Volume 256 — Pennsylvania State Reports

<p>Corporations — Contracts—Negotiable instruments — Promissory notes — Accommodation endorsement — Ultra vires — Defenses.</p> <p>1. While the validity of an act ultra vires of a corporation may be questioned by stockholders, the state, and in some instances by creditors, it cannot be questioned by a stranger to the transaction.</p> <p>2. Where a brewing company became an accommodation endorser of a promissory note, and having paid the note sought to require payment of a prior endorser, the defense that plaintiffs action in endorsing the note was ultra vires, that payment by plaintiff could not have been compelled, and that for that reason it had no right to require payment of defendant, was without merit; the payment of .the note by plaintiff in no way prejudiced defendant or affected his liability, and the court properly directed a verdict for plaintiff.</p>

<p>Appeal, No. 57, Oct. T., 1916, by defendant, from decree of O. P. Allegheny Co., Oct. T., 1915, No. 893, in equity, awarding an injunction, in case of Aaron M. Ashinsky and Beth Jacob Congregation v. Elias E. Levenson.</p> <p>Bill in equity for an injunction. Before Haymaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing awarded an injunction restraining defendant from entering into the synagogue or premises of the Beth Jacob Congregation and from insulting, molesting, approaching or accosting or in any way speaking to Rabbi A. M. Ashinsky, in the synagogue or on or near the premises thereof or in the public streets. Defendant appealed.</p> <p>Errors assigned were exceptions to findings of fact and law and the decree of the court.</p>

<p>Appeal, No. 158, Oct. T., 1916, by plaintiff, from decree of C. P. Beaver Co., Dec. T , 1914, No. 1, in equity, for defendants, on bill in equity for an accounting, in case of J. Morton Andrews, Executor of Joseph Andrews, v. Charles T. Andrews, George B. Andrews and Frank Andrews.</p> <p>Bill in equity for an accounting. Before Baldwin, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The plaintiff filed, among others, certain requests for conclusions of law, which, Avitli the court’s answers, were as folloAvs: ,</p> <p>“First: That by force and virtue of the provisions of said will, that when said defendants accepted the lands in said will devised to them, they accepted the same charged with the burden of accounting to the executor of said Avill for the one-eighth of the oil produced from said lands.</p> <p>“Answer: Refused.” (7)</p> <p>“Second: That said defendants must account to said plaintiff for the one-eighth of all the oil produced or to be produced by them or their assigns from the lands described in said lease.</p> <p>“Answer: Refused.” (6)</p> <p>The court found as a conclusion of law “That by force and virtue of the provisions of said will, when the defendants accepted the lands devised to them in and by said will, they accepted the same charged with the burden of accounting to the executor of said will for one-eighth of the oil produced from said lands, provided oil should be obtained from said lands within a reasonable time under the said lease,” (5) and entered the following decree: “And now, to wit, June 17,1916, this cause came on to be heard, at this term, was argued by counsel and upon consideration thereof, it is ordered, adjudged and decreed, viz: That the bill be dismissed at the cost of plaintiff.” '(8)</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned, among others, were the refusal to affirm plaintiff’s requests for conclusions of law (6, 7); the court’s conclusion of law (5); the decree of the court (8); and also the court’s failure to decree that the defendant should account to the plaintiff for the one-eighth of the oil and gas produced from said premises from the date of the filing, of the bill and that the defendants pay the costs of the suit. (9)</p>

<p>Appeal, No. 83, Oct. T., 1916, by Alfred E. Randall, from decree of O. O. Allegheny Co., Jan. T., 1916, No. 88, dismissing exceptions to adjudication in Estate of Anna Kvist, Deceased.</p> <p>Exceptions to adjudication. Before Miller, J.</p> <p>The auditing judge found that Alfred E. Randall had failed to support his wife for more than one year before her death, and was barred by the provisions of the Act of May 4, 1855, P. L. 430, from taking any share in her estate. The Orphans’ Court dismissed exceptions to the adjudication and entered a decree in accordance therewith. Alfred E. Randall appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 104, Oct. T., 1916, by Ellwood Lumber Company, from decree of C. P. Allegheny Co., July T., 1915, No. 701, dismissing exceptions to sheriff’s sale in case of C. B. Watkins, for use of the German Savings & Deposit Bank v. William M. Justice.</p> <p>Exceptions to sheriff’s sale. Before Davis, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The. lower court dismissed the exceptions. The Ell-wood Lumber Company, a lien creditor and exceptant, appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Practice, Supreme Gourt — Appeals — Supersedeas —Appeal by corporation — Act of May 19, 1897, P. L. 67 — Practice, O. P.</p> <p>Where a corporation appealing from the judgment of the Court of Common Pleas in a case where an appeal does not operate as a supersedeas, unless so directed by order of court, failed to present a petition for an order of supersedeas in accordance with the requirements of the rules of court and the Act of May 19, 1897, P. L. 67, the lower court did not err in striking the bond filed by appellant from the record and in dismissing appellant’s rule to show cause why the appeal should not operate as a supersedeas.</p>

<p>Appeal, No. 185, Oct. T., 1916, by relator, from judgment of O. P. Allegheny Co., Oct. T., 1916, No. 1168, refusing mandamus in case of Commonwealth of Pennsylvania ex rel. Edward H. Fey v. Thd School Board of the School District of the Borough of Duquesne, a School District of the Third Class of Pennsylvania, W. O. Libengood, L. L. Cannon, C. F. McDonald, Harry Stewart, C. F. Corman, Nathan Brown, S. D. Begester, Officers and Members of said School Board.</p> <p>Petition for writ of mandamus. Before Evans, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court overruled a demurrer to respondent’s answer and entered judgment in favor of respondent. Relator appealed.</p> <p>Error assigned, among others, was in overruling the demurrer.</p>

<p>Appeal, No. 69, Oct. T., 1916, by plaintiff, from order of O. P. Allegheny Co., Sept. T., 1911, No. 700, refusing to take off nonsuit, in case of Mary Stewart, Administratrix of B. F. Stewart, Deceased, v. Gust Copitas, Alexander Copitas, Christ Copitas and Tom Copitas, doing business as Gust-Copitas & Brothers.</p> <p>Trespass for deceit. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The lower court entered á compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Negligence — Automobiles—“Joy ride” by chauffeur — Liability of master — Binding instructions for defendant.</p> <p>1. In order to hold the owner of an automobile liable for tbe negligence of bis chauffeur, it is incumbent upon tbe plaintiff to show by direct or circumstantial evidence, not only tbat the driver was tbe servant of the owner, but tbat he was on tbe owner’s errand or engaged in bis business at tbe time of tbe accident.</p> <p>2. In an action against tbe owner of an automobile to recover damages for the death of plaintiff’s son occasioned by a collision between defendant’s automobile and a wagon on which deceased was riding, binding instructions should have been given for the defendant where it appeared that defendant’s chauffeur took the car to a garage for repairs, had the repairs made, and then, in company with an acquaintance left the repair establishment on a pleasure trip in a direction away from the owner’s garage, stopping at two or three places for drinks, and later on the trip home collided with the wagon in which decedent was seated.</p> <p>3. In such case if the chauffeur had started from the repair establishment with the intention of returning the car to tjie owner’s garage, even though he had deviated from the most direct route, the owner would have been liable.</p>

<p>Decedents’ estates — Claims for nursing■ — ■ Presumption — Evidence.</p> <p>Where a daughter-in-law made claim against the estate of her deceased mother-in-law for six years’ services as housekeeper, servant and nurse, the auditing judge did not err in rejecting the claim on the ground that there was a presumption that the services were rendered at fixed prices, payable at fixed periods, and that claimant had demanded and received her wages, especially where the evidence "was vague and indefinite as to the actual time the services were rendered, and where it appeared that at times deceased took care of her own house.</p>

<p>Insurance — Life insurance — Application — Medical questions— False statement — Recovery—Act of May 11, 1881, P. L. £0.</p> <p>1. Where the sole reason for refusing payment to the beneficiary of an insurance policy is the alleged fraudulent representations by •which defendant was induced to issue the policy, the burden of proving fraud is upon the defendant.</p> <p>2. In an action on a life insurance policy the introduction in evidence of the application for insurance and examiner’s report followed by evidence that the answers to certain questions contained therein were untrue does not meet the burden of proof, where it appears that by reason of the applicant’s inability to either read or write the English language, the answers to questions were written in the application and medical examiner’s report by representatives of defendant, and where it does not appear that the answers inserted in the blank forms were read over to the applicant, and particularly where it appears that the application was signed in blank by the applicant and filled in the following day at the agent’s office, from memoranda made by him.</p> <p>3. In such case whether the answer of the applicant were correctly transcribed by defendant’s representative was a question for the jury.</p> <p>4. Where there was evidence that the applicant was suffering from a disease of such latent character that its presence was not' discovered by defendant’s examining physician, the court properly charged that the applicant’s answers were not fraudulent even though'not in accordance with, the facts, and defendant’s rights were sufficiently protected by instructions to the effect that if the applicant made the statements set forth in the answers, knowing they were false, and the policies were issued in reliance upon them, and defendant promptly rescinded the contract on ascertaining the truth, there should he no recovery.</p> <p>5. Where in such case the application was not made part of the policy, and where there was nothing to show that the answers were intended as warranties and not mere representations, the question whether the false answer was material to the risk was properly submitted to the jury.</p> <p>6. Whether under the Act of May 11, 1881, P. L. 20, requiring all life and fire insurance policies containing a reference to the application of the insured or the by-laws of the company as forming a part of the policy or contract, to have attached to them correct copies of such application and by-laws, an application may be offered in evidence as part of defendant’s case to prove that alleged fraudulent misrepresentations were made in connection therewith, when the application is not made part of the policy or •attached thereto, not decided.</p>

<p>Appeal, No. 12, Oct. T., 1917, by plaintiff, from judgment of Superior Court, April T., 1916, No. 11, reversing judgment of C. P. Armstrong Co., Sept. T., 1912, No. 144, for plaintiff for want of a sufficient affidavit of defense in case of Ada L. Watterson v. Tbe Pennsylvania Railroad Company.</p> <p>Appeal from tbe Superior Court.</p> <p>The opinion of the Supreme Court states the ease.</p> <p>The Superior Court reversed the judgment of the Common Pleas Court. Plaintiff appealed.</p> <p>Error assigned was in reversing the judgment of the Court of Common Pleas,.</p>

<p>Appeal, No. 179, Oct. T., 1916, by plaintiff, from judgment of C. P. Allegheny Co., Jan. T., 1914, No. 2153, on verdict for defendant in case of Gilbert Rafferty v. City of Pittsburgh.</p> <p>Appeal from award of jury of view. Before Carpenter, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned, among others, was the charge of the court and answers to points.</p>

<p>Negligence — Highways—Township of first class — Electrical appliance in highway — Constructive notice — Death—Act of April' 28, 1889, P. L. 10Jh</p> <p>1. A township of the first class is bound, under the Act of April 28, 1889, P. L. 104, to keep its highways in repair at all seasons and clear of all impediments, and to protect the public against defectively installed overhead electric wires in the highway, of the condition of which-the authorities have or should have notice.</p> <p>2. In an action by a widow against a township of the first class to recover damages for the death of her husband, the case is for the jury where* it appears that deceased met his death shortly after six o’clock in the morning on a highway of defendant township by coming in contact with a detached guy wire which had fallen across a defectively insulated electric feed wire and became charged, and there is evidence that three or four township police, whose expressly imposed duty it was to examine and report daily upon the condition of the highway, saw the wire “sparking on the street” about five o’clock on the morning of the accident and made no effort to provide against accident; and further that the bad condition of the feed wire had been noticeable for twelve years.</p> <p>Practice, C. P. — Negligence—Intemperate and improper remarles of counsel.</p> <p>3. A statement by plaintiff’s counsel in addressing the-jury in a damage case “that the plaintiff and her children will have to , be supported by charity unless the jury give them a verdict,” constitutes the use of such intemperate and improper language as to make the withdrawal of a juror obligatory on request of defendant’s counsel.</p>

<p>Appeals, Nos. 183 and 184, Oct, T., 1916, by defendant, from judgments of O. P. Allegheny Co., Oct. T., 1915, No. 1683, on verdicts for plaintiffs in case of John Vilsock, Jr., a Minor, by his Father and Next Friend John Vilsock, Sr., and John Vilsock, Sr., v. Youghiogheny and Ohio Coal Company.</p> <p>Trespass to recover damages for personal injuries and for the loss of services of a minor. Before Ford, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court’s rulings upon defendant’s points for charge were as follows:</p> <p>“1. Under all the pleadings in the case your verdict must be for the defendant.”</p> <p>Answer: “Refused; notread.” (1)</p> <p>“2. The evidence discloses no negligence on thé part of the defendant and your verdict must be for defendant.”</p> <p>Answer: “Refused; notread.”' (2)-</p> <p>“3. The plaintiff John Vilsock, the minor, did not require instructions as lie was familiar with the duties of his employment and was aware of the dangers incident thereto.”</p> <p>Answer: “Refused; notread.” (3)</p> <p>Verdict for plaintiffs, John Vilsock, Sr., $1,8.47.90; and John Vilsock, Jr., $10,000, and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were (1-3) answers to defendant’s points.</p>

<p>Appeal, No. 188, Oct. T., 1916, by plaintiffs, from final order of C. P. Allegheny Co., Jan. T., 1916, No. 481, refusing to take off nonsuit in case of Michael Hurley, a minor, by his father and- next friend, Timothy Hurley, and Timothy Hurley, in his own right v. Edward E. Rieck Company.</p> <p>Trespass to recover damages for personal injuries. Before Shaper, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the close of the plaintiffs’ case the court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiffs appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

Appeal, No. 89, Oct. T., 1916, by Samuel J. Dornin and William J. Dornin, from decree of Ó. C. Westmoreland Co., Aug. T., 1914, No. 150, refusing issue devisavit vel non in Estate of William Dornin, Deceased. Appeal from decree of register admitting will to probate. Before Copeland, P. J. ' The opinion of the Supreme Court states the case. The Orphans’ Court affirmed a decree of the register of wills refusing the issue. Samuel J. Dornin and William J. Dornin appealed.

<p>Appeal, No. 167, Oct. T., 1916, by defendant, from judgment of C. P. Somerset Co., Feb. T., 1910, No. 150, on verdict for plaintiff, in case of Joseph Wadsworth v. Manufacturer’s Water Company.</p> <p>Appeal from award of viewers in condemnation proceedings. Before Johnson, J., specially presiding.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $9,547 which the court subsequently reduced to $6,000 and entered judgment on the reduced verdict. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Appeal, No. 168, Oct. T., 1916, by plaintiff, from judgment of O. P. Forest Co., Sept. T., 1913, No. 14, on verdict for plaintiff, in case of George Emlen Hare v. South Penn Oil Company.</p> <p>Ejectment for lands in Forest County. Before Hinckley, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Error assigned was in refusing plaintiff’s motion for judgment n. o. v.</p>

<p>Deeds — Conveyances—Reservations—Exceptions — Construction —Intention—Oil and gas.</p> <p>1. Though apt words of reservation be used in a deed they will be construed as creating an exception, if such was the design of the parties, ascertained from the entire instrument.</p> <p>2. Exceptions and reservations differ in legal effect, but in their creation there is no magic in words and if the meaning is clear either expression will operate for the purpose designed.</p> <p>3. If the particular clause be construed as an exception from the grant, no words of inheritance are necessary because title to the excepted part remains in the grantor and never passes to the grantee, but if it be construed as a reservation, words of inheritance are necessary, otherwise the right ceases at the death of the grantor, because the grantor creates the reservation to himself of some new right or thing out of the property which he has granted and which was not in existence at the time of the granting.</p> <p>4. Where the owner of a tract of land conveyed the same by a deed, which, inter alia, provided “Excepting and reserving from the above all oil or gas produced from the said undivided one-fourth of the above described tract of land,” the lower court properly held that the words created an exception, that the title to the oil and gas remained in the grantor and at his death vested in his residuary devisee.</p>

<p>Appeal, No. 77, Oct. T., 1916, by defendant, from judgment of C. P. Clarion Co., May T., 1911, No. 43, for plaintiff, in case of The Keystone Collieries, a Corporation, v. Edmund W. Mudge, doing business as Edmund W. Mudge & Company.</p> <p>Replevin for an ai'r-compressor. Before Criswell, P. J., specially presiding.</p> <p>The opinion of the Supreme Court slates the facts.</p> <p>The case was tried by the judge without a jury.</p> <p>The trial judge found in favor of the plaintiff and awarded plaintiff $300 damages for detention of the property. Defendant appealed.</p> <p>Errors assigned were various Jmdings • of fact and law of the trial judge and the judgment of the court.</p>

<p>Negotiable instruments — Promissory notes■ — ■Married women — Accommodation makers and endorsers — Act of June 8, 1898, P. L. 844 — Judgments—Opening judgments.</p> <p>1. While a wife may not become surety for her husband, there is no law to prevent her from paying his debts or giving him money to use in his business, even though the wife may have borrowed it, and the wisdom of her so doing is not for the courts to pass upon.</p> <p>2. The provision of the Act of June 8, 1893, P. L. 344, which forbids a married woman from becoming accommodation endorser, maker, guarantor or surety for another, applies only to the technical contract of endorsement, guaranty or suretyship included in the words of the act.</p> <p>' 3. A married woman gave a judgment note to a bank, using part</p> <p>of the proceeds to pay her husband’s debts. It appeared that in negotiating the loan, the husband acted as his wife’s agent. It did not appear that the husband was in any way liable on the note. Judgment was entered on the note and a rule was taken to open the judgment. The court discharged the rule. Held, no error.</p>

<p>Negligence — Railroads—Death—■Parties plaintiff — Acts of April 15,1851, P. L. 669, 67k, Sec. 19, and April 26,1855, P. L. 809, Sec. 1 —Railroad, crossings' — Stop, looh and listen — Presumption—Rebuttal — 0ontributory negligence — Binding ■ instructions.</p> <p>1. Where a man and his wife were injured in a railroad accident and the man died immediately, and his wife died three days thereafter without bringing an action for the death of her husband, the children were proper parties to sue for the death of their father under the Acts of April 15, 1851, P. L. 669, 674, Section 19, and April 26, 1855, P. L. 809.</p> <p>2. Where in such case it appeared that decedents were driving in a market wagon upon a turnpike which paralleled the railroad for some distance before crossing it; that the wagon was a closed one with curtains, sliding door and glass front, and that a train running in the same direction in which they were going struck them as they were about to cross, causing the injuries which resulted in their death; and that the view was unobstructed at the crossing for a distance of over 800 feet, the presumption that decedents stopped, looked and listened before attempting to cross was rebutted by the circumstances, although there was no direct evidence on this point, and the court properly directed a verdict for defendant.</p>

<p>Appeal, No. 75, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., April T., 1915, No. 2136, on verdict for plaintiff, in case of William Haberfeld v. Cornelia Mayer, Executrix of the Estate of Victor Mayer, Deceased.</p> <p>Feigned issue to determine the ownership of the proceeds of a life insurance policy.</p> <p>Verdict for plaintiff and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury.</p>

<p>Appeal, No. 82, Oct. T., 1916, by defendant, from judgment of C. P. Allegheny Co., April T., 1914, No. 2528, on verdict for plaintiff, in case of Margaret Williams v. George F. MacDonald.</p> <p>Trespass to recover damages for personal injuries.</p> <p>Verdict for plaintiff for $6,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 150, Oct. T., 1916, by Citizens National Bank of Waynesburg, Pennsylvania, from decree of C. P. Greene Co., No. 160, in equity, dismissing exceptions to report of auditor, in case of J. M. Scott, S. C. Adamson, George B. Lippincott and Joseph C. Carpenter y. Wáynesburg Brewing Company.</p> <p>Bill in equity for the appointment of a receiver.</p> <p>Exceptions to report of S. M. Smith, Esq., auditor. Before Irwin, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. The Citizens National Bank of Wáynesburg, Pennsylvania, appealed.</p> <p>Errors assigned were in dismissing exceptions.</p>

<p>Appeal, No. 40, Oct. T., 1916, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1912, No. 2838, on verdict for plaintiff, in case of Jennie Hummel v. Supreme Conclave Improved Order Heptasophs.</p> <p>Assumpsit on a death benefit certificate. Before Carnahan, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,363 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Beneficial associations — Benefit certificates — By-laws—Change— Retroactive effect — Ultra vires.</p> <p>1. Though a member of an association may know that certain amendments to the by-laws have been passed and he may even have voted for them, it does not follow from this that he consents that they may have retroactive force, modifying his contract with the society.</p> <p>2. An averment in an affidavit of defense in an action on a death benefit certificate that plaintiff by his representatives had participated in the enactment of certain amendments to the constitution and laws of the association, relating to contracts with members, does not state by inference that plaintiff consented that such bylaws should have retroactive force or agreed to the modification of his contract.</p> <p>Palmer v. Protected Home Circle, 252 Pa. 201, followed.</p> <p>3. A benefit certificate stipulated that upon compliance by the beneficiary with all the laws, rules, regulations and requirements of the association, then in force or that might thereafter be enacted by it, he should be entitled to participate in a beneficiary fund. It further provided that “in case the said (beneficiary) shall live to the age of physical disability according to the American experience table of mortality, in this case 70 years, or shall be proven to be totally and permanently physically disabled previous to that time, from any cause except intempoi%nce or immoral conduct on his part, as per article 8, sec. 9, of the constitution, from following his own or any other remunerative occupation whereby he can earn a livelihood......, he shall receive” a stipulated sum of money. Defendant contended that its charter did not contemplate the payment at the age of disability of any part of the amount of the benefit certificates issued to the members and that the inclusion of such a provision in the benefit certificate was ultra vires and void. It appeared that defendant was incorporated to promote the welfare of its members and to render them “assistance of a moral, social, intellectual and pecuniary nature,” and that among its funds was one for the payment of certain sums to members who had reached the age of permanent physical disability. Held, the court properly entered judgment for plaintiff for want of a sufficient affidavit of defense.</p>

<p>Insurance — Life insure,nee — Medical questions — Answers—Representations — Warranties.</p> <p>1. Where in. an action on a life insurance policy, it appeared that it was agreed that the statements in response to the medical questions were part of the consideration for which the policy was issued, and that the policy should not take effect unless the insured was in good health when the first premium was paid, that in answering the medical questions, the insured said he was in good health as far as he knew or believed, but where it appeared that plaintiff could not have been in perfect health when he applied for the policy, the case was for the jury, where there was no evidence that plaintiff knew or had reason to believe that he was then diseased.</p> <p>2. Where in such case it appeared that in response to a question whether the insured had “consulted a physician within the past year for anything trivial or otherwise, not mentioned above” and the insured replied “no,” but where there was evidence that he had consulted a physician, with reference to headaches and indigestion, the case was for the jury, where the dates of those consultations were not fixed and especially where a further question as to when the insured last consulted a physician was not answered; in any event, the credibility of the witness was for the jury.</p> <p>3. Where in such case it was not clear as to whether the questions as to the names of physicians last consulted by the applicant referred to an attending physician or a consulting physician, and the applicant gave the name of a consulting physician it was proper to permit the jury to determine whether the applicant might not have understood the questions in the sense in which they wore answered, and it was not material whether or not the answer was strictly accurate where the applicant gave the names of both physicians who attended him, as in such case the company could have inquired of such physicians as to the health of the applicant.</p> <p>4. Tbe report of a medical examiner is to be construed most strongly against the party by whom it is prepared, and by whose medical officer the answers to the questions are taken and written into the blanks left for that purpose.</p> <p>5. Where in such case the policy provided that the statements of the insured in the absence of fraud were to be deemed representations and not warranties, the trial judge properly decided that the incorrectness of the answers to the questions did not necessarily preclude the plaintiff from recovery.</p> <p>6. In such case it was not error to admit evidence of a witness who saw plaintiff about the time when the policy was issued that, to ordinary observation and outward appearances, he was in good health.</p>

<p>Appeal, No. 97, Oct. T., 1916, by Benjamin Warton, from decree of O. O. Allegheny Co., March T., 1915, No. 291, affirming decree of Begister of Wills, refusing petition for issue devisavit vel non, in Estate of Sarah Jane Warton, deceased.</p> <p>Appeal from decree of register of wills refusing an issue devisavit vel non.</p> <p>The register of wills refused the petition for an issue devisavit vel non. The Orphans’ Court affirmed the decree of the register of wills. Benjamin Warton appealed.</p> <p>Errors assigned were various findings of fact and law and the decree of the court.</p>

<p>Appeals, Nos. 101 and 102, Oct. T., 1912, by defendant, from judgment of O. P. Allegheny Co., July T., 1914, No. 965, on verdict for plaintiffs, in case of Harold M. Phillips, a minor, by his next friend and father, Homer E. Phillips, and Homer E. Phillips in his own right, v. Aluminum Company of America, a corporation.</p> <p>Trespass to recover damages for personal injuries. Before Reid, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiffs for $2,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing to direct a verdict for defendant.</p>

<p>Equity — Deeds — Building restrictions — Alleys — Covenants— Breach — Remedy at law- — -Injunction.</p> <p>1. The owners of two adjoining lots covenanted “to leave four and a half feet” of each o'f their lots so as to form an alley nine feet wide between them, “for the convenience of each other and the Borough of Pittsburgh and the citizens thereof forever; to be kept free and open from all obstruction whatsoever”; and for the true performance of such agreement both parties bound themselves in the penal sum of $200, to be paid to the party “performant” by the party “delinquent.” The dedication of the alley was never accepted by the borough, but the alley was opened and used by the successors in title of the parties to the agreement. The defendants, owners of property on either side of the alley, attempted to connect their buildings by a structure thereover at a height of 17% feet above the surface. Plaintiff, another property owner on the alley and a successor in title to one of the parties to the agreement, brought a bill in equity to prevent the building of the contemplated structure. Meld, an injunction was properly awarded granting the relief prayed for.</p> <p>2. In such case, the penalty fixed by the agreement for breach of the covenants was intended solely as additional security for the performance of the covenants and not as a substitute for performance, and did not operate to deprive plaintiff of his remedy in equity.</p>

<p>Beal estate — Sales subject to mortgages — Foreclosure of first mortgage — Suit on bonds against grantee by subsequent mortgagees — Action over against grantee — Case for jury.</p> <p>The owner of real estate conveyed same subject to three mortgages as part of the purchase-price. The purchaser failed to pay the mortgages and the land was sold on the first mortgage, thereby divesting the lien of the subsequent mortgages. The subsequent mortgagees, who were sisters of the grantor, entered judgment on their bonds against the grantor, who thereupon paid them the amount of their mortgages and the judgments were satisfied. In an action by the grantor against the grantee to recover the amount of the two mortgages, defendant contended that plaintiff had not made a bona fide payment of the debts secured by the mortgages, and had, therefore, sustained no damage. There was no evidence tending to show lack of good faith in the payment except the relationship of the parties and the fact that the drawer of the check by which payment on the mortgages was made afterwards appeared as counsel for the plaintiff. Held, that the court did not err in submitting the good faith of the transaction to the jury and the verdict for plaintiff was sustained.</p>

Appeals, Nos. 113, 114 and 115, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., July T., 1914, Nos. 2142 and 2515; Oct. T., 1914, No. 1436, for plaintiff, on submission to the court without a jury, in cases of Edward F. Jackman v. Harry Davis Enterprises Company. Assumpsit for rent and breach of a covenant in a lease requiring defendant to restore the premises in the same condition in which they were received.

<p>Appeal, No. 116, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., July T., 1914, No. 808, on verdict for plaintiff, in case of United States Bank and Trust Company, -a Corporation, Guardian of the Estate of Elizabeth Wilson Weckel, formerly Elizabeth Wilson and Elsie Mae Wilson, minors, children of Charles W. Wilson, deceased, v. Switch-men’s Union of North America.</p> <p>Assumpsit on a death benefit certificate. Before Eyans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,694.75 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. O', v.</p>

<p>Decedents’ estates — Administration—Parties entitled to administer — Register of wills — Discretion—Proper exercise.</p> <p>1. It is the duty of the register of wills in the first instance to grant letters of administration and in the performance of that duty he acts judicially and his selection cannot be disturbed by the Orphans’ Court or on appeal unless his discretion has been abused.</p> <p>2. While an appeal from a decision of the registerof wills granting letters of administration in a certain sense brings the matter complained of before the Orphans’ Court de novo, that court does not, strictly speaking, act originally but is confined to a review of the discretion exercised by the register.</p> <p>3. When the class primarily entitled to administration consists of several persons, it is the duty of the register to grant letters to such one or more of them as he shall judge will best administer the estate. He can grant letters to them all jointly, or to one alone. He is not bound to select the oldest in preference to the youngest of the class.</p> <p>4. Where the register of wills selected from the proper class one admittedly competent as administrator and against whom no objection was made by a majority of those interested in the estate, it was error for the Orphans’ Court to reverse the decree of the register and direct that letters he issued to another member of the class on the ground that insufficient weight had been given to evidence that decedent desired that such person should settle his estate, as the register was not required to give controlling weight to this alleged direction of decedent.</p>

Appeal, No. 131, Oct. T., 1916, by defendant, from judgment of O..P. Allegheny Co., July T., 1914, No. 966, on verdict for plaintiff, in case of Robert Schwartz v. Gutman Caplan. Trespass to recover' damages for personal injuries. Before Davis, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $5,225 and judgment thereon. Defendant appealed.

<p>Negligence — Railroad companies — Passengers — Passengers alighting from cars — Premature starting — Conflicting evidence— Case for jury — Pain and suffering — Damages—Present worth.</p> <p>1. In an action brought by a passenger on a railroad train to recover damages for personal injuries alleged to have been sustained by plaintiff in consequence of the 'premature starting of the train while she was endeavoring to alight therefrom at a station platform, where plaintiff’s testimony that while she was descending from the steps the train started with a jerk, throwing her onto the platform, was corroborated to some extent by four other witnesses, the case was for the jury and a verdict and judgment for the plaintiff will be sustained although six or seven witnesses testified for defendant that after the train had started plaintiff left the car olatform, walked down the steps and jumped off.</p> <p>2. In such case the court properly charged the jury to the effect that it is the duty of a railroad company as a common carrier to use the highest degree of care and to stop its trains for such length of time as to give passengers a reasonable opportunity to alight, and that to prematurely start the train with a sudden jerk while a passenger is in the act of alighting therefrom, which act is or should be known by those in charge of the train, is negligence on the part of the carrier.</p> <p>3. Where, in such ease, the plaintiff testified that as a result of the accident she was confined to her bed for three weeks during which time she suffered pain continuously and could not sleep at all, it was proper to charge the jury to the effect that, as a matter of common knowledge, pain might be so intense as to disable a person from laboring.</p> <p>4. In such case it was not reversible error to charge the jury that the question is “whether you have sufficient evidence to determine</p> <p>how long this pain and suffering is likely to exist......If you have</p> <p>such facts so you can determine that question, then you ought to allow for such pain, suffering and inconvenience as she may likely suffer in the future; if you do find such to be the fact-and make allowance for such future pain and suffering, the question is what would he the present worth, for you would not add that into your verdict as of to-day and be making an advance payment of what you might likely allow in the future, and it would be subject to considerable discount, and it would be a question of what would be the present worth if you add it into your verdict to-day.”</p> <p>Practice, 8. C. — Charge of court — Inadequacy—Assignment of error — Bule SI — Appeals.</p> <p>5. Where the entire charge is the subject of an exception it should be set out in full in the assignment of error; if an assignment of error to the entire charge fails to quote it in its entirety, such assignment violates Rule 31 of the Supreme Court.</p>

<p>Statutes — Construction—“Residence” — Limitation of actions— Act of May 22, 1895, P. L. 112.</p> <p>1. In ascertaining the meaning of the word “residence” in a particular statute the legislative purpose, as well as the context, should be kept in view.</p> <p>2. The Act of May 22, 1895, P. L. 112, which provides that “defendants.......who shall have become nonresident of the state after said cause of action shall have arisen shall not have the benefit of any statute of this state for the limitation of actions during the period of such residence without the state,” contemplates simply a residence of such permanency that the person in question may be found here and served with ordinary legal process, generally speaking,‘at any time.</p> <p>Raymond v. Leishman, 243 Pa. 64, compared and followed.</p> <p>Evidence — Offer relevant in part only.</p> <p>3. When evidence offered is relevant in part only the court is not bound to separate the good from the bad, but may reject it as a whole.</p> <p>Practice, Supreme Court — After-discovered evidence — Refusal of new trial — Discretion—Charge—Failure to reguest — Exceptions.</p> <p>4. Whether or not a new trial shall be granted to let in after-discovered evidence is a matter for the trial court, and the refusal of a new trial in such case will never be reversed in the absence of a clear abuse of discretion.</p> <p>5. Where a party makes no special request for charge and does not except specially to the instructions, the appellate court will not reverse for mere inadequacy in the charge.</p>

<p>Municipalities — Highway—Road law — Ordinance—Title—Equity — Preliminary injunction — Railroad sidings.</p> <p>1. An ordinance of the City of Pittsburgh providing for the widening and changing of grade of a public street and changing the name thereof, entitled, “An ordinance Opening Hamilton Avenue ......fixing the width and position of the roadway, establishing the grade thereof, and providing that the cost, damages and expenses occasioned thereby be assessed against and collected from properties benefited thereby,” is not invalid on the ground that the title does not express or indicate the real object and purpose of the ordinance, and contains more than one subject, although the street varies in width at different points, and has been dedicated by different persons, or in part was based upon a presumption of dedication, where it appeared that the street in question had existed for more'than twenty-one years, recognized by the city and used as a public highway.</p> <p>2. Property owners for whose accommodation a railroad siding is laid in a public street are not entitled to an injunction to prevent its removal by the city, and particularly cannot complain of a change in the grade of the street, on the ground that the change interferes with and renders useless suGh a siding.</p> <p>3. If plaintiff is entitled to damages, the remedy is at law and not in equity.</p>

<p>Appeal, No. 198, Oct. T., 1915, by Alexander M. Murdoch, Marsh O. Murdoch and W. D. Hillerman,,from order of O. P. Allegheny Co., July T., 1914, No: 734, dismissing exceptions and confirming-report of Board of Viewers in Re Petition of the City of Pittsburgh for the appointment of Viewers to ascertain the costs, damages, and expenses and assess the benefits arising from the widening of Hamilton Avenue, formerly Louden Street, 12th Ward, from Enterprise Street to Rastus Alley.</p> <p>Exceptions to report of board of viewers. Before Coi-ien, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Error assigned was in dismissing exceptions to report of viewers.</p>

<p>Contracts — School district — Debt—Constitutional limit — Building — Ultra vires contract — Notice of invalidity — Public policy — Injunction — Subsequent suit on implied contract — Constructive contract — Set-off—J.udgment for defendant n. o. v.</p> <p>1. The only authentic and admissible evidence of public policy of a state on any given subject is its constitution, laws, and judicial decisions, and the public policy of a state of which courts take notice and to which they give effect must he decided from those sources. Where the state has spoken, through its legislature, there is no room for speculation as to what the policy of the state is.</p> <p>2. Where a written contract of a school hoard for the erection of a school building is ultra vires and against the policy of the ¡state, as creating a debt in excess of the constitutional limit, and work under the contract is enjoined, an action subsequently brought by the contractor on an alleged implied contract must fail where all 'the work and materials were furnished under the express written contract. This is not a constructive contract.</p> <p>3. In such case where the contract was entered into-in June and the plaintiff continued work until enjoined in the following November, although notified by an association of taxpayers, before the ■work was begun, that the contract was illegal, and the taxpayers’ bill to enjoin the work was filed in July, plaintiff had not only constructive but actual notice of the invalidity of the contract.</p> <p>4. In such case where certain other work was done under a valid agreement made after the contract for the erection of the superstructure of the building, but the defendant claimed the right to set off a sum which it had paid the plaintiff on account of the work done on the superstructure under the illegal contract, the court properly refused to allow the set-off, as the amount claimed was paid under an illegal contract, and the law in such case leaves the parties in the condition in which it finds them.</p> <p>5. A contractor cannot allege ignorance of the indebtedness of a school district, and where his contract offends the constitutional inhibition he is presumed ta know that the contract is illegal and not capable of enforcement.</p>

<p>Contracts — Sale of cohe — Contract for year — Monthly deliveries —Maximum and minimum clause — Defenses—Accord and satisfaction — Payment—8 et-ojf.</p> <p>1. The mere fact that a creditor receives less than the amount claimed with knowledge that the debtor denies indebtedness beyond that amount, does not in itself constitute an accord and satisfaction. To establish accord and satisfaction payment should be offered in full satisfaction of the debt and be accompanied by acts and declarations amounting to an express notice that the payment is conditional and if accepted must be received in satisfaction of the claim.</p> <p>2. In an action for failing to deliver certain coke, as required by a-contract, it appeared that plaintiffs agreed to sell approximately 96,000 to 120,000 tons of coke during a period beginning July 1, 1911, and expiring June 30, 1912, shipments to be made in about equal monthly quantities of 8,000 to 10,000 tons as specified by the buyer. During the first five months the quantity ordered was less than the amount called for by the contract and during such time defendants made settlement with plaintiffs by paying an agreed price per ton on the basis of 8,000 tons per month, as damages suffered through defendant’s failure to order the minimum monthly quantity. In December, 1911, and during the remainder of the term of the contract defendants ordered a maximum of 10,000 tons per month. Plaintiffs failed to deliver the full amount ordered during such time. At the expiration of the contract defendants deducted from the final payment damages for such shortages and sent check for the difference. At foot of voucher was a receipt “in full for the above account,” followed by the words, “do not detach papers, please sign and return promptly.” Plaintiffs cashed check but did not sign and return attached receipt-, and subsequently wrote defendants requesting payment of balance. Upon defendants’ refusal to pay, plaintiffs brought suit; the defense was set-off, payment, and accord and satisfaction by reason of acceptance of.the check. Held, (1) under the terms of the contract, until the buyer indicated quantity and place of shipments, the seller could do nothing, and in the absence of express designation of amount by purchaser vendor might insist upon the acceptance of the minimum quantity of 8,000 tons monthly and could assume this to be the amount purchaser elected to take; (2) the action of the defendants at the beginning of the contract indicated election on their part to take the minimum, and by their proceeding for five months under such election the rights and duties of both parties thus became established and defendants were without authority to change the tonnage so fixed; (3) the provisions requiring monthly shipments to be approximately equal was not a limitation or qualification of the provision fixing the quantity the purchaser might elect to take, but was merely a guide for th® parties in determining the monthly amounts they must be prepared to accept and deliver.</p> <p>3. In such case the check attached to receipt “in full for the above account” did not amount to an accord and satisfaction where there was no express statement in the attached letter or elsewhere that the letter and cheek were to be considered as a compromise of the claim, or that it was tendered as such, or that acceptance thereof would be considered a waiver of plaintiffs’ right to the balance of their claim; but where, on the contrary, the letter expressly stated that payment was made in settlement “of the difference between” the amount of plaintiffs’ claim and defendants’ loss.</p> <p>4. In such case the burden was on the defendants to expressly inform plaintiffs of their intention that the check, if accepted, was to be regarded as a satisfaction of the claim.</p>

<p>Partition — Bights of life tenant and remainderman — Partition against consent of life tenant — Act of April 11, 1885, P. L. 199.</p> <p>1. The purpose of partition is not to sell the purparts but to divide the land if that can be done without prejudice to the whole.</p> <p>2. Under the Act of April 11, 1835, P. L. 199, giving the right to partition notwithstanding a life interest in the property, and providing “Those in remainder shall have the right to take such part as shall be awarded to them, on giving sufficient security, to be approved by the court, for the payment of the annual interest of such part to the tenant for life, unless it shall appear to the court that such tenant for life is entitled to the exclusive possession of any part of the premises described in the writ of partition; in which case the proceedings shall not interfere with the right of possession of such tenant, without his consent, but may be had subject to such possession; or such part of the premises may remain undivided during the existence of the life estate, unless otherwise disposed of by the agreement of the parties interested” the court may on petition of a remainderman set apart to a life -tenant of a part interest, a part of the property representing his interest for life, against his consent, and without making provision in the decree for payment to him of interest on the value of the part of the estate in which he was entitled to a life interest.</p> <p>3. In such case, the fact that the greater part of the purpart subject to such life interest is timber land and consequently unproductive is not sufficient ground for the reversal of a decree -of partition.</p> <p>4. After a division of property into purparts, in a manner definitely fixing the portion included in the life tenant’s estate, he becomes entitled to the exclusive possession of such portion during the remainder of his life; and the remaindermen of such purpart, under the Act of 1835, are without right to partition, except subject to his right of possession. So long as his possession is not disturbed, he cannot deny others interested in the property the right to partition, nor can he insist, upon a sale of the premises if the remaindermen are satisfied to accept the purpart at the stipulated value.</p> <p>Practice, Supreme Court — Exceptions nunc pro tunc after appeal ■ — Practice, C. P.</p> <p>5. Where there has been an apparent misapprehension and a dispute between counsel as to the effect to be given to a decree of the Supreme Court, the Supreme Court will, under certain circumstances, review the case on its merits and treat the action of the court below in permitting exceptions to its order nunc pro tunc after appeal and entering formal decree thereon, as a proper exercise of its discretion and power to amend its records.</p> <p>6. Where an appeal to the Supreme Court has been quashed, the subsequent action of the lower court should be based upon the record as set forth in the reasons for quashing given by the appellee rather than upon a verbally expressed understanding of counsel as to the reason for quashing the appeal.</p>

<p>Beal estate — Sales of real estate — Titles—Encumbrances.</p> <p>On a case stated to determine the validity of the title to land which plaintiffs had agreed to convey to defendant “free and clear of all liens and encumbrances” but which defendant refused to accept, where it appeared that owing to the vacation of a,part of the land for a public street benefits might be assessed against it, the court properly entered judgment for defendant.</p>

Bill in equity, original jurisdiction, Miscellaneous Docket No. 3, No. 188, to enjoin defendants from erecting a convention hall, in case of Harry Raff, a citizen and taxpayer of the City of Philadelphia, in his own behalf and in behalf of such citizens and taxpayers of said city as may join herein, v. City of Philadelphia; Thomas B. Smith, Mayor; George E. Datesman, Director, Department of Public Works; John M. Walton, City Controller, and William McCoach, City Treasurer of…

<p>Contracts — Options—Exclusive right of sale — Other sales during term, of option — Bight to commission.</p> <p>Where the owners of certain stock gave “the exclusive option on the sales of all stock of the said” company “for and during the term of ninety days from date and to pay the said second party a commission in cash of ten per cent, on all stock sold during such time,” the holder of the option had the exclusive right to sell the stock and was entitled to recover commissions on sales effected by others as well as by himself during the period of the contract.</p>

<p>Appeal, No. 37, Jan. T., 1915, by plaintiff, from decree of C. P. Lackawanna Co., Jan. T., 1914, No. 9, in equity, refusing an injunction, in case of City of Scranton v. Scranton Coal Company, and Elk Hill Coal & Iron Company.</p> <p>Bill in equity for an injunction. Before Newcomb, J.</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>Equity — Mines and mining — Goal mines■ — Deeds—Waiver of surface support — School building — Police power — Right to condemn —Bill in equity■ — Infunction—Refusal.</p> <p>1. It is only in rare cases of overwhelming necessity that private property may be taken or destroyed for the public good.</p> <p>■2. Where a deed (conveying underlying coal expressly waives the right of surface support, it is lawful for the grantee to remove all of the coal where its removal is done in a lawful manner, and such removal cannot constitute a public nuisance such as will be restrained in equity. The restraining of such removal would in effect be a taking of private property for public use without compensation.</p> <p>3. The surface of coal land was conveyed to a school district by deed expressly waiving the right of surface support, and a large school building was thereafter erected upon the property. The subsequent mining of the coal caused serious injury to the building and made necessary the closing of the school. A bill in equity was filed in the name of the Commonwealth at the relation of taxpayers to restrain the owner of the coal from mining it, on the ground that the mining of the coal was a public nuisance. Held, the court did not err in dismissing the bill.</p> <p>4. In such case, the school district under its right of eminent domain csuld obtain such coal as might be necessary to support its building.</p>

<p>Appeal, No. 12, Jan. T., 1916, by plaintiff, from decree of C. P. Lackawanna Co., March T., 1915, No. 1, refusing an injunction, in case of City of Scranton v. Peoples Coal Company.</p> <p>Bill in equity for an injunction. Before Newcomb, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the injunction. 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>Criminal law — Trials—Improper remarles of counsel — Motion for continuance — Refusal.</p> <p>The refusal of'a motion for continuance, based upon improper ' remarks by the district attorney in his address to the jury, is not reversible error, where it appears that the remarks, complained of were called forth as a retort to remarks made by defendant’s counsel, and where it further appears that defendant’s rights were sufficiently protected by the trial judge in his charge to the jury.</p>

<p>Corporations — Foreign corporations — Stockholders—Bight to inspect hooks — Mandamus.</p> <p>Where the officers of a foreign corporation reside in a county of this State and have custody of the hooks and papers of the corporation, the Common Pleas Courts of the county where such officers reside have Jurisdiction to award a mandamus to compel such officers to permit a stockholder to inspect the hooks and papers under their control.</p>

<p>Elections — Election returns — Discrepancy between talley sheets and certified returns — Correction—Computation — Practice, Supreme Court — Appeals.</p> <p>1. Where the tally sheets of an election are free from suspicion of fraud and the only error therein is an error of addition, the board of return judges may correct such error and base their returns upon the figures as shown by the corrected tally sheet.</p> <p>2. The tally sheets are as much part of the general returns required by law to be deposited with the prothonotary and by him presented to the court for purposes of computation, as the certified returns. They are alike complementary and together constitute one return.</p> <p>3. Where there was a discrepancy between the tally sheets and the returns certified by the election officers and it appeared that the tally sheet was free from erasures and properly kept, but that the footing was incorrect, and that the error was carried into the certificate of the election officers, the court did not err in failing to require the election officers to produce the election papers or to compute the election returns in accordance with the corrected figures shown by the tally sheet.</p> <p>4. On appeal from an order refusing a petition for the recount of the vote cast in an election district, the case comes before the Supreme Court as on a common law certiorari and the examination of the Supreme Court is confined to what is disclosed by the record, but it may examine the opinion filed by the court below for the purpose of determining whether the lower court acted upon legal grounds and within the discretion committed to it.</p>

<p>N egligence — Municipalities—Highivays—Paries—Statutes — Repeal — Local law — Uniform system — Philadelphia Act of April U¡., 1868, P. L. 1083, Sec. 21 — Act of April 27, 1909, P. L. 265 — Obstructions in highways — Automobiles—Speed—Oontributory negligence — Gase for jury.</p> <p>1. The Act of April 14, 1868, P. L. 1083, See. 21, prohibiting any person from driving or riding in Fairmount Park in the City of Philadelphia at a rate exceeding 7 miles an hour, is superseded by the Act of April 27, 1909, P. L. 265, controlling and regulating the registration, licensing and speed of motor vehicles in municipalities, in so far as the Act of 1868 limits the speed of motor vehicles in said park.</p> <p>2. Where the commissioners of said park had not exercised the authority conferred upon them by the Act of 1909 to fix a rate of speed for motor vehicles operating in the park, it was not contributory negligence, as a matter of law, to operate a motor vehicle therein at a speed of between 18 and 20 miles an hour.</p> <p>3. Where, in an action to recover damages for the death of plaintiff's wife, alleged to have been caused by the negligence of the authorities of the City of Philadelphia, in permitting a fallen tree to obstruct a road in Eairmount Park, it appeared that the tree had fallen about 4:30 in the afternoon, aiid had been seen by defendant’s policemen, that deceased was being driven by friends through the park in the evening at a speed of from 18 to 20 miles an hour; that the car wherein deceased was riding struck the tree, throwing deceased to the ground, whereby injuries were caused which resulted in her death, the case was for the jury, and it was error to enter judgment for defendant n. o. v.</p> <p>4. The fact that the commissioners of Fairmount Park had, prior to the Act of 1909, adopted a rule regulating the operation of automobiles in the park was not material, where it appeared that the road on which deceased was injured was not one of the roads to which the rule applied.</p>

<p>Practice, O. P. — Interpleader—Right to interpleader — Discretion of court — Act of March 11,1886, P. L. 76, Section 4.</p> <p>1. The Act of March 11, 1836, P: L. 76, Section 4, providing that the court may, at the instance of the defendant, under certain circumstances, require a plaintiff -to interplead with a third party where the defendant disclaims any interest in the fund in litigation and where the right thereto is claimed by or supposed to belong to such third party, who is not a party tq the action, is not mandatory; but the court must exercise a judicial and not an arbitrary discretion when it determines the right to the interpleader. If the suggestion sets forth facts sufficient to bring the case within the provisions of the statute, the relief prayed for should be granted.</p> <p>2. The provisions of the Act of 1836 are to protect a defendant from being subjected to the expense of defending two actions and the risk of being compelled to pay the same obligation twice.</p> <p>3. The payment of money into court is not a condition precedent to the right to an interpleader.</p> <p>4. An action was brought against a life insurance company by the administrators of the' insured, and thereafter an action was brought on the same policies by a creditor of the decedent, who was named in the policies as beneficiary. Defendant thereafter filed a petition for an interpleader before a plea had been filed in the second suit, averring that both suits were for the recovery of tibe same funds, that defendant disclaimed having any interest in such funds, that defendant had not incurred any liability independent of such funds to either of the claimants, and that unless an interpleader were granted defendant would be subjected to expense in defending two suits, and the risk of payment of the money twice. Held, the lower court erred in discharging the rule for the interpleader and for leave to pay the money into court.</p> <p>5. In such case the fact that the defendant issued the policies in which decedent’s creditor was the beneficiary, thereby establishing a contractual relation between the creditor and the defendant, did not operate to deprive the defendant of the right to the interpleader.</p>

<p>Beneficial associations — Membership application — Physical condition — Misrepresentations —Death benefit — Uncontradicted oral evidence — Case for jury■ — ■New trials — Practice, Supreme Qourt.</p> <p>1. Where a case depends on oral testimony, although unContradicted, such testimony must be submitted to the jury.</p> <p>2. Where a verdict is against the weight of the evidence a new trial should be awarded; but where no motion for a new trial is made, the Supreme Court will not reverse a judgment entered on'a verdict although inclined to the view that a different result would better accord with the demands of justice.</p> <p>3. In an action against a beneficial association on a death certificate, where the defense was that in the application for membership in the defendant association deceased had made material misrepresentations and concealments as to his physical condition and medical history, and in particular a statement to the effect that he had not consulted a physician in regard to personal ailments within a certain time, the case was for the jury and .a verdict for the plaintiff will be sustained, although there .was uncontradicted testimony of an attending physician that at the very time the insured submitted his application for membership he was and had been for some time a patient receiving treatment for tuberculosis, from which he died shortly thereafter.</p>

<p>Appeal, No. 12, Oct. T., 1916, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1912, No. 2242, on verdict for plaintiff, in case of Bessie Nydes v. Home Guards of America.</p> <p>Assumpsit on a death benefit certificate. Before Hay-maker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,408.50 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 103, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1915, No. 692, Docket “D,” on verdict for plaintiff, in case of W. O. Weiskircher v. Joseph A. Connelly.</p> <p>Assumpsit on a promissory note. Before Ford, J.</p> <p>The opinion of the Supreme Court states tbe facts.</p> <p>Verdict for plaintiff for $4,255 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to tbe jury and in refusing a new trial.</p>

<p>Negligence — Street railways — Passenger boarding car — Sudden starting — Fall—Oustoman-y stopping place — Regular stopping place —Gase for jury.</p> <p>1. Passengers may lawfully get on and off a trolley ear when it is standing at a place where it is in the habit of stopping, apparently for that purpose, and under such circumstances it is the duty of the carrier to afford them a reasonable opportunity so to do. A customary stopping place becomes as to the public in effect a regular stopping place.</p> <p>2. In an action against a street railway company to recover for personal injuries sustained by an intending passenger while attempting to board a car, the case is for the jury where the evidence was conflicting as to whether the accident was occasioned by the sudden starting of the car as plaintiff was about to board it at a customary though not a regular stopping place, or whether plaintiff fell and sustained the injuries complained of while attempting to board the car while in motion or by slipping off a stone or in the mud while making the attempt to board it.</p> <p>3. Where in such ease it appeared that plaintiff was seventeen years of age and earned $1.76 per day, that he intended to’become a mechanic, that he had been disabled from working for some time, that he suffered great pain and had been compelled to undergo two operations resulting in the amputation of his leg, and that his earning power was impaired because of Ms permanently crippled condition, a verdict of $10,000 was not so clearly excessive as to warrant tbe Supreme Court in granting a new trial.</p>

<p>Appeal, No. 121, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., July T., 1914, No. 1114, on verdict for plaintiff, in case of Francis O’Hanlon, a minor, by his next friend and father, Matthew O’Hanlon, and Matthew O’Hanlon, in his own right, v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Ford, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, Matthew O’Hanlon, for $3,000 and for plaintiff, Francis O’Hanlon, for $10,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing a new trial.</p>

<p>Negligence — Master and servant — Car cleaner — Workman caught, between ccm-s — Railroads—Assumption of risk — Federal Employers’ Liability Act — Contributory negligence — Charge—Case for jury.</p> <p>1. While a master is not responsible for accidents occurring to his servants from ordinary risks and dangers which are incident to the business in which he is engaged, he is liable for injuries arising from dangers such as, in good faith, he ought to provide against.</p> <p>2. In a clear case the question of assumption of risk by the employee is one of law for the court, but where there is doubt as to the facts or as to the inferences to be drawn from them the question is for the jury.</p> <p>3. Where coemployees ‘are distant from each other and it is dangerous for one to have another continue at his work, he who is subject to the peril not being in a position to ascertain the true conditions, it is the duty of the employer to frame and promulgate such rules and regulations as will afford safety to employees.</p> <p>4. The discontinuance of a precautionary measure amounts to an assertion of the master’s judgment that it is not necessary.</p> <p>5. In an action against a railroad company under the Federal Employers’ Liability Act to recover for the death of plaintiff’s decedent, the case is for the jury where it appeared that deceased was standing between the buffers of two cars cleaning one of them when a train was shuiited against one of the ears causing it to run against the other and crush decedent; that it had been customary for signals to be placed upon the ears which were being cleaned, but such custom had been discontinued under orders of defendant’s foreman; and the evidence was conflicting as to whether it was necessary for the deceased to stand between the buffers in the performance of his duties.</p> <p>6. In such case where it appeared that the cars which caused the accident were engaged in interstate commerce, the court properly charged that the contributory negligence of deceased, if found, would reduce the damages, but would not wholly defeat the action.</p>

<p>Negligence — Master and servant — Punching press — Pall of Wade —Unexplained cause — Burden of proof — Judgment for defendant n. o. v.</p> <p>1. In an action by an employee to recover damages for personal injuries, alleged to have resulted from the negligence of his employer, the burden is upon the plaintiff, not only to prove the accident by a preponderance of 'evidence, but also to prove some specific act of negligence which caused it, and the plaintiff’s case fails if he does not show what, if any, act of negligence resulted in his injury.</p> <p>2. In an action against an electric manufacturing company to recover damages for personal injuries sustained by plaintiff in consequence of the sudden fall of a punching press, whereby three of-plaintiff’s fingers were cut off, the court properly entered judgment for defendant n. o. v. where there was nothing to show what caused the press to fall.</p> <p>3. In such ease it was not material that the person in charge of the press had a general reputation for being careless and of intemperate habits, in the absence of evidence that he was intoxicated or had been drinking on the day of the accident.</p>

<p>Appeal, No. 164, Oct. T., 1916, by plaintiffs, from decree of O. P. Allegheny Co., Jan. T., 1916, No. 403, in equity, refusing an injunction, in case of Oswald H. Werner, Augusta A. Werner, Katie R. Werner, Annie Kreusler and Emma K. Etnier v. The City of Pittsburgh, a Municipal Corporation; Joseph G. Armstrong, Mayor; Robert Swan, Director of the Department of Public Works, and John F. O’Toole, Superintendent of the Bureau of Highways and Sewers. '</p> <p>Bill in equity for an injunction and to compel restoration of sidewalk to original width. Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill. Plaintiffs appealed.</p> <p>Errors assigned were rulings on evidence, conclusions of law, and the decree of the court.</p>

<p>Appeal, No. 174, Oct. T., 1916, by plaintiff, from judgment of O. P. Allegheny Co., Oct. T., 1913, No. 2473, on verdict for defendants in case of City of Pittsburgh v. Henry Ihrig, Police Magistrate, and National Surety Company, Surety.</p> <p>Scire facias sur settlement of account of Henry Ihrig, police magistrate, by E. S. Morrow, city controller. Before Swearingen, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court below charged the jury in part as follows:</p> <p>“You will bear in mind that fraud is never presumed. The burden rests upon him who alleges fraud was committed, and that burden can only be discharged by proof that is clear, precise and indubitable, and can only be established by the testimony of one witness and another witness, or the testimony of a witness and such corroborating circumstances as are equivalent to another witness. So that you see the burden upon the City of Pittsburgh is what I have indicated. It is averred that there was fraud committed on the part of Mr. Ihrig in the obtaining of these audits prior to the last one, and that therefore the city is not bound thereby. As I said to you before, fraud is never presumed; it must be proven. The city must prove to your satisfaction by testimony which is clear, precise and indubitable and by two witnesses, or by one witness and corroborating circumstances equivalent to another, that he did that thing. If the city has proved that, then you can investigate these other matters. If it has not proved that, then you go no further and will return a verdict for the defendants. (3)</p> <p>The defendant presented, among others, a point for charge, which, with the answer thereto, was as follows: “Third. Fraud must be proven by the evidence of two witnesses, or by that of one witness with corroborating circumstances equal to another.</p> <p>“This is affirmed. I have said the same thing to you in the general charge.</p> <p>“Exception allowed and bill sealed.”’ (15)</p> <p>Verdict for defendants and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were (3) charge of the court, and (15) in affirming defendant’s third point.</p>

Appeal, No. 97, Jan. T., 1916, by defendant, from judgment of C. P. Luzerne Co., Nov. T., 1915, No. 592, dismissing exceptions to referee’s report in case of T. F. Penman v. John M. Jones. Assumpsit on agreement to purchase surface of certain coal lands in Lackawanna County. Before Carman, J. The facts appear by the opinion of the Supreme Court. The referee directed judgment to be entered in favor of plaintiff and against the defendant.

<p>Appeal, No. 141, Jan. T., 1916, by plaintiffs from decree of O. P. Crawford Co., May T., 1915, No. 1, dismissing bill in equity for an injunction in case of Township of Vernon and School District of Vernon Township, by its Directors Fred Gloth, William Swaney, Edgar A. Brotvn, Harry Kreiter and Leland J. Culbertson v. United Natural Gas Company, a corporation.</p> <p>Bill in equity for an injunction.' Before Prather, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned, among others, were in dismissing plaintiffs’ exceptions and in dismissing bill of complaint.</p>

<p>Appeal, No. 274, Jan. T., 1916, by defendant, from judgment of Superior Court, Oct. T., 1915, No. 186, affirming judgment of O. T. Philadelphia Co., May Sessions, 1915, No. 583, sustaining conviction on indictment for rape in case of Commonwealth of Pennsylvania v. Benjamin Jester.</p> <p>Appeal from Superior Court.</p> <p>Defendant was indicted for rape.</p> <p>The facts appear by the opinion of the Supreme Court and in Commonwealth v. Jester, 63 Pa. Superior Ct. 291.</p> <p>Verdict of guilty. Defendant was sentenced to imprisonment of not less than two years or more than three years in the Eastern Penitentiary. The Superior Court affirmed the sentence of the Court of Oyer and Terminer. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for a new trial.</p>

<p>Appeal, No. 203, Jan. T., 1916, by plaintiffs, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1911, No. 1683, entering compulsory non-suit in case of William Campbell, in his own right, and William Campbell as Administrator of the Estate of Joanna Campbell, deceased, v. Wells Brothers Company.</p> <p>Trespass for death of plaintiff’s decedent. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The trial judge entered a compulsory nonsuit, which the court in banc subsequently refused to take off. Plaintiffs appealed.</p> <p>Errors assigned, among others, were various rulings on evidence referred to in the opinion of the Supreme Court, and in refusing to take off the nonsuit.</p>

<p>Appeal, No. 216, Jan. T., 1916, by defendant, from judgment of C. P. No. 3, Philadelphia Co., June T., 1915, No. 4198, on verdict for plaintiff in case of Maxwell Hogarth v. Joseph R. Grundy, trading as William H. Grundy & Company.</p> <p>Trespass for personal injuries. Before McMichael, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Yerdict for plaintiff for $2,500 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among, others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Municipalities — Jitneys■—Regulation—Bonds — Requirement of corporate security — Continuing liability of surety — Unreasonable requirements — Act of June 1,1915, P-. L. 685.</p> <p>1. A city has the right to regulate in the interest of public safety, the running of jitneys as well as all other traffic upon the public streets. Regulation is not to be carried to the extent of prohibition. If from the usual manner of operating certain vehicles the public safety is endangered, the right and duty of special regulation is clear.</p> <p>2. An ordinance requiring a bond to secure the payment of such damages as may be sustained for loss of life, or injury to person or property occasioned on the public streets by the negligent operation of jitneys, is a reasonable regulation, provided the bond be not made prohibitive in its nature, either by being made too large ii amount or by being unnecessarily restricted as to the sureties who may sign it.</p> <p>3. A municipality is entitled to require of jitney owners good and sufficient security, but a requirement that the bond must bo furnished by a surety company, and forbidding the deposit of cash, or a certified check or municipal bonds, or the acceptance of individual freeholdersyof unquestioned financial responsibility, is unreasonable and void.</p> <p>4. A provision of an ordinance requiring of jitney owner’s a bond in a penal sum of a given amount, but stipulating that, after the recovery of that amount, the obligors shall continue to be liable for other additional amounts without limit, is unreasonable as requiring the surety to undertake an indefinite and unlimited responsibility.</p> <p>5. Pursuant to the Act of June 1, 1915, P. ’ L. 685, conferring upon cities the .right to regulate the transportation of passengers or property, for pay, by motor vehicles not operated on tracks, a city passed an ordinance providing- for the taking out of a permit and payment of a license fee by jitney owners, and requiring the owner to furnish and keep in full force and effect at all times a bond “to pay all loss or damages that may result to any person from the negligent or reckless operation of, or the defective construction of said jitney automobile, or which may arise from any violation of any provisions of this ordinance or the laws of the State,” and further providing that “Said bond shall be a continuing liability, notwithstanding any recovery thereon.” The ordinance provided that in lieu of the bond the owner might furnish a policy of insurance. The ordinance required the operators of jitneys to carry policemen and firemen free under certain conditions. Certain owners of jitneys filed a bill in equity for an injunction to restrain the enforcement of the ordinance. It appeared that several surety companies refused to insure or bond jitneys under this ordinance, that others would do so only with cash or collateral to the amount of the bond so furnished by the insured; the representative of one company testified that his company wrote jitney insurance. Held, the provisions of the ordinance (1) requiring the operators of jitneys to carry policemen and firemen free under certain conditions;</p> <p>(2) restricting the sureties upon a bond to surety companies; and</p> <p>(3) requiring that the bond should be a continuing liability, notwithstanding recovery thereon, are unreasonable and unenforceable.</p>

<p>Mothers — Pensions—Acts of April 29,1918, P. L. 118, and June 18,1915, P. L. 1088 — Death of husband — Absence for seven years— Presumption.</p> <p>1. The women for whom charitable provision is made under the Act of June 18, 1915, P. L. 1038, amending- the Act of April 29, 1913, P. L. 118, are not, as under the Act of 1913, those whose husbands have abandoned them but those “whose husbands are dead or permanently confined in institutions for the insane”; and the word “dead” as used in such act is to be given its popular, natural' and ordinary meaning, and an award cannot be made upon a presumption of death arising from the absence of the husband for seven years.</p> <p>2. While for most judicial purposes there is a presumption of the death of a person of whom no account can be given at the expiration of seven years from the time he was last known to be living, such presumption is one of fact and may be overcome by legitimate evidence opposed to it, such as proof that the absentee had a motive for his silence, as that he was a fugitive from justice, had absconded from his creditors, had escaped from a place of involuntary detention, or had other reasons for concealing his identity.</p>

<p>Appeal, No. 92, Oct. T., 1916, by defendant, from judgment of C. P. Allegheny Co., July T., 1914, No. 1862, on verdict for plaintiff, in case of Nick A. Mayers v. The Union Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $7,402.50 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were answers to points and instructions to the jury.</p>

<p>Appeal, No. 109, Oct. T., 1916, by defendant, from judgment óf O. P. Allegheny Co., July T., 1914, No. 412, on verdict for plaintiff, in case of Margaret K. Theisen v. Pittsburgh Railways Company, a Corporation.</p> <p>Trespass to recover damages for personal injuries. Before Shafer,-P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $15,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury, in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 165, Oct. T., 1916, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1914, No. 2316, for want of a sufficient affidavit of defense, in case of Gilbert T. Rafferty v. Joseph Klein.</p> <p>Assumpsit on bond.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Haymaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court made absolute plaintiff’s rule for judgment for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Decedents’ estates — Legacies—Charge on land — Statute of limitations — Acts of April 27, 1855, P. L. 868, Sec. 7, and February 26, 1869, P. L. 8■ — Pleading—Practice, C.P.</p> <p>1. If the person claiming payment of a charge upon land is not able to show either a claim or demand of payment made by him on the owner of such real estate, or a payment upon or an acknowledgment of -the existence \of such lien or charge within twenty-one' years from the date.when the same became due and payable, the Act of April 27,1855, P. L. 368, Section 7, relating to the limitation of actions to recover sums of money charged upon or liens against real estate, operates to raise a conclusive presumption of the release or the extinguishment of the demand, and declares that it shall thereafter be irrecoverable.</p> <p>2. To remove the bar of the Act of 1855 demand must be made of, or acknowledgment by, all the owners sought to be affected thereby, in accordance with the Act of February 26,1869, P. L. 3. Declarations by a life tenant can affect only his own interest.</p> <p>3. It is not necessary to plead the Act of 1855.</p> <p>4. A testator made a bequest to a minor in trust and provided that such fund as remained at the time the legatee reached majority should be paid to the legatee in such parts as the trustee might deem necessary. At .the hearing of a petition to charge certain real estate of the decedent with the payment of such legacy, it appeared that the petition was not filed until 28 years after the testator’s death and until 24 years after the petitioner became of age; that the owners of real estate sought to be charged had never acknowledged that the land was subject to such charge, and that no demand had theretofore been made upon them. Held, (1) the legacy became a charge on the land at the time of testator’s death and was presently demandable; (2) petitioner’s claim was barred by the Act of 1855 and the petition should have been dismissed.</p>

<p>Negligence — Railroads—Passengers at platforms — Croivds—Contributory negligence — Death—Rudeness of other passengers.</p> <p>1. It is the duty of a railroad company to furnish a safe and sufficient means of ingress to and egress from its trains and to exercise the strictest vigilance in protecting intending passengers assembled at its stations from liability to injury.</p> <p>2. When a railroad company invites the public to use its facilities to visit parks or places of amusement, it has notice that large crowds are likely to assemble and that proper care must be used in protecting them from injuries arising from such conduct as may reasonably be expected to occur, such as the sudden rush on the part of the crowd to obtain entrance to the cars immediately upon arrival of trains at the station.</p> <p>3. In an action to recover damages for the death of plaintiffs husband, who was struck by a railroad train belonging to defendant company and killed, it appeared that defendant was in the habit of running excursion trains to and from a park; that there was no regular station at the park, but that the train was scheduled to discharge passengers in the morning and receive them in the evening at a certain place near the entrance to the park; that there was no platform at the stopping place, but only a cinder-fill. Deceased and other excursionists had congregated upon the cinder-fill waiting for the train in the evening. The train approached at a high rate of speed, and as the engine passed the excursionists, those in the rear pressed forward and pushed deceased into the moving train, whereby his death resulted. IIeld, not a case of rudeness of other passengers, and questions of negligence and contributory negligence were for jury.</p>

<p>Negligence — Railroads—Railroad crossings — Stop, look and listen —Contributory negligence.</p> <p>Where, in an action to recover damages from a railroad company for personal injuries sustained by plaintiff at a street crossing in a city, in consequence of being struck by a moving car, it appeared from plaintiff’s testimony, on cross-examination, that just as he stepped upon the tracks he saw the front and side of the car nearest him, a moment before receiving his injury and too late to avoid the contact, the conclusion was unavoidable that he failed to take proper precaution for hiá safety, and it was not material that he said in his examination in chief that he stopped, looked and listened immediately before attempting to cross, and the trial judge should have directed a verdict for defendant.</p>

<p>Appeal, No. 180, Jan. T., 1916, by Alexander L. Crawford, from decree of Superior Court, affirming decree of O. C. Philadelphia Co., Jan. T., 1909, No. 285, dismissing exceptions to adjudication, in estate of Alexander L. Crawford, deceased.</p> <p>Appeal from the Superior Court.</p> <p>The facts appear in Crawford’s Est., 62 Pa. Superior Ct. 329, and in the opinion of the Supreme Court.</p> <p>The Superior Court affirmed the decree of the Orphans’ Court. Alexander L. Crawford appealed.</p> <p>Error assigned was the decree of the Superior Court.</p>

<p>Negligence — Master and servant — Safe place to work — Bark aisle —Broken- glass — Case for jury.</p> <p>In an action by an employee to recover damages from his employer for injuries sustained in consequence of coming in contact with broken glass in a dark aisle in defendant’s establishment, the ease is for the jury and a verdict for the plaintiff will be sustained where it appears that plaintiff was compelled to go through the aisle in obedience to an order of his foreman, who had placed the glass in the aisle without plaintiff’s knowledge.</p>

<p>Appeal, No. 201, Jan. T., 1916, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., June T., 1915, No. 2019, on verdict for defendant in case of Houston County Oil Mill and Manufacturing-Company v. Edward J. Dumee, trading as Dumee, Son and Company.</p> <p>Assumpsit on award of arbitrators. Before Martin, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for defendant by direction of the court, and judgment thereon. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing plaintiff’s motion for judgment n. o. v.</p>

Appeal, No. 206, Jan. T., 1916, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1914, No. 5454, on case stated in Commonwealth of Pennsylvania v. Crew Levick Co. Appeal from assessment of mercantile appraisers.

<p>Public Service Commission — Appeals—Review by Superior Court —Act of July 26,1918, P. L. 1874 — Act of June 8, 1915, P. L. 779.</p> <p>1. Under the Public Service Commission Act of July 26, 1913, P. L. 1374, as amended by the Act of June 3, 1915, P. t. 779, the Superior Court is not required on appeal to fix and determine for itself the rate, charge, etc., that a public service company may exact. The inquiry on appeal is limited to the question as to .•whether the order appealed from as shown by the record and certified by the commission, is reasonable and in conformity with law.</p> <p>Water companies — Bates—Boroughs—Public Service Commission.</p> <p>2. Where the ordinance of a borough grants to a water company a franchise to lay and maintain water pipe lines “for a period of ten years or until such time as said works may be purchased by said borough,” the duration of the franchise is uncertain and indeterminate'as to time. The acceptance by a company of such an ordinance will not estop it from advancing its rates within the period of ten years if it appear such advance does not amount to more than a reasonable rate: Turtle Creek Borough v. Penna. Water Co., 243 Pa. 415; Bellevue Borough v. Ohio Valley Water Co., 245 Pa. 114, followed.</p> <p>3. An order of the public service commission refusing to disapprove of rates to consumers imposed by a water company, will not be reversed by the Supreme Court on appeal where it appears that a large amount of testimony was taken, much of it of an expert character, that the report of the commission showed a careful consideration of the question, and that the conclusions reached by the commission were supported by the preponderance of the evidence produced. In such a case where a complaint is made in the petition that the supply of water is inadequate, and that the water was not of the quality required by the ordinance, the commission in dismissing the complaint as to the rates may retain the petition pending the completion of tests directed to be made to determine the question of the adequacy of the water supply and pending a direction requiring the company to take the necessary steps to prevent further pollution of the water.</p>

Appeal, No. 226, Jan. T., 1916, by Ralph C. Stewart, Trustee, from decree of O. C. Philadelphia Co., Oct. T., 1913, No. 277, dismissing exceptions to adjudication of third .account in the Estate of Henry A. Borell, deceased. Exceptions to adjudication. The pertinent facts appear in the adjudication of Gummey, J., which was in part as follows: Henry A. Borell died April 13, 1913, leaving his last will and codicil thereto, duly probated.

<p>Criminal law — Murder—Instructions.</p> <p>Where in a murder case the jury has been distinctly and properly instructed in a general charge as to what constitutes murder of the first degree, murder of the second degree and voluntary manslaughter and twice told that the duty was upon them of fixing the degree of the prisoner’s guilt, if they should convict'him, and in answer to points these instructions are repeated and nothing is to be found in any portion of the charge from which the jury could have inferred that the law’s presumption was that the prisoner’s guilt was that of first degree, a verdict of guilty of first degree murder was not disturbed.</p>

<p>Constitutional law — Constitution of Pennsylvania, Article III, Section 7 — Local and special legislation — Counties—Population— Act of May 5, 1915, P. L.</p> <p>1. Classification is allowed because of necessity, a necessity defined as springing from the manifest peculiarities clearly distinguishing those of one^lass from each of the other classes and imperatively demanding legislation for such class separately that would be useless and detrimental to the other.</p> <p>2. Except as classification in any case upon which legislation is based is found to be a proper exercise of legislative power, it necessarily results that any legislation affecting a particular class thus created, and no other, is transgressive of the provisions of the Constitution prohibiting local and special legislation.</p> <p>3. The Act of Nay 5, 1915, P. L. 244, requiring counties now or hereafter containing a population of not less than 750,000 and not more than 1,200,000 inhabitants to establish and maintain schools for the care of certain female children, could presently under its provisions apply only to Allegheny County whereas Philadelphia County would be permanently excluded. It is, therefore, a local and special law regulating the affairs of counties in violation of Article III, Section 7 of the Constitution of Pennsylvania and is void.</p> <p>Mr. Justice Erazer dissents.</p>

<p>Appeal, No. 348, Jan. T., 1916, by Louis F. Moritz, from order of Q. S., Luzerne Co., November Sess., 1915, No. 324, on petition for an election contest, In re Contested Election of Louis F. Moritz to the Office of Township Commissioner in and for the Tenth Election District of Plains Township.</p> <p>Petition for an election contest. Before Strauss, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted the petition and found that Stephan Tkach was elected to the office of township commissioner for the tenth elective district of Plains Township and directed that he exercise the duties of his office and that Louis F. Moritz should no longer exercise them. Louis F. Moritz appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>Jurisdiction> C. P. — Mandamus—Corporations — Officers — Removal.</p> <p>1. Where an officer of a corporation, who was lawfully elected to his seat, has been removed he may maintain a proceeding in mandamus to prevent his further unlawful exclusion from such office.</p> <p>2. A motion to quash a writ of alternative mandamus, which calls attention to defects in substance in the petition, is in effect an application to the court to reconsider its conclusion that the substance of a cause has been shown. The lower court has power to qntertain such a motion and to quash the writ if the substance of a case has not been shown.</p> <p>Corporations — Ministerial officers — President—Directors — Removal of president — Legality of directors’ action.</p> <p>3. Ministerial officers of a corporation, who are not elected by the corporation at large for stated terms, but who are appointed by the board of directors, have no franchise in their office and are re-' movable at the pleasure of the directors without the assignment of any cause, without the giving of any notice, and without trial or investigation into the grounds of removal.</p> <p>4. In mandamus proceedings to eomuel the reinstatement of the president of a corporation, who alleged that he had been unlawfully ousted from office, it appeared that a by-law of the corporation provided that “Any officer may be removed at any regular meeting of the board of directors, provided there be a majority of the total membership of the board in favor of such removal”; and that at a regular meeting of the board the president had been removed by a majority of the directors. Plaintiff contended that his removal was unlawful. The lower court awarded a writ of alternative mandamus. Held, the court properly quashed the writ upon motion of respondent.</p>

<p>Appeals, Nos. 101 and 102, Jan. T., 1916, by plaintiffs, from judgments of C. P. No. 5, Philadelphia Co., March T., 1914, Nos. 1225 and 1226, on verdicts for defendant, in cases of Thomas, Roberts, Stevenson Company and Abram Cox Stove Company v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for the destruction of plaintiffs’ property by fire. Before Ralston, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdicts for defendant and judgments thereon. Plaintiffs appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Negligence — -Master and servant — Instructions—Danger not obvious — Defective appliances — Customary devices — Case for jury.</p> <p>1. Where in an action to recover damages for injuries to plaintiff’s eye resulting from the explosion of a metal ball which plaintiff was endeavoring to test with compressed air, it appeared that the method employed was to attach the ball to an air pressure pipe for the introduction of compressed air; that plaintiff had been given no instructions as to the proper and safe way to make such tests; that the pipe to which plaintiff attached the ball had no reducing valve to reduce or control the pressure of the air, although such device was customarily used in establishments such as defendant’s, and that the accident was caused by the excessively high pressure of the air, the danger of which was not obvious, the ease was properly submitted to the jury and a judgment on a verdict for plaintiff was sustained.</p> <p>Practice, Supreme Court — Assignments of error.</p> <p>2. Assignments of error which fail to state the page where the matter referred to is to be found in the paper book or appendix are defective.</p>

Appeal, No. 128, Jan. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1915, No. 4607, on verdict for plaintiff, in case of Francis H. Chance v. Philadelphia Ship Repair Company. Trespass to recover damages for personal injuries. Before Barratt, P. J, The opinion of the Supreme Court states the facts. Verdict for plaintiff for $3,500 and judgment thereon. Defendant appealed.

Appeal, No. 117, Jan. T., 1916, by plaintiff, from order of C. P. No. 2, Philadelphia Co., March T., 1916, No. 919, discharging rule to show cause why goods replevied should not be impounded, in case of Jacob H. Lynn v. Alberta H. Lynn. Replevin to recover household goods. Rule to show cause why goods replevied should not be impounded by the court under the Act of April 14, 1905, P. L. 163. Before Rogers, J. The opinion of the Supreme Court states the facts.

<p>Negligence- — Street railway companies — Pedestrians — Death — Proximate cause — Nonsuit.</p> <p>1. In actions to recover damages for injuries or death alleged to have resulted from negligence the burden .is on plaintiff to show that defendant’s negligent act was the sole and proximate cause of the death or injury, to tho exclusion of other causes; it.is not enough to show a state of facts from which it appears that the injury may have been due to one or more causes, not involving defendant’s negligence.</p> <p>2. Where in an action to recover damages for the death of plaintiff’s wife, alleged to have been caused by her- being struck by a trolley car, it appeared that on the evening of the accident a trolley car was crossing an intersecting street when a thud was felt and an object afterwards found to be a basket was seen flying, that considerable quantities of dust were raised, and that thereafter deceased was found lying at the side of the track near the intersection of the street, but where there was no evidence to show that deceased was endeavoring to cross the track at the time of the accident and no evidence to show that the death of deceased was caused by the trolley car, the trial judge properly- entered a compulsory nonsuit.</p>

<p>Evidence — Documents—Signature—Forgery — Comparison with admittedly genuine writings.</p> <p>1. Where the genuineness of handwriting is in dispute the jury-are entitled to compare the disputed paper with admittedly genuine writings.</p> <p>Wills — Date of execution — Presumption.</p> <p>2. There is a presumption of fact that a will was executed on the day it bears date. If, however, there is evidence that the will could not have been executed on the date stated therein, but there is competent evidence that it is in the handwriting of the person with whose name it is signed, a verdict upholding the will, will be sustained even though the date was an error.</p> <p>3. At the trial of a feigned issue to determine the validity of a will dated April 6, 1898, the contestant alleged that the will was a forgery; there was evidence that the will was in the handwriting of the testator; one of the witnesses thereto stated that he saw the testator sign the paper and testified that it was not signed upon its date; the trial judge instructed the’ jury that they must find not only that testator wrote and signed the paper in question but that he did so on April 6, 1898, or else their verdict must be for the contestants, unless the testimony of such witness satisfied them that it was not signed on that date. Held, that the question for the jury was whether the paper purporting to be the testator’s will was written and signed by him or was a forgery; that the jury were not bound by the date of the will, and a judgment on a verdict for contestant was reversed.</p> <p>4. Semble, it is not reversible error in a contested will case to charge the jury that “there is a legal presumption in the absence of proof to the contrary that a man would take care of his wife and family in his will.”</p> <p>Witnesses — Handwriting experts — Competency—Act of June 6, 1918, P. L. 451.</p> <p>5. A witness who testified that he had been cashier of a bank for five years and paying teller thirteen years, that he was familiar with the signatures of persons, and during that time had passed several thousand signatures, is competent under the Act of May 15, 1895, P. L. 69, as amended by the Act of June 6, 1913, P. L. 451, to compare the signature of the disputed will with the admittedly genuine signatures of the decedent, and to state his opinion as to whether or not the signature to the will was the signature of the decedent, and it is not material that the witness disclaimed being a handwriting expert.</p> <p>6. The court did not err in permitting a witness, who testified that for more than twelve years he had been an accountant and assistant secretary of a club, and that his duties required him to pass upon and compare signatures, to compare admittedly genuine signatures of testator upon bank checks with the signature to the will.</p>

<p>Actions■ — Former actions — Bes adjudicaia — Equity—Scire facias.</p> <p>1. A judgment of a court of competent jurisdiction upon tbe merits of a question litigated between tbe parties is conclusive in any subsequent controversy directly involving tbe same question and is a defense in any further litigation of the same matter between the same parties. The doctrine of res adjudicata is based upon the principle that there should be an end of litigation and that a cause of action once adjudicated between the parties shall protect the successful party against further vexation in regard to it.</p> <p>2. In a suit in equity to enjoin defendant from obstructing or interfering with the use by plaintiff or the public of an alleged alley, which plaintiff averred was a public alley, where it appeared that the land had been sold to defendant’s predecessor in title in proceedings on a scire facias sur a municipal lien, and that in a subsequent action of ejectment between the same parties or those in privity with them the title had been found to be in defendant, the court properly dismissed the bill, and it was not material that every question sought to be raised by the bill in equity had not been raised in the prior action, where it appeared that such questions could have been raised and decided had the parties so desired.</p>

<p>Appeal, No. 250, Jan. T., 1916, by McCanna and Fraser Company, Incorporated, from decree of C. P. No. 2, Philadelphia Co., Sept. T., 1911, No. 2397, dismissing exceptions to report of Auditor, in case of Andrew Forbes, Trading as Andrew Forbes and Company, to use of William Manger, v. Frank Evans, trading as Continental Hotel, McCanna and Fraser Company, Incorporated.</p> <p>Rule to show cause why proceeds of a sheriff’s sale should not be paid into court.</p> <p>Exceptions to report of Murdock Kendrich, Esq., auditor. Before *Rogers, J.</p> <p>The auditor’s report was, in part, as follows:</p> <p>FINDINGS OF FACT.</p> <p>1. On April 28, 1915, the sheriff levied upon all of the wines and liquors of the Continental Hotel, at Ninth and Chestnut streets, Philadelphia, under a writ of fieri facias on a judgment for $3,147.55 in the case of Andrew Forbes v. Frank Evans, trading as Continental Hotel, C. P. 2, September Term, 1914, No. 2897.</p> <p>2. On May 17, 1915, the sheriff levied upon the same goods under a writ of fieri facias issued in the case of McCanna & Fraser Company v. Continental Hotel Company, Inc., C. P. 2, September Term, 1913, No. 3644, upon a judgment for $2,734.88.</p> <p>3. On June 15, 1915, the goods levied upon under the above-mentioned writs were sold for $2,155.60.</p> <p>4. The sheriff’s return to the Forbes execution is as follows:</p> <p>“Levied April 28,1915, upon the goods and chattels of the within-named defendant and afterwards, to wit, June 15, 1915, I sold the same for the sum of $2,155.60.”</p> <p>The sheriff’s return to the McCanna & Fraser Company execution is as follows:</p> <p>“Levied May 17$ 1915, upon the goods and chattels of the within-named defendant company, and afterwards, to wit, June 15, 1915, I sold the same for the sum of $2,155.60, subject to a prior writ of fi. fa. issued out of C. P. No. 2, Sept. Term, 1914, No. 2897.”</p> <p>5. The Forbes judgment is for the beer sold and delivered to the defendant, Frank Evans, from May 1,1913, to January 31, 1914.</p> <p>6. At the time of the sale and delivery of the beer described in the statement of demand in the Forbes suit, Frank Evans was the licensee of the bar of the Continental Hotel, and the said beer was delivered to the said Frank Evans as such licensee.</p> <p>7. At the time of the levy under the Forbes judgment, Frank Evans was the licensee of the said bar and the lessee of tbe premises on wbicb the said bar was located under a lease from the Bell Hotel Corporation, dated January 30, 1914.</p> <p>8. No evidence whatever has been introduced tending to show that at the time of either levy in this case, the goods levied upon were the property of the Continental Hotel Company, incorporated, beyond the return of the sheriff in the MaCanna & Fraser writ that they were levied upon as the property of the defendant in the said writ.</p> <p>CONCLUSIONS OF LAW.</p> <p>1. That the return on neither writ is conclusive as against the other, but only raises a prima facie presumption which may be overcome by evidence.</p> <p>2. That it is the duty of the auditor to ascertain the title to the property from the sale of which the fund to be distributed was realized.</p> <p>3. In a proceeding to distribute a fund paid into court by the sheriff, no one can participate whose claim depends upon sustaining a title adverse to the judgment debtor.</p> <p>4. Where two returns of the sheriff are contradictory, or adverse, the first return is presumed to be correct unless overthrown by contradictory evidence.</p> <p>5. Where a sheriff’s returns are contradictory, or show title other than that of the judgment debtor to the goods levied upon in the first writ, the second return is insufficient, and a claimant thereunder cannot participate in the proceeds of a sale under the first writ.</p> <p>6. At the time of the execution of the writs in this case, Frank Evans was in possession of the goods levied upon, and as against the Continental Hotel Company, Incorporated, or its creditors, his possession was a valid, effective possession.</p> <p>7. Frank Evans having been in possession at the time of the levies, he was presumptively the owner of the goods levied upon.</p> <p>8. The goods levied upon having been in the possession of Frank Evans at the time of the levies, they were as to his judgment creditors his goods, subject to levy on execution issued on their judgments.</p> <p>9. The sheriff having seized the goods in the possession of Frank Evans as his property, the burden is on the McCanna & Fraser Company, which seeks to nullify the validity of the Forbes execution, to establish its right to seize the goods as the property of the Continental Hotel Company, Incorporated.</p> <p>10. The money realized at the sheriff’s sales being insufficient to pay the Forbes execution in full, belongs to this execution.</p> <p>11. McCanna & Fraser Company, having given no evidence to sustain its claim, is chargeable with the costs of this proceeding.</p> <p>The court dismissed the exceptions. McCanna and Fraser Company, Incorporated, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p>

<p>Appeal, No. 340, Jan. T., 1916, by plaintiff, from decree of C. P. No. 1, Philadelphia Co., Sept. T., 1913, No. 3168, in equity, dismissing bill for the cancellation of certain agreements in case of George M. Paul v. H. L. Bialy, E. Boyd Weitzel, C. D. Hoffman, A. E. Woodman and Edward P. Gallagher.</p> <p>Bill in equity for the cancellation of certain agreements and for an injunction.</p> <p>From the record it appeared that in the spring of 1912, James M. Taylor was president and George M. Paul, vice-president and treasurer of the Universal Lubricator Company, a corporation, under the laws of the State of Delaware.</p> <p>George M. Paul was the owner of a majority of the stock issued by said corporation.</p> <p>Paul solicited defendants to become connected therewith as officers and directors and give their time and attention to the management thereof upon a promise to compensate them therefor.</p> <p>The defendants agreed to become officers and directors and undertake the management of the company, and Paul placed in the control of three of the defendants for distribution, 873 shares of stock under an agreement, dated the 29th of June, 1912.</p> <p>At the time the defendants became connected with the company, its liabilities exceeded its assets. The company was in debt to one bank more than twenty thousand dollars on notes endorsed by Paul and Taylor, but Paul was unable to take care of this indebtedness. Taylor refused to help and both he and Paul were only liable as accommodation endorsers, which did not lessen the liability of the company.</p> <p>The defendants found it impossible to sell stock for the company on account of its insolvency, and thereupon decided to divide and did divide the said stock among themselves, and devoted their own time and attention to the business and succeeded in keeping it alive and running on a profitable basis and greatly reduced its indebtedness.</p> <p>The agreements between the parties dated June 29, and April 7, 1912, were as follows:</p> <p>This agreement, made the 29th day of June, 1912, by and between George M. Paul, of the first part, and H. L. Bialy, E. Boyd Weitzel and E. P. Gallagher, parties of the second part.</p> <p>Whereas, the said Paul is the owner of fourteen hundred and seventy-three (1,473), or thereabouts, shares of stock of the Universal Lubricator Company, a corporation duly organized under the laws of the State of Delaware, and</p> <p>Whereas the said corporation is largely indebted for materials furnished and on general account, and there is no money in the treasury to meet these obligations, and</p> <p>Whereas the present management is unable to suggest or devise a plan or remedy to restore the credit of the corporation and to meet these financial obligations:</p> <p>Now, therefore, it is agreed between the parties hereto as follows:</p> <p>First — That a certificate of one hundred (100) shares of the stock held by the party of the first part shall be given to E. P. Gallagher in payment of services rendered to the party of the first part.</p> <p>Second — That a certificate for five hundred (500) shares of the said stock shall be made out in the name of George M. Paul, party of the first part.</p> <p>• Third — That the balance of the said stock, to wit, about eight hundred and seventy-three (873) shares, will be given to the parties of the second part absolutely, for their use to do and distribute as they see fit and think wise in the management and upbuilding of the business of the said corporation.</p> <p>That the parties of the second part on their behalf agree to give their time, energy and ability to the up-building of the business and- credit of the said corporation, and to solicit capital for the payment of the debts, and to establish a fund for the general management of the business.</p> <p>In witness whereof the parties hereto have hereunto set their hands and seals the day and year above written.</p> <p>Geo. M. Paul,</p> <p>H. L. Bialy,</p> <p>E. Boyd Weitzel,</p> <p>E. P. Gallagher.</p> <p>Witnesses:</p> <p>C. D. Hoffman,</p> <p>H. E. Woodman.</p> <p>This agreement, made this seventh day of April, A. D. 1913, by and between George M. Paul, H. L. Bialy, E. Boyd Weitzel, A. E. Woodman and O. D. Hoffman, of the City of Philadelphia, parties of the first part, and H. L. Bialy, E. Boyd Weitzel and C. D. Hoffman, of the City of Philadelphia, parties of the second part, hereinafter called “Trustees.”</p> <p>Whereas the parties of the first part hereto are holders of the majority of the stock issued and outstanding of the Universal Lubricator Company, a corporation organized under the laws of the State of Delaware;</p> <p>And whereas it appears that the interests of the parties of the first part, as well as the interest of the said, company itself, would be best sérved by a continuation of the business policy inaugurated by the officers and directors now in control of the affairs of said company, who have within the past nine months succeeded in rehabilitating, to a large extent, the financial condition of said company.</p> <p>Now, therefore, in consideration of the above premises and in pursuance and in furtherance of the same, it is hereby mutually agreed between the parties hereto as follows:</p> <p>1. That all the certificates of stock held by the said parties of the first part shall be delivered and issued to H. L. Bialy, E. Boyd Weitzel and C. D. Hoffman, trustees, parties of the second part, in trust to hold the legal title of said shares of stock, including the sole right to vote the same at all meetings of said company for the spa.ce of five years from the date thereof or until a dividend is declared on the stock of said company, if the latter event shall sooner occur.</p> <p>2. The said trustees are to use the voting power of said stock, according to their best judgment, for the best interest and advancement of the business of the said company and for the benefit of the several stockholders.</p> <p>3. The said trustees shall have the right at any time within the said space of five years or until the declaration of a dividend on the stock of said company, if such an event shall sooner occur, to purchase the stock of any contracting party who does not desire to continue the trust relation at ten per cent, advance of par value of the same for the use and benefit of the remaining parties.</p> <p>4. The said trustees may from time to time agree to issue or have issued to the real owners of the stock a certificate for all or any part thereof, but before any said certificates shall be issued, and delivered, it shall be marked upon its face as follows: “The certificate is issued, received and held pursuant and subject to, and the holder by accepting the same assents to all the terms and conditions of a certain agreement dated April 7, 1913, by and between George M. Paul et al. and H. L. Bialy et al., trustees.”</p> <p>In witness whereof the parties hereto have hereunto set their hands and seals the day and year above written.</p> <p>Geo. M. Paul,</p> <p>H. L. Bialy,</p> <p>E. Boyd Weitzel,</p> <p>A. E. Woodman,</p> <p>C. D. Hoffman.</p> <p>Patterson, J., filed, inter alia, the following conclusions of law:</p> <p>1. The agreements of June 29,1912, and April 7,1913, were not obtained by fraud or misrepresentation but were signed by complainant after a full disclosure, and of his own free will.</p> <p>2. The respondents did not conspire or deliberately plan to obtain a majority of the complainant’s stock and control of the company by fraud.</p> <p>3. The respondents have not neglected or injured the business of the Universal Lubricator Company.</p> <p>The court on final hearing refused to direct the cancellation of the agreements. Plaintiff appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of fact and conclusions of law and the decree of the court.</p>

<p>Negligence — Street railways — Horse and wagon — Bight angle collision — Contributory negligence — Judgment for defendant n. o. v.</p> <p>In an action against a street railway company to recover damages for the death of plaintiff’s husband caused by a right angle collision between a wagon driven by the deceased and one of defendant’s cars, judgment was properly entered for defendant n. o. v., where it appeared that if deceased had looked before attempting to cross the track he would have seen the car coming rapidly towards him and so close that he could not have crossed in safety.</p>

Appeal, No. 331, Jan. T., 1916, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., Dec. T., 1912, No. 5505, on bill in equity for the dissolution of a partnership in case of Patrick Clearkin v. Dominick Taheny. Bill in equity for the dissolution of partnership and for an accounting.

<p>Decedents’ estates — Election to tafite against will — Forfeiture of right to elect — Adultery■—Insufficient evidence.</p> <p>Where a widow elected to take against the will of her deceased husband and other parties interested iirthe estate resisted her claim, alleging that she had by adulterous conduct forfeited her right to take against the will, but where the evidence of such improper conduct was entirely insufficient to warrant a finding that it had existed, the claim was properly allowed.</p>

<p>Appeal, No. 6, Jan. T., 1917, by defendant, from judgment and sentence of O. T. Luzerne Co., July Sessions, 1916, No. 239, in case of Commonwealth v. John Staush.</p> <p>Indictment for murder.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court found defendant guilty of murder of the first degree and imposed sentence of death. Defendant appealed.</p> <p>Errors assigned, among others, were the participation in the deliberations of the court of the president judge, who did not hear the testimony of witnesses, the subsequent writing of the opinion by such president judge finding defendant guilty of murder of the first degree, and the pronouncing of the sentence of death by him.</p>