole in the street alleged to have caused plaintiff’s fall was 20 inches long, 12 inches wide and 8 inches deep. Further facts appearJby the opinion of the Supreme Court.</p> <p>The trial judge entered a compulsory nonsuit which the court subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Wills — Specific devises — Residuary clauses — Construction—Intention.</p> <p>A testator bequeathed his residuary estate in trust for the benefit of his daughter for her life and directed that upon her death “said trust to go to and vest in her child or children who shall then be living and the issue of any one or more who may have deceased, their......heirs, etc., freed from all trusts, the issue of any deceased child or children, however, if more than one to take only such share as the parent or parents would have been entitled to if living.” By codicil testator devised a house and lot to a granddaughter in fee simple and directed that upon the termination of the life estate the house and lot and the residuary estate should be separately valued and the united value be taken as the basis of an equal distribution among the grandchildren and if the valuation of the house and lot were less than a grandchild’s equal share of the whole estate, such granddaughter should be entitled to receive such an amount from the rest of the estate as would make her share equal to that of the other grandchildren, but if the house and lot should be greater in value than an equal share of the estate, the excess in value which she had received should be a charge thereupon in favor of the other grandchildren. The granddaughter survived the' testator, but died before the termination of the life estate having devised the house and lot by will; the surviving grandchildren claimed that the house and lot remained part of the testator’s residuary estate for the purposes of computation and distribution and was subject to a charge in their favor, being of greater value than their respective shares of the residuary estate. Held, that the provision for the valuation and appraisement of the house and lot, and of the residuary estate was to take effect only in the event that the granddaughter to whom the house and lot were devised should survive the life tenant; that by her death her interest in the residuary estate was divested and that her interest in the house and lot could not be charged in favor of the surviving grandchildren.</p>

Appeal, No. 332, Jan. T., 1914, by plaintiff, from final order of C. P. No. 5, Philadelphia Co., March T., 1912, No. 6343, refusing to take off nonsuit, in case of W. H. Hoffman Company, to use of George H. Earle, Jr., James E. Sullivan and Massachusetts Bonding and Insurance Company v. The Title Guaranty and Surety Company. Assumpsit on bond. The opinion of the Supreme Court states the facts.

<p>Principal and agent* — Duties of agent — Compensation—Partnership — Equity—Accounting — Master’s findings of fact — Appeal— Practice.</p> <p>1. An agent or employee is bound to be faithful to the interests of his employer, and he is not'" entitled to compensation for time and effort spent in opposing the interests of his employer and in defending his own.</p> <p>2. In a suit in equity for an accounting, it appeared that plaintiff’s decedent had been the owner of a business; that defendants, who were his sons and in his employ therein, had taken possession of the business, excluding plaintiff’s decedent from the management thereof, and had claimed it as their own; the lower court found that plaintiff was the owner of the business and entitled to possession thereof and that certain sums were due from defendants to plaintiff. One of defendants claimed the right to set off against the amount which he was ordered to pay a sum as compensation for managing the Jrasiness after he had excluded his father therefrom. Held, the master properly refused to allow compensation.for the period during which defendants denied decedent’s right to the business.</p> <p>3. In such case assignments of error questioning the accuracy of the master’s findings as to the amount of credit which must be allowed one of defendants for services rendered in the care and management of the business prior to the time when he excluded his father from the management thereof, were dismissed where the master’s findings were confirmed by the court and no clear error was shown.</p> <p>4. Findings of fact by a master, confirmed by the lower court and supported by evidence,- will not be reversed on appeal.</p> <p>5. Findings of fact by .a master depending upon documentary evidence which has not been printed by the appellant will not be reversed on appeal, especially where no specific exceptions or assignments of error question the correctness of the findings.</p>

<p>Wills — Remainders—Tested and contingent remainders — Construction — Intention.</p> <p>1. If there is a present right to a future possession though that right may be defeated by some future event, contingent or certain, there is nevertheless a vested estate. An unpossessed estate is vested if it is certain to take effect in possession, by enduring longer than the precedent estate.</p> <p>2. The láw favors vested rather than contingent estates, and unless it clearly appears from the context or circumstances of the case that a contingent interest was intended, the remainder will be regarded as vesting at the death of the testator and not at the expiration of the life tenancy.</p> <p>3-. A testator bequeathed all his estate to his wife for her life or until her remarriage and provided that upon the termination of the wife’s estate all his property should go to “my five children” (naming them) “to be equally parted and divided among them share and share alike, and to be paid and delivered unto my son at his age of twenty-one years, and to my said daughters at their several respective ages of twenty-one years or the day of marriage, whichever shall first happen. And my will and meaning is that in case any of my said children shall depart this life before such time as the part or portion of him, her or- them so dying shall become payable, then and in such case the. part or portion to him, her or them so dying shall go to and be equally divided among the survivor or survivors at the time aforesaid.” The widow and children survived the testator; one of the daughters married during her minority and died intestate after her majority leaving a child. Held, that, such daughter’s share had become vested and her child became entitled thereto, upon the subsequent death of the widow.</p> <p>Bartholemew’_s Est., 155 Pa. 314, distinguished.</p>

<p>Appeal, No. 59, Jan. T., 1916, by plaintiff, from decree of C. P. Susquehanna Co., April T., 1914, No. 100, in equity, refusing an injunction, in case of John W. Williams v. The Delaware, Lackawanna and Western Railroad Company.</p> <p>Bill in equity for an injunction.</p> <p>The- opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of'fact and law and the decree of the court.</p>

<p>Corporations — Public service corporations — Electric companies-r-Sphere of operation — Contracts with similar companies — Act of March 19,1903, P. L. 8k — Equity—Injunction.</p> <p>1. When the charter of an electric company indicates where the company may he located, the company can exercise its franchise only in the municipal division in which it is located, or territory adjacent thereto.</p> <p>Bly v. White Deer Mt. Water Co., 191 Pa. 80, followed.</p> <p>2. Implied repeals of statutes are not favored.' If two statutes can stand together the later does not abrogate the earlier.</p> <p>3. The Act of March 19, 1903, P. L. 34, authorizing electric companies to enter into contracts with each other for the use of the same poles, wires and conduits or for the purchase and. sale of electrical current, or for the operation of each other’s plants upon such terms and conditions as they may agree upon, does not authorize an electric company to supply another company occupying nonadjacent territory with electric power. The said act authorizes such contracts only between companies, both of which are authorized to supply the territory in question.</p> <p>4. Where an electric company authorized to supply a certain territory with electricity attempts without authority of law to supply electricity in another territory, an electric company authorized to supply that territory with electricity has standing in equity to maintain a bill to restrain such invasion of its territory, although' its franchise is not an exclusive one.</p> <p>5. An electric company authorized to supply a certain territory with electricity entered into a contract with another company, chartered to supply a nonadjacent territory with electricity but without plant of its own,, to supply such company with electric current. A third company, having a nonexclusive franchise to supply the same territory with electric current and having a plant located therein, brought a bill in equity to enjoin the first company from supplying the second company with electric current. The lower court awarded the relief prayed for. Held, no error.</p>

<p>Negligence — Municipalities—Highways—Defects—Death — Circumstantial proof — Contributory negligence — Proximate cause— Case for jury.</p> <p>1. In actions to recover damages for accidents resulting in death, there must be affirmative proof of negligence before recovery can be had, but it is not always essential that there should be an eye witness of the occurrence. The proof may be furnished by the circumstances themselves; the test is whether they are such as to satisfy reasonable and well balanced minds that the accident resulted from the negligence of the defendant.</p> <p>2. In an action to recover damages for the death of plaintiff’s husband, it appeared that while deceased was walking on a public road at night he fell down an embankment and received injuries which caused his death. There was evidence of a dangerous gulley in the road, extending from the outer wheel track under the guard rail of the embankment, and it appeared that just before the accident, deceased was seen leading a blind horse along the road toward the place where the gulley was, and that shortly thereafter he was found at the foot of the embankment. There was evidence that the gulley was of such size and character that the accident might have been caused by deceased falling into it and rolling down the embankment. Defendant offered evidence that deceased was intoxicated, which, however, was disputed. Held, that the question of defendant’s negligence, the contributory negligence of deceased, and the proximate cause of the accident were for the jury.</p> <p>Trials — Improper remarles of counsel — Refusal to withdraw juror —Abuse of discretion.</p> <p>3. Witnesses are entitled to the protection of the court. Where a witness has been grossly abused and insulted by counsel, it is not enough for the trial judge to characterize the remarks as highly improper and to instruct the jury to disregard them; the only effective method of correcting the mischief is to withdraw a juror and continue the ease.</p> <p>4. Where counsel for plaintiff in his speech to the jury spoke abusively of a witness, calling him a “drunkard” and “gutter-snipe,” referred to the fact that one of the largest taxpayers of the defendant township had not gone on the stand, and that 'the clean, nice men of the township were not present at the trial, it was an abuse of judicial discretion to refuse to withdraw a juror and continue the case at the request of counsel for defendant, and on appeal the judg-' ment was reversed with a venire facias de novo.</p>

<p>Appeal, No. 428, Jan. T., 1915, by defendant, from judgment of ,C. P. Luzerne Co., Dec. T., 1912, No. 759, on verdict for plaintiff, in case of Bertha Smith v. The Harwood Electric Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $4,250 and judgment'thereon. Defendant appealed:</p> <p>Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n. o. v. and in permitting plaintiff to amend her statement of claim.</p>

<p>Wills — Construction—Vested and contingent remainders — Rule of construction — Act of April 1,1909, P. L. 87 — Husband’s election to take against will.</p> <p>1. The law favors vested rather than contingent estates and unless it clearly appears from the context or the circumstances of the case that a contingent interest W'as intended, the remainder will be regarded as vesting at the death of the testator and-not at the expiration of the life tenancy.</p> <p>2. Where time is not annexed to the gift hut to the payment of it the estate is vested.</p> <p>3. Whenever there is a particular estate, the determination of which does not depend on any uncertain event, and a remainder is thereon absolutely limited to a perso'n in esse and ascertained, although the nature and duration of the estate limited in remainder may be such that it may not endure beyond the particular estate, and may therefore never take effect or vest in possession, it is not a contingent but a vested remainder.</p> <p>4. The Act of April 1, 1909, P. L. 87, is an amendment to the intestate laws and in the absence of issue entitles the widow to $5,000 out of her husband’s real or personal estate or both, in pref-</p> <p>erence to collateral heirs; and the surviving husband has a like right in his wife’s estate.</p> <p>5. The fact that a husband has received a portion of the $5,000 from the personal estate does not preclude him from afterwards' asserting his claim to the balance thereof against the real estate.</p> <p>6. Testator devised his entire estate to his wife for life, or so long as she should remain his widow, with a provision that if she should remarry she should then have only such interest in his estate as the intestate laws provided and the remainder should -go to his children; and on her death the remainder should go to testator’s children, naming them, or “the survivor of them, or to the legal representatives of'such as are dead, if any of them should die before my wife’s second marriage or death, share and share alike.” The wife survived her husband and died without having remarried. One of the children of the testator died testate and without issue before her mother, having devised whatever interest she acquired in the real estate of her father under his will. The surviving husband of'such daughter elected to take against his wife’s will and having received from her personal estate a sum less than five thousand dollars filed a petition to have appraised, and set apart to him ■the balance of said amount out of such real estate. Reid, (1) The interest acquired by such daughter under her father’s will was vested and not contingent; (2) The petitioner has not forfeited his rights by laches; and (3) The prayer of the petition should have been granted.</p> <p>7. The word “or” in the above will should be read “and”; and the term “legal representatives,” when used in a devise of realty, is equivalent to “heirs.”</p>

<p>Corporations — Railroads—Furnishing of electric power — Acts of February 19, 18J¡.9, P. L. 79, and March 19, 1908, P. L. 8k- — Ultra vires — Electric companies — Territorial rights — Bill in equity — Injunction.</p> <p>1. A corporation has no natural rights, such as an individual or partnership, and if a power is claimed for it, the words giving the power, or from which it is necessarily implied, must be found in the charter or the power does not exist. Where the provision of the charter is doubtful the power does not exist.</p> <p>2. An implied power is such as is necessary to enable the corporation to carry out a power expressly granted it so as to effect -the purpose for which .the corporation was created.</p> <p>3. A railroad company, is not given the right either by the Act of February 19, 1849, P. L. 79, or the Act of March 19, 1903, P. L. 34, to supply an independent coal company with electric current from its plant sufficient for the latter’s mining operations, and will be enjoined from so doing at the-instance of an electric company possessing the exclusive privilege, as against other electric companies, of furnishing electricity in the township in which the coal company operates.</p> <p>8 tatutes — C onstruciion- — Intention.</p> <p>4. Every statute is to be construed with reference to the object intended to be accomplished by it even to the extent of restraining the meaning of general terms where found necessary in order to interpret clearly the spirit and reason of the statute.</p> <p>5. A thing which is within the letter of a statute is not within the statute unless it be within the intention of its makers.</p>

<p>Appeal, No. 111, January T., 1916, by plaintiff, from judgment of C. P. Luzerne County, February T., 1911, No. 382, refusing to take off compulsory nonsuit in case of Joseph Watts and Anna Watts v. Borough of Plymouth.</p> <p>Trespass to recover damages for personal injuries.</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>Appeals, Nos. 7 & 8, May T., 1916, by defendant, from judgment of C. P. Dauphin Co., March T., 1912, No. 361, on verdict for plaintiffs, in case of Mabel Lerch and Harry F. Lerch v. Hershey Transit Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, Mabel Lerch, for $2,'000, and for Harry F. Lerch, for $850, and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n. o. v., instructions to the jury and answers to points.</p>

<p>Trespass — Waters—Diversion—Evidence — Opinion evidence — Non-expert testimony — Damages — Delay in payment — Punitive damages.</p> <p>1. Where farm land has been injured by the construction' of a dam across, a stream flowing past a farm so that the waters of the stream were diverted, the measure of the damage is the difference in the market value of the farm before and after the construction of the dam.</p> <p>2. In such case witnesses who were residents of the locality and familiar with the farm and other real estate, and who had some knowledge of the selling price and value of land in the neighborhood, were properly permitted to express their opinions as to the amount of the damages.</p> <p>3. In such case evidence of the alleged loss of moisture to" plaintiff’s land which had been accustomed to rise from the water and fall in the form of dew upon the adjoining fields thereby increasing their fertility, was properly submitted' to the jury.</p> <p>4. Where in such case plaintiff refused $600 offered by defendant for his damages, and in an action therefor recovered $4,280 it was not error to permit recovery of damages for delay.</p> <p>5. Where in such case defendant maintained the dam across the stream without claim or semblance of authority, and in a suit in equity brought by plaintiff to compel the removal of the dam defendant disclaimed any intention of appropriating the water by right of eminent domain and neglected to remove such dam for several months after the Supreme Court affirmed a decree ordering its removal, there was such a "careless and reckless disregard of plaintiff’s rights.as to warrant the submission of the question of punitive damages to the jury, and in such case an award of $500 as punitive ‘damages was not excessive.</p>

<p>Witnesses — Competency — Action. against corporation — Statements of stockholder — Death of stockholder — Plaintiff as witness— Act of May 88,1887, P. L. 158.</p> <p>1. Since the passage of the Act of Mgy 23, 1887, P. L. 158, the court must discountenance all objections t,o the competency of a witness on the ground of interest and policy unless they be made clearly to appear.</p> <p>2. In an action against a corporation the plaintiff is not rendered incompetent to testify as to certain relevant conversations between himself and a former officer and stockholder of the defendant company who died before the trial. It is the individual, personal, adverse interest which works a disqualification,</p> <p>Contracts — Becision—Evidence—Set-off—Assignment—Time of performance unstated- — -Prematurity of action — Change of place of performance — Increased cost — Measure of' damages — Loss of profits — Case for jury.</p> <p>3. ' In an action by a subcontractor against a general contractor to recover a balance due for work performed and for profits, which plaintiff alleged he would have made, had he been permitted to complefe his contract, it appeared that after plaintiff had performed a part of the work defendant had rescinded the contract. Defendant offered evidence that it had paid directly to a subcontractor of plaintiff, part of an amount due by plaintiff' to said subcontractor and sought to set off such' payment against plaintiff’s claim. Plaintiff alleged that under his contract with such subcontractor such payment was not due the subcontractor until after plaintiff had been paid by defendant, and consequently the payment by defendant was unauthorized. It appeared that the subcontractor had attached payments due plaintiff in the hands of defendant and that defendant, upon paying the subcontractor, had taken an assignment of his claim against plaintiff. Held, that the evidence was admissible. ,</p> <p>4. Where in such case it appeared that plaintiff had made a partial assignment of his claim to the use of a bank and that the action was marked to the use of the bank and plaintiff, it was not error to admit in evidence the assignment of the plaintiff’s claim to the bank, or to refuse a point to the effect that as the assignment was only a partial one there could be no recovery by the assignee, in view of the fact that the cause of action had not been split, that only one action had been brought, and that for the entire amount of the claim.</p> <p>5. In such case the court erred in refusing defendant’s offer' of evidence as to what it actually cost to complete the plaintiff’s contract and that the 'work was done in a careful manner, and as economically and cheaply as possible, for the purpose of showing that plaintiff could not have completed the contract at the prices</p> <p>. claimed by him, except at a loss; and it was immaterial that plaintiff had sublet part of such work where there was no evidence that plaintiff had sublet the entire work which was yet to be done, or of the financial ability of the subcontractor to complete the work for the prices named.</p> <p>6. Eor the breach of a contract damages may be recovered fpr loss of profits, the direct and immediate fruits of the contract itself, and ascertainable with reasonable certainty, when they are the result of such breach, or which under the circumstances the parties may have contemplated at the execution of the contract as the probable result of its breach; but damages for the loss of profits for the violation of a contract may not be recovered when they are uncertain, remote or speculative, pr when they grow out of a subsequent collateral or subordinatfe undertaking which was entered into on the faith of the principal contract.</p> <p>T. In such case wEere the suit was on an oral contract which did not fix any time limit for performance, and which defendant had rescinded after part performance by the plaintiff, the court did not err in refusing to charge that the plaintiff was not entitled to. recover because the contract was entire and no action could be maintained upon it until the time for its expiration had arrived.</p> <p>8. In such case where part of plaintiff’s claim was for extra hauling alleged to have been necessitated by a change in the location of the line of railroad upon which the work was done, the-court properly submitted to the jury the question whether the change increased the expense of the work for the plaintiff, where the evidence on that point was conflicting.</p>

<p>Appeal, No. 420, Jan. T., 1915, by defendant, from judgment of C. P. Fayette Co., Sept. T., 1911, No. 311, on verdict for plaintiff in case of Louise Dawson Speer, Administratrix d. b. n. c. t. a. of Charles E. Speer, deceased, v. Monongahela Railroad Company.</p> <p>Appeal from award of viewers.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $15,333.33 1-3 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were, among others, (1) in refusing defendant’s motion for judgment n. o. v., (2, 3) refusing to direct a verdict for the defendant, and (4) the charge of the court.</p>

<p>Appeal, No. 419, Jan. T., 1915, by defendant, from judgment of C. P. Fayette Co., Sept. T., 1911, No. 310, on verdict for plaintiff in case of Louise Dawson Speer, Executrix of Sara Dawson Speer; deceased, v. Monongahela Railroad ‘Company.</p> <p>Appeal from award of viewers.</p> <p>Verdict for plaintiff for $7,666.66 2-3 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were, among others, (1) in refusing defendant’s motion for judgment n. o. v., (2, 3) refusing to direct a verdict for the defendant, and (4) the charge of the cburt.</p>

<p>Appeal, No. 25, Jan. T:, 1916, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1913, No. 600, on verdict for plaintiff in case of Blaney J. Harvey v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $3,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing to direct a verdict for the defendant.</p>

<p>Appeal, No. 445, Jan. T., 1915, by plaintiff, from judgment of C. P. Huntingdon Co., Sept. T., 1914, No. 7, on directed verdict for defendant in case of Hannah E. Green, Executrix of and Sole Legatee under the will of Joseph A. Green, deceased, v. Eliza H. Green, deceased, and Edward H. Green, Executor of Eliza H. Green, deceased,, with notice to Edward H. Green, terre tenant, the following known heirs of John Houghton, deceased, viz: Edward H. Green, Catharine Rosa Green, H. L. Atkinsonj Beulah Wilson, Marne T. Ames, and Ford Houghton and other heirs of John Houghton, deceased, to the Plaintiff unknown, devisees under the will of Eliza H. Green, deceased, Geo. W. Wright, guardian ad litem for Catharine Rosa Green,</p> <p>minor child of Edward H. Green.</p> <p>Scire facias to continue lien of a covenant against a decedent’s estate.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court directed a verdict for the defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing plaintiff’s motion for judgment n. o. v.</p>

<p>Practice, Supreme Court — Equity—Bills for accounting — Findings of fact — Conclusions of law — Appeals,</p> <p>A decree in equity entered in a suit for an’ accounting will be affirmed where the findings of fact complained of were supported by sufficient evidence, the legal conclusions and decree logically followed the findings, and where error was not demonstrated in the admission of evidence.</p>

Appeal, No. 476, Jan. T., 1914, by defendant, from judgment of C. P. No. 5, March T., 1911, No. 1636, on verdict for plaintiff, in case of William J. Hogarty v. Philadelphia & Reading Railway Company. Trespass to ■ recover damages for personal injuries. The facts appear in Hogarty v. Philadelphia & Reading Ry. Co., 245 Pa. 443, and in the opinion of the Supreme Court. Verdict for plaintiff for $6,500 and judgment thereon. Defendant appealed.

<p>Contracts — Construction—Intention—Leases—Corporations—Income tax — Agreement to pay — Act of May li¡., 1915, P. L. 183.</p> <p>1. Where a lease specifically designates certain taxes which the lessee is to pay, and subsequently other taxes of a different character are levied upon the property, the principle expressio unius est exclusio alterius applies and the lessee will not be required to pay the additional taxes.</p> <p>2. In an action by the lessor of a railroad property to recover from the lessee a tax levied by the Federal government upon the income which plaintiff derived from the property and which plaintiff had paid, it appeared that the lease provided thqt the lessee should “punctually and faithfully pay all taxes, charges and assessments which, during the continuance of the term hereby demised, shall be assessed or imposed under any existing or future law on the demised premises or any part thereof, or on the business there carried on, or on the receipts, gross or net, derived therefrom, or upon the franchises of said company, for the payment or collection upon the capital stock of the (lessor) or the dividends thereon, or upon the franchises of said compapy for the payment or collection of any of which said taxes the (lessor) may otherwise be or become liable or accountable under any lawful authority whatever.” Held, that such tax on income was not within the clear and specific terms of the lease, and was not contemplated by'the parties at the time of its execution, and that the plaintiff could not, require payment thereof by defendant; and defendant was given leave to move for judgment under the Act of May 14,1915, P. L. 483.</p> <p>Mr. Justice Frazer dissents.</p>

<p>Appeal, No. 267, Jan. T., 1916, by defendants, from judgment of C. P. Luzerne Co., Oct. T., 1916, No. 472, awarding mandamus in case of James F. Mundy v. E. L. Myers, Richard A. Ward, J. C. Bell, Dr. Dodson, Percy A. Brown, A. E. Burnaford, Mary L. Trescott, William. Steinhauer and H. W. Saums, School Directors of the City of Wilkes-Barre.</p> <p>Petition for mandamus.</p> <p>The facts appear in Commonwealth v. Gritman, 255 Pa. 277.</p> <p>The relator demurred to the defendant’s answer. The court sustained the demurrer and awarded a peremptory mandamus. Defendants appealed.</p> <p>The second question in appellants’ statement of questions involved was as to the proper remedy to be invoked by the relator, quo warranto or mandamus.</p> <p>Error assigned was the order of the court.</p>

<p>Deeds — Beal property — Interlineations—Courses and distances— Monuments — Conflict—Case for jury — Ejectment.</p> <p>1. An interlineation shown to have been made before the execution of a deed takes its place as part of the instrument.</p> <p>2. It is ,an established rule in Pennsylvania that courses and distances must always give way to monuments on the ground.</p> <p>3. When an old deed calls for a public road as a boundary line it is for the jury to find where such road was located at the time of the conveyance.</p> <p>4. In an action of ejectment it was disputed whether the land claimed by plaintiff was included in a conveyance of a larger tract of land made by the common source of title of plaintiff and defendant. The deed with interlineations which were made before</p> <p>its execution, contained courses and distances describing the location of the land as contended by defendant^ but referred to a public road as a boundary. There was evidence that such road was so located as to fix the boundaries of the land as contended by plaintiff. The trial judge submitted the case to the jury, and judgment on a verdict for plaintiff was affirmed.</p>

<p>Appeal, No. 159, Oct. T., 1916, by plaintiff, from final order of O. P. Armstrong Co., March T., 1915, No. 43, refusing to take off nonsuit, in case of Emily M. Leard v. Pennsylvania Railroad Com-</p> <p>pany, a corporation.</p> <p>Trespass to recover damages for the death of plaintiff’s husband.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a compulsory nonsuit which the court subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

Appeal, No. 120, Oct. T., 1916, by defendant, from judgment of C. P. Cambria Co., March T., 1912, No. 148, on verdict for plaintiff, in case of D. J. Llewellyn v. Sunnyside Coal Co. Trespass to recover damages for injuries to real estate. The opinion of the Supreme Court states the facts. The verdict was as follows: “And no^, to wit:.

Appeal, No. 171, Oct. T., 1916, by defendant, from judgment of C. P. Armstrong Co., Sept. T., 1914, No. 170, on verdict for plaintiff, in case of Carmello Polizzi v. Commercial Fire Insurance Company, a corporation of tbe District of Columbia. Assumpsit on a fire insurance policy. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $3,260 and judgment thereon. Defendant appealed. Errors assigned were rulings on evidence and instructions to the jury. -

Appeal, No. 72, Oct. T., 1916, by plaintiff, from judgment of O. P. Allegheny Co., June T., 1910, No. 711, on directed verdict for defendant in case of Herman Stuckemann v. City of Pittsburgh. Trespass to recover damages from a municipality for' injuries caused by the leakage of surface water into plaintiff’s house in consequence of the raising of grade of city street. The opinion of the Supreme Court states the case.

<p>Appeal, No. 30, Oct. T., 1916, by plaintiff, from final order of C. P. Cambria Co., June T., 1912, No. 429, refusing to take off nonsuit, in case of Ambrose Berkebile v. Johnstown Traction Company.</p> <p>Trespass to recover, damages for personal injuries.</p> <p>The opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe trial judge entered a compulsory nonsuit, whichtbe court subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off tbe nonsuit.</p>

<p>Negotiable instruments — Notes Attestation — Material alterations' — Witness signing after execution.</p> <p>1. The addition of a name as a witness to the signatures of parties to a written instrument, after its execution by them and in their absence without their knowledge or consent, is a material alteration of the writing rendering it inadmissible in evidence; the rule is grounded in public policy, to insure the protection of written instruments from fraud and substitution, and it is not material that the instrument would have been valid if not attested by subscribing witnesses. , ' -</p> <p>2. Where, in an action on a judgment note signed by a principal and two sureties and attested by subscribing witnesses, the sureties denied that they executed the note, and it appeared that at the request of the principal obligor, one of the witnesses had signed the note in the absence of the alleged sureties and without their knowledge and consent, the court, the jury having disagreed, properly entered judgment for defendant sureties n. o. v.</p>

<p>Appeal, No. 122, Jan. T., 1916, by defendant, from judgment of Superior Court, affirming judgment of C. P. No. '5, Philadelphia Co., June T., 1914, No. 634, for plaintiff, in case of Pennsylvania Company for Insurances on Lives and Granting Annuities, William H. Henderson and George Henderson, Executors and Trustees under the Will of Adelaide C. Henderson, Deceased, and George Henderson, Individually, v. Central Trust and Savings Company.</p> <p>Appeal from the Superior Court.</p> <p>The facts appear in the opinion of the Supreme Court. See Pennsylvania Co. for Ins. on Lives & Granting Annuities v. Central Trust & Savings Co., 62 Pa. Superior Ct. 433.</p> <p>The jury found a verdict for plaintiff for $1,000, upon which judgment was entered. The Superior Court af- • firmed the judgment of the.Common Pleas Court. Defendant appealed. '</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Deeds — Covenants — Breach of covenant — Actions — Form of action — Act of May 28, 1715, 1 Smith’s Laws, 94 — Damages— Measure of damages — Cross-examination.</p> <p>1. Where a deed conveying real estate conveyed also three acres of coal surrounding and underneath the farm buildings erected on the premises and contained the words “grant, bargain, sell,” and a covenant of general warranty, a failure to deliver the coal constituted a breach of the covenants of the deed under Section 6 of the Act of May 28, 1715, 1 Smith’s Laws, 94, providing that the words “grant, bargain, sell, shall be adjudged an express covenant to the grantee that the grantor was seised of an indefeasible estate in fee simple......as also for quiet enjoyment against the grantor, his heirs and assigns,” for which assumpsit is the proper remedy.</p> <p>2. In such case the measure of damages is the relative value of the coal which the grantor failed to deliver, as compared with the value of the entire tract described in the deed estimated with regard to the price fixed by the parties for the entire purchase.</p> <p>3. Where, in such case, it appeared that the coal which the grantor intended to convey had been removed by the lessee of adjoining coal, without the grantor’s knowledge, it was competent for the plaintiff to prove the relative value of the part to which title had failed by the testimony of persons familiar with land and mineral values, in the neighborhood, and the effect of the removal of the coal upon the value of the remainder including the buildings, and plaintiff was not limited to proving the market value of the coal removed, measured by the royalties received thereon.</p> <p>4. Where in such case it appeared that the parties lived in a mining section and were familiar with the general effect of the removal of underlying coal upon buildings, springs and streams, it was to be presumed that they had these things in mind when they contracted for the sale of the land with the coal in place, and it was not error to permit recovery of damages for injuries to the buildings, springs and streams, where the general averment of the resulting damage was sufficient to warrant recovery of such damages as would naturally follow upon the breach of the covenant, particularly where the evidence as to such injuries was received without objection made on the specific ground that it was not within the scope of the statement of claim.</p> <p>5. In such case it was not error to permit plaintiff to question a witness as to tbe present condition of the buildings, wells and springs, where defendant had already cross-examined the witness concerning such matters.</p> <p>Practice — -Trials—Statement of claim — Defective statement'.</p> <p>6. Where a statement of claim is defective, but the case is tried on its merits and evidence is received without objection being made on the specific ground that it is not within the scope of the statement of claim, the appellate court will treat the statement as amended and consider the case in accordance with the evidence produced and the theory on which it was tried.</p>

<p>Appeal, No. 18, Oct. T., 1916, by defendant, from judgment of C. P. Cambria Co., Sept. T., 1913, No. 848, on verdict for plaintiff, in case of Charles B. Jones v. Pennsylvania Coal and Coke Corporation.</p> <p>Trespass to recover damages for personal injuries.</p> <p>' The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $15,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were answers to points, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Appeals, Nos. 140 and 141, Oct. T., 1916, by defendant, from judgments of O. P. Allegheny Co., Jan. T., 1913, No. 1520, on verdicts for plaintiffs in case of Alexander Saunders, Administrator of the Estate of Frances Saunders, Deceased, and Alexander Saunders v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for Alexander Saunders in the sum of $1,500 and for Alexander Saunders, Administrator of the Estate of Frances Saunders, Deceased, in the sum of $3,000 and judgments thereon. Defendant appealed.</p> <p>Errors assigned were the portions of the charge referred to in the opinion of the Supreme Court.</p>

Appeal, No. 108, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1918, No. 2637, in case of Charles A. Jimmo v. W. E. Frick. Trespass for personal injuries. The opinion of the. Supreme Court states the case. Verdict for plaintiff for $6,500 and judgment thereon. Defendant appealed. Errors assigned, among others, were the charge of the court and in refusing defendant’s motion for judgment n. o. v.

Appeals, Nos. 57 and 58, Oct. T., 1915, by Mary L. Edwards and Eliza T. Edwards, from decree of O. O. Allegheny Co., Sept. T., 1914, No. 443, dismissing exceptions to adjudication in Estate of Eliza Thaw Edwards, deceased. Exceptions to adjudication. The facts appear by the opinion of the Supreme Court. The court in banc dismissed exceptions to the findings and conclusions of the auditing judge. Mary L. Edwards and Eliza T. Edwards appealed.

<p>Appeals, Nos. 4 and 5, Oct. T., 1916, by defendant, from judgments of C. P. Venango Co., Aug. T., 1913, No. 65, on verdicts for plaintiffs, in case of James R. Davison and Ermina S. Davison, bis wife, v. Tbe Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict fdr plaintiff, James R. Davison, for $950 and for plaintiff, Ermina S. Davison, for $4,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant. n. o. v. and instructions to the jury.</p>

<p>Landlord and tenant — Leases—Mines and^mining — Mining village — Highways—Ownership by mining company — Control.</p> <p>1. Where a mining -company owns all the land upon which a mining village has. been erected, as well as the land used for highways, and leases the houses in the village to tenants upon terms providing in effect that all streets, lanes or alleys or other highways are private roads and are the property of the parly of the first part, subject at all times to its police rules and regulations, and that the lessor may keep out and away from said premises any person or persons whom it may deem necessary and expedient in the exercise of its police rights the lease is not open to the objection that it offends against public policy, and is valid.</p> <p>2. Where these restrictions are clearly imposed there is no occasion for the application of the rule that a covenant relating to highways shall be construed most strongly against the owner of'the premises; nor can the company be deprived of control ofkhe highways on the grpund that the right of way is appurtenant to the leased premises.</p> <p>3. In an action against such mining company and its officials for wilfully conspiring to injure plaintiff’s business it appeared that plaintiff had engaged in the business of selling a high explosive to defendant’s employees and that defendants had excluded plaintiff from the village. The trial judge directed a verdict for defendants upon which judgment was entered. Held, no error. '</p>

<p>Negligence — Telephone companies — Brolcen wire — Notice-^-Injury to pedestrian — Contributory negligence — Case for jury.</p> <p>1. A telephone company is entitled to reasonable time and opportunity to discover and repair defective wires; what is a reasonable time must necessarily vary with the circumstances of each case.</p> <p>2. The fact of the break of a telephone wire, although it does not carry electric current of sufficiently high voltage to be dangerous unless it comes in contact with other wires, is notice that it might become dangerous and imposes the duty of examination, and whether such duty had properly been met under all the circumstances, the lapse of time, the condition and population of the neighborhood, the urgency of the possible danger, etc., are questions for .the jury.</p> <p>3. A person injured as a result of coming in contact with such wires is entitled to the benefit of every inference fairly deducible from the testimony submitted in his favor.</p> <p>4. In an action against a telephone company to recover damages for personal injuries sustained as a result of the plaintiff, an eight-year-old boy, coming in contact with a fallen wire, heavily charged with electricity, the case was for the jury and a verdict and judgment for plaintiff will be sustained where it appeared that a storm occurred between three and five o’clock in the afternoon, causing the wire in question, which was of small voltage, to break, and fall over a trolley wire of high voltage; that the remainder of the evening was clear; that it was the custom of defendant to test all wires immediately after a storm; that other wires on defendant’s system were tested immediately after the storm in question, but such wire, was not tested until the following morning when plaintiff was injured ; and that had the wire been tested the break could have been discovered.</p>

<p>Negligence — Damages—Pain and suffering — Charge of court— Present worth. '</p> <p>1. The rule requiring the trial court in actions for personal injuries to instruct juries as to the present worth of future earnings will not he extended so as to include instructions as to the present worth of future pain, suffering and inconvenience.</p> <p>2. In actions for personal injuries, the jury should add for paiii and suffering such reasonable sum as they find from all the evidence and circumstances will fairly compénsate the plaintiff for the pain, suffering and inconvenience he has and will endure as a result of his injuries. While such amount is primarily for the jury to ascertain, it is the duty of the court to see that injustice is not done.</p>

<p>Appeal, No. 142, Oct. T., 1916, by plaintiff, from judgment for defendant of C. P. Allegheny Co., July T., 1916/ No. 1036, in case of Pennsylvania Lubricating Company v. Walter J. Wilhelm, Guardian of the Estate of Henry. Wilhelm.</p> <p>Assumpsit on an alleged contract for the sale of grease.</p> <p>The facts in the case appear in the opinion of the Supreme Court.</p> <p>The court below, being of opinion that the question of law raised by defendant’s affidavit of defense filed under Section 20 of the Practice Act of May 14,1915, P. L. 483, presented a good defense to the plaintiff’s whole claim, entered judgment for the defendant. Plaintiff appealed.</p> <p>Error assigned was the entry of judgment for the defendant.</p>

<p>Negligence — Master and servant — Joint tort feasors — Suit against master — Prior suit against servant — Res adjudicata — Binding instructions for defendant.</p> <p>1. Joint tort feasorsliip can only be affirmed when the parties charged have a community of interest in the object and purposes of the undertaking and an equal right to direct and govern the movements and conduct of each other in respect thereto. Master and servant cannot be said to be engaged in a common enterprise, for when they so engage they cease to stand in that relation towards each other.</p> <p>2. Since joint tort feasors are in pari delicto, the injured party has a right to maintain his action against each, and although he began his attempt to recover his compensation by suing one, his right to sue each of the others in separate actions can be barred only as meanwhile he has received compensation. Where, however, a person has been injured through the negligence of a servant of another, he may sue either master or servant, the one for actual negligence, the other for imputed negligence, but if he sue the one and obtain judgment, he cannot afterwards sue the other, although he has not realized on the judgment obtained.</p> <p>3. In an action to recover damages for injuries inflicted upon plaintiff through the negligence of defendant’s servant, defendant offered to prove by a court record that plaintiff had recovered judgment against the servant for the same act for which the action was brought. The lower court excluded the evidence and the jury found a verdict for plaintiff. Held, that the evidence was admissible and the judgment was reversed with a venire facias de novo.</p>

<p>Wills — Fraud—Undue influence — Republication—Issue devisavit vel non — Refusal.</p> <p>An issue devisavit vel non prayed for on the ground of alleged lack of testamentary capacity in testatrix and the exercise of fraud and undue influence by the person named as executor in the 'will was properly refused, where there was no evidence of any undue influence exercised by the person named as executor or by anyone else; and it appeared that such person subsequently died and testatrix added a codicil to her will, whereby she republished the entire will, and that although testatrix had bodily infirmities and used morphia, she had full intelligence and exact knowledge of her property and her affairs and the objects of her bounty.</p>

<p>Appeal, No. 170, Oct. T., 1916, by Commonwealth, from júdgment of C. P. Allegheny Co., April T., 1916, Docket A, No. 29, on judgment for respondents in quo warranto proceedings in case of Commonwealth of Pennsylvania ex rélatione Hyatt M. Cribbs v. John P. Moore.</p> <p>Quo warranto to determine respondent’s right to hold office as county controller of Allegheny County.</p> <p>The Commonwealth demurred to respondent’s answer. The court overruled the demurrer and entered judgment for the respondent. The Commonwealth appealed.</p> <p>Error assigned, among others, was in overruling the demurrer and entering judgment for the respondent.</p>

Appeal, No. 55, Oct. T., 1916, by defendant,. from judgment of C. P. Allegheny Co., April T., 1914, No. 83, on verdict for plaintiff, in case of Youakin Rhad v. Duquesne Light Company. Trespass to recover damages for personal injuries. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $3,300 and judgment thereon. Defendant appealed.

<p>Appeal, No. 136, Oct. T., 1916, by plaintiff, from judgment of O. P. Allegheny Co., Oct. T., 1914, No. 2276, for defendant non obstante veredicto in case of Rosa Kniss v. Borough of Duquesne.</p> <p>Trespass to recover damages for death of plaintiff’s husband.</p> <p>The facts appear by the opinion of the Supreme Court,</p> <p>Verdict for plaintiff for $5,096, which the court subse-. quently set aside and entered judgment for defendant ñ. o. v. Plaintiff appealed.</p> <p>Error assigned was. in entering judgment for the defendant n. o. y.</p>

<p>Appeal, No. 93, Oct. T., 1916, by defendant, from judgment of C. P. Butler Co., March T., 1914, No. 45, on verdict for plaintiff, in case of Sarah Agnes Kradel v. Pittsburgh, Harmony, Butler and °New Castle Railway Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,800 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 15, Oct. T., 1916, by defendants, from decree of C. P. Westmoreland Co., No. 8'69, Equity Docket, for partition and for an accounting, in case of Rebecca Shupe, widow of Peter L. Shupe, deceased, v. Roy A. Rainey, Paul J. Rainey and Gracfe Rainey Rogers, Surviving Trustees under the Will of William J. Rainey, deceased.</p> <p>Bill in equity for partition and for an accounting.</p> <p>From the record it appeared that the bill was filed in the Court of Common Pleas of Westmoreland County by Rebecca Shupe, widow of Peter L. Shupe, deceased, against Roy A. Rainey, et al.,' surviving trustees under the will of William J. Rainey, deceased. The complainant alleged that she had a dower interest in an undivided one-quarter of the coal under a tract of land in East Huntingdon Township, Westmoreland County, containing 84 acres and 13 perches,- and also in an undivided one-quarter of an adjoining tract, containing three acres and 71 perches, and prayed for partition and an accounting.</p> <p>The findings of Ruppel, P. J., were substantially as follows:</p> <p>Peter L. Shupe and complainant were married November 3,1864, and lived together as husband and wife until the death of the former, which occurred December 18, 1911. During the coverture Peter L. Shupe was the owner of a tract of land containing about 100 acres in East Huntingdon Township, Westmoreland County, which was underlaid by a vein of coal. On October 28, 1872, he entered into a partnership with four other persons, Neel, Stoner, Hurst and Schall, for the purpose of mining and selling coal and manufacturing coke under the name of the Union Coke Works. He agreed to contribute to the partnership the coal under 84 acres and 13 perches of his land and also the surface tract above mentioned.</p> <p>On June 11,1873, Shupe conveyed to his four partners an undivided three-fourths interest in the coal underlying the 84-acre tract and a similar interest or fee in the surface of the three-acre tract, his wife, the present complainant, joining in the deed. On January 1, 1880, he conveyed to William J. Rainey his undivided one-fourth interest in the coal under the 84-acre tract, and on April 19,1889, he conveyed to Gilbert T. Rafferty his undivided one-fourth interest in the three-acre tract, with 42 coke ovens and other improvements thereon. His wife did not join in either of these deeds. The title of all other parties in interest in both properties afterwards became vested in William J. Rainey.</p> <p>On January 22,1886, Shupe made a deed of general assignment for the benefit of his creditors in which his wife joined. This deed purported to convey his tract of 100 acres in East Huntingdon Township, and contained no reservations or exceptions, and made no mention of pre-' yious sales of land or of coal. The description did not include the tract of three acres 71 perches, but did in-elude the tract of 84 acres 13 perches which was under-laid by the coal previously conveyed. The land described in the deed was afterwards sold and conveyed by the assignees.</p> <p>As already stated, Shupe died December 18,1911, and William J. Rainey has also died, and the title to the properties in question has become vested in defendants as trustees under his will, subject, complainant alleges, as to an undivided one-fourth part of each, to her claim for dower. Rainey’s title was acquired in part under proceedings in partition which were before this court in Hurst v. Brenner (No. 1), 239 Pa. 216. That case, however, has no bearing on the questions raised, on the present appeal.</p> <p>The bill in this case was filed July 20,1914, and there is no evidence of any previous demand for assignment of dower having been made by complainant.</p> <p>The trial judge decided that complainant was entitled to the relief prayed for, and entered a decree ordering that one-third of the tract of three acres and 71 perches should be admeasured and set off by metes and bounds to secure her dower therein, and that, as to the coal underlying the other tract, there should be assigned and set apart for her use a money value equal to one-third of the rents, issues and profits thereof, from July 20,1914, the date when the bill was filed, and for the future, one-third of the rents, issues and profits should be set apart for her during her lifetime.</p> <p>The court dismissed exceptions to various findings of fact and law.</p> <p>Errors assigned were in dismissing the exceptions and the decree of the court.</p>

<p>Appeal, No. 100, Oct. T., 1916, by defendant, from judgment of C. P. Westmoreland Co., Áug. T., 1913, No. 410, on verdict for plaintiff, in case of Charles H. Kuhn v. Ligonier Valley Railroad Company.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $10,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned was in the admission of evidence referred to in the opinion of the Supreme Court.</p>

<p>Appeal, No. 39, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., July T., 1914, No. 2500, on verdict for plaintiff, in case of Lizzie W. Kerr and Edward C. Kerr, her Husband, v. Henry Clay Frick.</p> <p>Trespass to recover damages for personal injuries.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,856 and judgment thereon. Defendant appealed,</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Appeal, No. 60, Oct. T., 1916, by plaintiff, from judgment of C. P. Beaver Co., March T., 1914, No. 97, on verdict for defendants, in case of Farmers National Bank of Beaver Falls, Pennsylvania v. D. A. Nelson and David Knight.</p> <p>Assumpsit on a promissory note.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendants and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were instructions to the jury, answers to points, the refusal of the court to direct a verdict for plaintiff and to enter judgment for plaintiff n. o. v.</p>

<p>Eminent domain — Eight of way — Brant—Width of right of way —Construction—Intention.</p> <p>1. Where a deed to a railroad company conveys “the full and perfect right of way through and over said lots or lands” for railroad purposes, but does not designate or specify the width of the right of way, the railroad company has the right to appropriate land of £uch width as the board of directors in the exercise of their honest judgment deem necessary for the future as well as for then existing railroad purposes.</p> <p>2. Where in such case a few days after the conveyance the railroad company in eminent domain proceedings condemned a right of way on either side of said grant eighty feet in width and connecting with the grant, and filed a description of the lands taken by it in the condemnation proceedings with the clerk of the Common Pleas Court as required by its charter, it thus indicated to the grantor in such deed just what the width of the right of way through his intervening property would be and thereby became entitled to a right of way eighty feet in width under such deed.</p> <p>3. In an action of ejectment brought by the record owner of the land through which the right of way was granted for a part of the land in the possession of the railroad company and included within the eighty-foot right of way, where it appeared that the full width of eighty feet was unused from the time of the conveyance in 1850 until 1883, and that thereafter the railroad company occupied the full width of eighty feet until the action was brought in 1911, that no claim in opposition to the right of way had theretofore been presented, and that the possession of the railroad company was manifest to plaintiffs at the time when they acquired title, defendants were not estopped to claim title to a right of way eighty feet in width under its grant and the court properly directed a verdict for defendants.</p> <p>4. In such ease where it appeared that the railroad was built upon an embankment, the lower court properly decided that the right of way could not be restricted to the level top of the eighty-feet wide embankment, but also carried with it necessary slopes, although such slopes extended in some places forty feet beyond the eighty-foot right of way.</p> <p>5. Where in such ease it appeared that there was some part of the land described in the writ to which plaintiffs were entitled but where the limits of such land were not described in the testimony and did not appear in the case, the court properly refused to permit recovery for a fractional part of the land described in the writ.</p>

<p>Appeal, No. 21, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1915, No. 497, for plaintiff, for want of a sufficient affidavit of defense, in case of The Lincoln National Bank of Pittsburgh, a Corporation, v. James M. Miller.</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>The court made absolute plaintiff’s rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff for want of a sufficient affidavit of defense.</p>

<p>Promissory notes — Judgment notes — Execution — Accommodation maker — Subrogation-—-Findings of fact — Appeals.</p> <p>Where one of two joint makers of a judgment note, who had paid "the note, alleged that he was but an accommodation maker and petitioned to be subrogated to the rights of the holder against the other maker, and the evidence was conflicting, a finding and decree in favor of petitioner, based upon the verdict of a jury, will not be reversed on appeal.</p>

<p>Appeal, No. 123, Oct. T., 1916, by respondent, from judgment of C. P. Allegheny Co., April T., 1916, No. 163, in case of Commonwealth of Pennsylvania, ex rel., William Gast, v. Harry B. Kelly.</p> <p>Quo warranto to determine the title of Councilmen in the Borough of McKees Rocks.</p> <p>The opinion of the Supreme Court states the facts of the case.</p> <p>The court directed a verdict for relator, upon which judgment was entered. Respondent appealed.</p> <p>Errors assigned were (1) the judgment of the court, (2) the form of the special verdict, and (8) the refusal of the court to enter judgment for respondent non obstante veredicto.</p>

<p>Quo warranto — Act of June H, 1836, P. L. 621 — Public interest —Private grievance — Relator—Attorney general — District attorney ■ — Improper practice.</p> <p>1. When it is suggested that one is usurping a public office, the Quo Warranto Act of June 14, 1836, P. L. 621, makes provision for two distinct proceedings, the first in the interest of the public and the second to protect any private individual who may have a special grievance.</p> <p>2. If one without authority of law holds a public office and thereby keeps out of it another who is entitled thereto, he not only commits a public, but also a private, wrbng, and the individual aggrieved may have a writ in the name of the Commonwealth to secure his right.</p> <p>3. Where a public wrong alone is to be redressed, and the only question to be determined is whether the person in possession of the office is holding it without authority of law, either the attorney general or the district attorney is the proper relator.</p> <p>4. It is improper to force upon the record as a party to a quo warranto proceeding the holder of an office at the complaint of one who lays no claim to the particular office occupied.</p> <p>5. In a quo’warranto proceeding, the relator questioned the right of A to hold the office of borough councilman. After the proceedings_ had been begun, the court made an order upon B, another councilman, to appear as respondent upon the ground that B had been elected by the council to fill a vacancy by the vote of A, who unlawfully held the office which the relator claimed. Held, that the making of B a party to the proceeding was erroneous. -</p> <p>Special verdicts — Form.</p> <p>6. It is the province of a special verdict to find and place on record all the essential facts in the case, and what is not found is presumed not to exist; but, where a general verdict is sufficient, it is immaterial that the special verdict is irregular.</p> <p>Practice, Supreme Court — Assignments of error.</p> <p>7. Where there are two separate appeals from a judgment and only one set of assignments of error is filed and these comprehend several complaints not common to both appellants, the assignments are improper; but here error overlooked, as case was submitted on paper books ■ and counsel had no opportunity to file amended assignments at bar.</p>

<p>Trespass — Personal property — Unlawful sale at sheriff’s sale— Remedies.</p> <p>1. A party claiming that his goods have been unlawfully sold at sheriff’s sale should move to have the sale set aside under the Acts of April' 10, 1849, P. L. 597, and March 10, 1858, P. L. 91; if he fails so to do, he cannot successfully maintain an action of trespass against the party at whose instance the goods were sold.</p> <p>2. A party claiming that his goods were unlawfully sold at a sheriff’s sale in proceedings on a judgment entered against him has no standing'to. bring an action of trespass against the party issuing the execution, who bought the goods at the sheriff’s sale and subsequently sold them at public sale, where it appears that he knew for six weeks prior to the public sale that it was to take place, but took no steps to prevent it.</p> <p>8. Where in such case it appeared that the plaintiff claimed that the judgment was improperly entered against him, but where it further appeared that he had stated that the judgment note upon which the judgment was entered was given that his goods might, be taken in execution if he could not “come up and pay” a certain 'other obligation when it was due, he was estopped by'this admission from alleging that the sheriff’s sale of his goods was unlawful as well as by his failure to proceed under the Acts of April 10, 1849, P. L. 597, and March 10, 1858, P. L. 91, to have the sale set aside, and the trial judge made no error in entering a compulsory'nonsuit.</p>

<p>Appeals, Nos. 26, 27, 28, Oct. T., 1916, by Passavant Hospital, T. R. Pittock and George J. Gongaware, Executors, and First English Evangelical Lutheran Church in Pittsburgh, from judgment of C. P. Beaver Co., June T., 1914, No. 83, on verdict for defendants, in case of Rev. George J. Gongaware, Thomas Eaton, First English Evangelical Lutheran Church in Pittsburgh, Passavant Hospital, T. R. Pittock and Rev. George J. Gongaware, Executors of Mary E. Miller, Deceased, v. Pearl A. Donehoo, Sarah M. King, Mary E. Thomas, Margaret E. Smith, E. M. Dickson, Harry H.. Dickson and Algernon B. Dickson.</p> <p>Feigned issue to determine the validity of a will.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendants and judgment thereon. Plaintiffs appealed.</p> <p>Errors assigned were answers to points and instructions to the jury. • •:</p>

<p>Wills — Legacies—Interest on pecuniary legacies — Construction —Income.</p> <p>Where trustees under a will are given the entire real and personal estate of testator with direction to convert the same from time to time at their discretion, thus providing funds from which legacies are to be paid, and the trustees hold the personalty and postpone the conversion of the real estate beyond a one-year period for the advantage of the estate, the specific pecuniary legatees are entitled to interest on their legacies from one year from testator’s death, and this is particularly true where the testator has given the income of most of such legacies.</p>

<p>Corporations — Banks — Insolvent corporations — Liability of stockholders — Statutory liability — Act of March 11,1872, P. L. 82]f —Statute of limitations — Stockholders of record — Interest.</p> <p>1. A creditor of an insolvent corporation is entitled to hold one liable as a stockholder who appears such on the books.</p> <p>2. Where a stockholder who transfers his stock fails to have the transfer registered on the corporate books, he remains liable as a stockholder to the creditors of the corporation.</p> <p>3. Where the amount of the liability of a stockholder is ascertained, such a liability from that date will bear interest.</p> <p>4. In an action by the receiver of an insolvent bank against certain stockholders to recover on their liability under the special Act of March 11,1872, P. L. 324, providing that stockholders of the bank in question should be individually liable for all debts in double the amount of stock held by them, it was held that the action was not barred by the statute of limitations, although more-than six years from the date when the receiver was appointed, but less than six years from the date when upon petition of the receiver it was judicially ascertained that the bank’s collectable assets were insufficient to pay its debts and enforcement of the full statutory liability of stockholders was authorized by the court for that purpose.</p> <p>5. In such case, stockholders registered in the corporate books were properly held liable, although the stock had been purchased for other parties, there being no evidence that they had apprised the corporation that they Held the stock as trustees.</p> <p>6. In such case, tbe stockholders were properly held liable for interest on the demand against them from the date of the assessment.</p>

<p>Appeal, No. 135, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1914, No. 38,. on verdict for plaintiff in case of Charles F. Kirschler, Receiver of the Traders’ & Mechanics’ Bank, a corporation, v. The Colonial Trust Company, Administrator of the Estate of Charles P. Walker, deceased.</p> <p>Assumpsit on statutory liability of stockholders of a bank.</p> <p>In addition to the facts appearing in Kirschler v. Wainwright, 255 Pa. 525, it appears that defendant’s decedent, Charles P. Walker, was the holder of 106 shares of the capital stock of the Traders’ & Mechanics’ Bank, successor to the Odd Fellows’ Savings Bank, of the par value of $50 each, and that he filed an affidavit of defense to the action, .and that subsequently the Colonial Trust Company, as administrator, was substituted as defendant and filed an affidavit of defense setting forth, among other things, that the action was barred by the statute of limitations, and subsequently by leave of court pleaded the statute of limitations.</p> <p>Verdict for plaintiff by direction of the court for $14,-488.43 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in directing a verdict for the plaintiff and. the refusal to direct a verdict for the defendant and to enter judgment for the defendant n. o. v.</p>

<p>Appeal, No. 34, Oct. T., 1916, by defendant from judgment of O. P.. Allegheny Co., Oct. T., 1913, No. 2458, on verdict for plaintiff, in case of Mathilda Backer v. Borough of Aspinwall.</p> <p>Trespass to recover damages for the death of plaintiff’s husband.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict and judgment for the plaintiff for §2,250. Defendant appealed.</p> <p>Errors assigned, among others, were (1) the refusal of binding instructions for the defendant; (2) the refusal of the defendant’s point as to the measure of damages.</p>

<p>Wills — Life estates — Construction—Intention.</p> <p>Where a testator bequeathed certain parcels of real estate to his wife and directed that his son be given a good education “and to have his mother use her best judgment in assisting in any profession he may want to pursue. And also at her death all these possessions are to go to my son” the lower court properly decided that the wife took an estate for life with remainder in fee to her son.</p>

<p>Decedents’ estates — Beal estate — Devise—Jurisdiction Orphans’/ Court.</p> <p>1. The Orphans’ Court has no jurisdiction to determine the title to the real estate of a decedent as between several claimants.</p> <p>2. Where a testator directs his administrator to appoint appraisers of his real estate and permits certain of his children to elect whether to take the real estate at the appraisement, the only jurisdiction of the Orphans’ Court over such real estate is to supervise the exercise of the testamentary power given the administrator in the appointment of the appraisers. When the appointment is sufficient and free from fraud, it is conclusive and requires no confirmation of the court, nor does it belong to the court to award to any the subject of the appraisement.</p> <p>3. A testator by will directed that his administrator should “appoint three disinterested men who shall under oath value and appraise my real estate that is the farm on which I now reside and it is my will that my son......shall take my real estate at said appraisement, but if (the son) should refuse to take my real estate at said appraisement then my daughters......are to have the privilege of taking my real estate at said appraisement according to ■their seniority of age and if none of my heirs should agree to take my real estate then I order that my administrator shall put it to sale.” An appraisement was made and filed and the son died thereafter intestate, leaving issue. Testator’s two eldest daughters claimed the right to take the real estate at its appraised value. The Orphans’ Court awarded the real estate to the two daughters upon their paying the appraised value. Held, that the Orphans’ Court had no jurisdiction over the subject-matter of the controversy and the petition was dismissed.</p>

<p>Appeal, No. 32, Oct. T., 1916, by plaintiff, from judgment of O. P. Greene Co., March T., 1914, No. 86, on directed verdict for defendant, in case of Thomas J. Underwood v. Pennsylvania, Monongahela and Southern Railroad Company.</p> <p>Appeal from award of viewers in condemnation proceedings.</p> <p>Issue to determine the ownership of a fund.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were instructions to the jury and in directing a verdict for defendant.</p>

<p>Municipalities — Railroads—Streets—Dedication—Acceptance — Evidence — Ejectment. ' . '</p> <p>1. The authorization by a municipality of the construction of a railroad on a dedicated street is an acceptance of the dedication.</p> <p>2. In an action of ejectment by the owner of the fee against a railroad company to recover possession of a strip of land in the bed of what was alleged by the defendant to be a city street, the right to. occupy which defendant claimed by virtue of an ordinance, binding instructions for the defendant were proper where it appeared that the street was plotted on an ancient plan of partition in the year 1844; that in the succeeding five years it was recognized as a boundary in at least four proceedings in partition and subsequently in a number of deeds of conveyance of parcels of the land and in other proceedings; that the first municipality to include such street within its limits was incorporated in 1849, ¿tnd that the borough engineer at that time, at the direction of the council, made a borough map on which the street was shown as a public highway, and that it also, appeared as a public street on all borough maps, and was the subject of various borough provisions and regulations; that the borough became part of the city in 1872, and that the latter adopted an ordinance of 1886 granting to the defendant the right to occupy the said street, with its railroad tracks.'</p> <p>3. In such case a provision in the original deed of partition that “the streets are for the use of all the parties to the partition” was not inconsistent with a dedication of the streets and did not limit the use of such streets to the individual parties.</p> <p>Evidence — Ejectment—Ancient map — Declarations — Deceased surveyor — Photographs—Payment of taxes — Rebuttal evidence.</p> <p>4. A map prepared by a borough engineer in 1849 at the direction of borough council and found in the surveyor’s desk after his death but never formally adopted, is admissible as evidence of the existence and status of a street shown thereon, as an ancient document and as the declaration of a deceased surveyor.</p> <p>5. Photographs showing the conditions at the time of the trial are immaterial, where defendant’s rights depended on conditions at the time of the acceptance of the dedication of the street many years prior to the trial.</p> <p>6. An offer by plaintiff to show payment of taxes is not ordinarily admissible in evidence.</p>

<p>Appeal, No. 161, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., July T., 1915, No. 357, on verdict for plaintiff in case of Mary A. Jones v. Commonwealth Casualty Company.</p> <p>Assumpsit on beneficial society certificate to recover for violent death of plaintiff’s husband.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $5,393.33 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were (1) in refusing defendant’s motion for judgment non obstante veredicto and (2) the ruling on evidence referred to in the opinion of the Supreme Court.</p>

<p>Real estate — Rule to bring ejectment — Act of April 16, 190S, P. L. 212 — Remaindermen.</p> <p>1. The Act of April 16, 1903, P. L. 212, providing in effect that parties claiming an interest in real estate but not in possession, may be ruled by tbe party in possession to bring an action of ejectment, intended that all issues necessarily involved in tbe determination of title to real estate are to be settled in such ejectment proceeding; when such action is instituted, the title to the land in controversy can be determined and if tbe verdict favors tbe respondents, tbe judgment may be so moulded as to grant appropriate relief.</p> <p>2. Where a party in possession of real estate petitions under tbe said Act of 1903 for a rule on parties claiming an interest therein, to show cause why they should not bring an action of ejectment, ah answer averring^ that petitioner has but a life estate, that respondents are the remaindermen, and that owing to such facts respondents cannot bring an action of ejectment, does not show sufficient cause for not bringing the action and an order refusing the rule will on appeal be reversed with a procedendo.</p>

<p>Appeal, No. 44, Oct. T., 1916, by defendant, from judgment of O. P. Greene Go., Sept. T., 1905, No. 89, on verdict for plaintiff, in case of J. A. Addleman v. The Manufacturers Light & Heat Company, a Corporation.</p> <p>Assumpsit on a gas lease to recover royalties.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for |3,287.50 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury.</p>

<p>Leases — Oil and gas leases — Royalties—Construction—Intention.</p> <p>Where a gas lease provides a graded scale of royalties based on minute pressure of the gas, which scale contains a minimum pressure, and the lease is silent as to use of gas or payment therefor while pressure is below the minimum, the lessor is not entitled to recover for gas produced below the minimum pressure and marketed by the lessee; the lessee may produce and market such gas without paying for it.</p>

Appeal, No. 129, Oct. T., 1916, by Daniel Kramer, Administrator d. b. n. c. t. a. of the Estate of Jacob Kramer, deceased, from decree of O. C. Butler Co., Sept. T., 1909, No. 35, on petition for bill of review of an adjudication, in the matter of the Estate of Jacob Kramer, deceased. Petition for bill of review of an adjudication. The opinion of the Supreme Court states the facts. The court surcharged the executors of the estate of Frank X. Kohler, in the sum of $589.01.

Appeal, No. 143, Oct. T., 1916, by complainant, from decree of O. P. Allegheny Co., June T., 1914, No. 418, in equity, directing payment to defendants, on bill in equity for an accounting in case of National Life Insurance Company of the United States of America v. James B. Haines, Jr., Thomas P. Jones and Louis C. Sands, as Trustees for the Stockholders of the Pittsburgh Casualty Company, and others, stockholders of said corporation, individually.

<p>Decedents estates — Husband and wife — Death of wife — Intestacy — Bights of husband — Act of April 1, 1909, P. L. 87, Art. II, Sec. 1; Art. Ill, Sec. 1.</p> <p>The husband of a woman who dies intestate and without issue is not entitled under the provisions of the Act of April 1, 1909, P. L. 87, to have set apart for him real estate of the value of $5,000. He is only entitled to an absolute interest in his wife’s personal property and his curtesy in her real estate.</p>

<p>Beal estate — Conversion—Option.</p> <p>1. Where the owner of land granted an option to purchase which was exercised by the optionee in the owner’s lifetime but the owner died before the conveyance of the property or the payment of the purchase-money, there was nevertheless a conversion of the estate and the decedent’s administratrix was properly surcharged with the amount of the purchase-money, although the deeds were exer cuted by the widow and heirs of the decedent and the consideration was paid to them.</p> <p>Practice, Supreme Court — Appeals—Objections to evidence.</p> <p>2. An appellant will not be heard to complain of the inadmissibility of evidence where no exception was taken to the admisssion of such evidence in the lower court.</p>

Appeal, No. 156, Oct. T., 1916, by plaintiff, from judgment of C. P. Somerset Co., Dec. T., 1914, No. 240, for defendant n. o. v., in case of Samuel B. Philson v. John Wills. Trespass to recover damages for removing coal from plaintiff’s land. The opinion of the Supreme Court states the facts. Verdict for plaintiff for fl,860.51. The court subsequently entered judgment for defendant n. o. v. Plaintiff appealed. Error assigned was in entering judgment for defendant n. o. v.

<p>Trespass — Mines and mining — Injuries to mines — -Damages— Measure of damages — Punitive damages.</p> <p>1. A deed conveyed all the coal and other minerals “lying in and under the surface” of certain land, without liability “for any damage done to the surface of said described tract of land, in consequence of mining and working out said coal by the usual mode of working and mining the same,” and further conveyed to the grantee the “perpetual right and privilege of passing through and under said described tract of land with other coal and minerals.” After a part of the coal had been removed the then owner of the surface at the point where the entry into the mine was made diverted the waters of a stream into the mine, causing a cessation of the operations for a time; the lessees of the mine cleaned out the debris, which the water carried into the mine, and in an action of trespass sought to recover damages for the cessation of the operation of the mine and for the cost of cleaning out the debris. Defendants contended that the obstructions which plaintiffs had removed accumulated before the date of the lease to plaintiffs. Plaintiffs contended that they removed only the debris which accumulated after they took possession under their lease. The trial judge submitted the case to the jury, which found a verdict for plaintiffs upon which judgment was entered. Held, no error.</p> <p>2. Where, in such case, there were numerous acts of defendants of the same wrongful character, which were discussed by the trial judge, the fact that the court did not specifically repeat the measure of damages in discussing defendants’ sepárate acts was not material where the jury was plainly told that plaintiff could recover only for the costs of cleaning out so much of the debris as had been brought into the mine by defendant subsequent -to the time when plaintiffs took possession.</p> <p>3. Where there was evidence of repeated wrongful acts on the part of defendants, notwithstanding plaintiffs’ frequent protests that their mine was being injured and its operation interfered with, and that defendants threatened plaintiffs and their employees with bodily harm if they attempted to close the opening through which water was brought into the mine, the trial judge was justified in charging the jury that if they concluded the trespass was wilful and malicious on the part of defendants they might allow punitive as well as actual damages.</p> <p>4. In such case, the court properly charged the jury that plaintiffs could recover damages suffered by reason of the stoppage of their mine, provided the loss was caused by the harmful acts of defendants, and not otherwise.</p> <p>5. The fact that mining operations had been discontinued for fifteen years before plaintiffs took possession under their lease, did not deprive them of the right to remove coal through the entry under defendants’ land, where there was still remaining a considerable quantity of coal which plaintiffs had the right to remove, where the deed under which plaintiffs’ lessors claimed gave to them the perpetual privilege of passing through and under the land with other coal and minerals and where the deed for the surface to defendants contained a reservation of the coal with the right to use the entries for transportation of any coal that lies in the vein or stratum under the property: Webber v. Yogel, 189 Pa. 156; Patterson v. Graham, 164 Pa. 234, distinguished.</p>