Volume 257 — Pennsylvania State Reports

<p>Appeal, No. 334, Jan. T., 1916, by plaintiffs, from decree of C. P. No. 1, Philadelphia Co., Dec. T., 1915, No. 1671, dismissing bill in equity for an injunction in case of W. Herman Thoenebe, John A. Gill and Arthur F. Schneider v. Jerome Mosby and John Foreman, trading as Mosby and Foreman, and Joseph M. Thomas, trading as Charles J. Thomas Sons.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear in the following opinion by Bregy, P. J.:</p> <p>This is a bill alleging that the defendants are main,' taining a nuisance at the hall, 1512 to 1520 North Thirteenth street.</p> <p>1st. The plaintiffs reside on Thirteenth street between Jefferson and Oxford streets.</p> <p>2d. The defendants, Mosby and Foreman, are lessees of a hall on Thirteenth street between Jefferson and Oxford streets, where they have a dancing school. The defendant Thomas is the owner of the building.</p> <p>3d. On Monday, Thursday and Saturday nights Mosby and Foreman, who rent the hall on the third floor of the stable building known as Thomas’ stable, have dancing-parties that begin at nine o’clock and continue till twelve o’clock. On Wednesday night they teach dancing from 8: 30 o’clock to 10:45 o’clock. On Tuesday and Friday nights the hall is not occupied by the dancing school in any way, but the lessees sublet it (with the consent of the owner, Mr. Thomas) for concerts, balls, and so on as they can obtain a tenant. During the fifteen months the defendants have occupied the hall they have rented it for the above purposes fourteen times.</p> <p>■ 4th. On Monday, Thursday and Saturday nights, the music for the dancing parties begins at 9 o’clock and continues till 11: 50, when it stops and the patrons leave— the hall being emptied by 12 o’clock. On Wednesday night, the teaching- night, the school begins at 8:30 and closes at 10: 45. On the occasions that the hall has been rented out for different entertainments, they have occupied the hall till 2 o’clock a. m.</p> <p>5th. The music at the dancing parties consists of five pieces, viz: Piano, violin, cornet, trombone and trap drum. On Wednesday nights the music is by the piano only. The same five pieces play at the balls or entertainments when the place is rented.</p> <p>6th. When the music continues after 11 o’clock it is muffled to subdue its noise, and so continues till the audience leaves.</p> <p>7th. The hall here alluded to is on the third floor of a large public stable building that has been so occupied for over forty years. During the many years of the existence of this stable it has been occupied as such, both for the stabling of private teams and the hiring of horses and carriages to the public. The hall on the third floor' has for over thirty years been rented out as a dancing-school, for parties, concerts and for different kinds of public meeting's, political and otherwise.</p> <p>8th. The neighborhood is no longer a strictly residential one. This one square on Thirteenth street bétween Jefferson and Oxford has in addition to the large stable already mentioned quite a number of business places. From the north side of Jefferson street to the south side of Oxford street, there is on one side a large furniture manufactory, a barber shop, a store, a tailor shop, a china.decorating store and an empty store at the corner; on the other side there is a saloon, tailor shop, a Avail paper establishment, a butcher shop and other stores. On the south side of Jefferson street at Thirteenth street there is a grocery store at one corner and a drug store at the other; and on the north side of Oxford, a grocery store at one corner and an insurance office at the other. .</p> <p>9th. The persons attending the dances and entertainments heretofore spoken of have behaved themselves in a proper way in the hall, and no misbehavior there has been proved or, in fact, alleged against them.</p> <p>10th. The patrons of the hall are colored people.</p> <p>11th. When the audience disperses there is on the street the noises of these persons talking to each other, saying good-bye and the calling to a friend to wait, etc., etc.</p> <p>12th. At the dancing parties the attendance is from eighty to one hundred; at the times the hall is rented sometimes there are as many as four hundred there.</p> <p>13th. The occupants of four houses on Thirteenth street complain that they are annoyed by the music in the hall and by the noise in the street when the patrons leave. Very many more say they are not annoyed and kave no complaint to make.</p> <p>14th. Within the last few years the immediate neighborhood bnt not this street has become tenanted by a large number of colored people.</p> <p>CONCLUSIONS OP LAW.</p> <p>The plaintiffs seek to have the defendants close the hall at about 10 o’clock, complaining that the continuation of the music after that hour and the dispersal of the audience and its attendant noise are a nuisance that annoys them.</p> <p>The complaint raises the question as to what hour a dancing school, party, concert or ball should close its doors. The answer must depend upon the neighborhood, and the facts of each particular case, as there can be no general rule on the subject.</p> <p>Considering the fact that I have found this not to- be a strictly residential neighborhood, but one that has changed into a partly business one, I do not consider it unreasonable to keep open the dancing school till 12 o’clock. The hours of entertainment are not what they used to be. Everything is later, and, as times change, we must change our habits with them. Everything has been done by the proprietors of the school to lessen the sound of the music after 11 o’clock, and I see no reason to interfere with the dancing school.</p> <p>As to the parties or balls that are held on other evenings, while not very many in number, another question presents itself. Considering the neighborhood and the admitted fact that on an average of once a month an entertainment of some kind is given which continues till two o’clock in the morning, is it proper to issue an injunction?</p> <p>This question is not without difficulty. That it is an annoyance to the plaintiffs to have their sleep broken by these gatherings is undoubtedly true. Those who live in cities must take what goes with it, however. Those who live in business neighborhoods cannot expect or demand the quiet of the suburbs.</p> <p>As the neighborhood changes they must take the consequences. If it changes for the worse and personal discomfort follows, that must be submitted to. The running of street cars and the noise of the automobiles all night long are among the few annoyances that all sections of the city are now subjected to, but would some years ago have been considered a nuisance.</p> <p>Applying the principle that an injunction should not issue in doubtful cases, I would not issue one here.</p> <p>There remains only the other question, viz: Can the bill prevail because of the noise in the street after the entertainments are dismissed?</p> <p>As I have found that the defendants’ entertainments bring together an assemblage of respectable, well-behaved people, and that the noises in the street are not of a kind that are induced by or encouraged by the defendants’ parties, I see no reason for a Court of Equity to act. This is a matter for the police to see to. We would not hesitate to enjoin the gathering of disorderly, dissolute, drunken or depraved persons, whose coming together must necessarily annoy the residents of nearby houses, but the saying of parting words by respectable people and the calling to friends as they leave the hall, is a matter for the police to regulate, rather than for a court to dispose of by injunction.</p> <p>The court dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned, inter alia, was the decree of the court.</p>

<p>Appeal, No. 10, Oct. T., 1916, by defendants, from decree of C. P. Allegheny Co., July T., 1913, No. 2368, in equity, awarding an injunction in case of Eleanor Walker Allen v. John Scbeib, Sr., and John G-. Scbeib.</p> <p>Bill in equity for an injunction. Before Carpenter, J.</p> <p>Tbe opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe court on final bearing awarded an injunction restraining defendants from interfering in any manner with tbe free use and proper maintenance of tbe road by plaintiff and from interfering in any manner with Sebastian Mueller in constructing and maintaining a gas line along tbe private road described in tbe plaintiff’s bill. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law and tbe decree of tbe court.</p> <p>— Tbe plaintiff bas no right to use this strip of land other than as a roadway: Moffitt v. Lytle, 165 Pa. 173.</p> <p>Ejectment was tbe proper remedy in this case: Mirkil v. Morgan et al., 134 Pa. 144; Barclay’s Appeal, 93 Pa. 50; North Shore R. R. Co. v. Penna. Co., Lessee of and operating Pittsburgh, Ft. Wayne & Chicago Ry. Co., 193 Pa. 641; Penna. Canal Co. v. Middletown & Harrisburg Turnpike Co., 1 Pa. D. R. 663; City of New Castle v. Raney (McClain’s App.) 130 Pa. 546; Coward v. Llewellyn, 209 Pa. 582.</p> <p>Tbe defendants have a fee simple title to tbe land covered by tbe road: Newall v. Ireson et al., 62 Mass. 595; Morgan v. Livingston et al., 6 Martin, La. (O. S.) 19; Kreiter v. Bigler, 101 Pa. 94; Paul v. Carver, 24 Pa. 207; Witter v. Harvey, 10 Am. Dec. 650.</p>

<p>Negligence — Master and servant — Foreman—Helpers—Injuries caused by helper — Care in selection — Presumption.</p> <p>1. The presumption is that an employer has exercised proper care in the selection of employees, and it is incumbent upon one charging negligence in the employment of men to show it by proper evidence.</p> <p>2. The mere relation of master and servant can never imply an obligation upon the part of the master to take more care of the servant than he may reasonably be expected to take of himself.</p> <p>3. In an action of trespass to recover damages for personal injuries, where it appeared that plaintiff had charge of riveting boilers, and that he was supplied by defendant, his employer, with helpers to assist him in the work; that while a boiler was being tilted in the course of the work one of the helpers accidentally let go of the base whereby the boiler fell upon plaintiff, who was standing nearby, severely injuring him, but where there was nothing to show that the helper was incompetent for the work for which he was employed, and where it further appeared that plaintiff was supervising the work and should have given any instructions or warning needed to aid the helper in the discharge of his simple duties, there was no evidence of negligence on the part of the defendant, and the court should have directed a verdict in its favor.</p>

<p>Negligence — Automobiles — Evidence — Proof of Ownership — Gase for jury — Referring to previous verdict — Withd/rawal of juror —Discretion of court — Remarks unprejudicial.</p> <p>1. Where in an action against a newspaper company to recover damages for personal injuries sustained by plaintiff in consequence of being struck by a motor truck, alleged to be the property of defendant and to have been employed in its business at the time of the accident, it appeared that the name of defendant was painted upon 'the car, which contained bundles of newspapers, it was not error to permit a policeman to testify that shortly after the time fixed by witnessed to the accident he saw a car of like description delivering bundles of newspapers about four and a half squares from the place of the accident; that he knew the car because he had seen it in the neighborhood on numerous occasions on like errands, and that on the particular occasion the driver had attracted his attention by his seeming hurry in tossing papers from the car.</p> <p>2. Where in Such a case there was evidence that as plaintiff was endeavoring to cross a street at a corner an automobile came out of an intersecting street at a high rate of speed and ran violently into plaintiff, which car was described by witnesses as having defendant’s name printed thereon, the case was properly submitted to the jury.</p> <p>3. Where in such case the plaintiff’s husband while on the stand testified to the effect that he had a conversation with another man on the day “when we were awarded the verdict,” referring to the verdict in a former trial of the same cause, but there was no attempt on the part of the counsel for the plaintiff to obtain an unfair verdict by leading the witness to the objectionable remark, and the judge warned the jurors to disregard the incident, the refusal of a motion for a continuance was within the discretion of the trial judge was_ not prejudicial to defendant, and was not reversible error.</p>

<p>Appeals, Nos. 162 and 163, Jan. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1910, No. 339, on verdicts for plaintiffs, in case of Anna Mulhern, by her father and next friend, William J. Mulhern, and the said William J. Mnlhern, in his own right, v. The Philadelphia Homemade Bread Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, William J. Mulhern, for $200 and for Anna Mulhern for $2,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n. o. v. and in refusing a new trial.</p> <p>— The case should have been withdrawn from the jury as the accident was unavoidable: Chilton v. Central Traction Co., 152 Pa. 425; Funk et al. v. Electric Traction Co., 175 Pa. 559; Fleishman v. Neversink Mountain R. R. Co., 174 Pa. 510; Martin v. Ware, 212 Pa. 83; Leitzel v. Harrisburg Traction Co., 212 Pa. 608; Meloy v. Philadelphia Rapid Transit Co., 217 Pa. 189; Kochesperger v. Philadelphia Rapid Transit Co., 217 Pa. 320.</p> <p>— The case was properly submitted to the jury: Tatarewicz v. United Traction Co., 220 Pa. 560; Jones v. United Traction Co. (No. 1), 201 Pa. 344; Kroesen v. New Castle Electric St. Ry. Co., 198 Pa. 26.</p>

<p>Appeal, No. 170, Jan. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1914, No. 268, on verdict for plaintiffs, in case of Elizabeth Scott, Administratrix of the Estate of Joseph P. Scott, deceased, and Elizabeth Scott, Administratrix of Edward A. Scott, deceased, v. American Express Company, a corporation.</p> <p>Trespass to recover damages for personal injuries. Before Babbatt, P. J.</p> <p>Plaintiff’s injuries consisted of compound fractures of both legs above the knees, lacerations and bruises of the scalp, arms and back. Two unsuccessful operations were performed to secure unions of the fractures of the legs. Plaintiff suffered extreme pain except when under the influence of opiates, and died as a result of such injuries over four months after the accident.</p> <p>Further facts appear in the opinion of the Supreme Court.</p> <p>Verdict for plaintiff as administratrix of the father’s estate for $1,717, and as administratrix of the son’s estate for $12,540 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and in refusing a new trial.</p> <p>— -The cross-examination of the witness Julier for the purpose of affecting his credibility was reversible error: Jackson v. Litch, 62 Pa. 451; Thomas & Sons v. Loose, Seaman & Co., 114 Pa. 35; Charles Warner Co. v. Exeter Mach. Works, 58 Pa. Superior Ct. 477; American Steamship Co. of Philadelphia v. Landreth, 102 Pa. 131; Brigham v. Fayerweather, 140 Mass. 411 (5 N. E. Repr. 265); Com. v. Hawkins, 69 Mass. 463; Dickerson v. Dickerson, 50 Mich. 37 (14 N. W. Repr. 691); Huebner v. Roosevelt, 7 Daly (N. Y.) 111; Ranken v. Donovan, 115 N. Y. App. Div. 651 (100 N. Y. Supp. 1049).</p> <p>A prior opinion of Julier that Carey was sober could not be used to impeach his testimony as to the fact that his breath smelled of liquor: Holmer v. Anderson, 18 Barb. (N. Y.) 420; Sloan v. Edwards, 61 Md. 89; Central Ry. Co. v. Allmon, 147 Ill. 471 (35 N. E. Repr. 725); McFadin v. Catron, 120 Mo. 252 (25 S. W. Repr. 506).</p> <p>— The cross-examination of the witness Julier was proper: Huoncker v. Merkey, 102 Pa. 462; Monongahela Water Co. v. Stewartson, 95 Pa. 436; Allen v. Line, 11 Pa. Superior Ct. 517; Travis v. Brown, 43 Pa. 9; Commonwealth v. Mosier, 135 Pa. 221.</p>

<p>Appeal, No. 266, Jan. T., 1916, by Henry K. Fox, Executor of the Estate of Elizabeth M. Lassalle, deceased, from decree of C. P. No. 4, Philadelphia Co., March T., 1887, No. 729, dismissing exceptions to' report of auditor, in re Assigned Estate of James Hunter and John Hunter, Individually and as Copartners.</p> <p>Exceptions to report of Charles H. Mathews, Esq., auditor. Before Audenried, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Henry K. Fox, executor of the estate of Elizabeth M. Lassalle, deceased, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p> <p>cited: Taylor’s Executors v. Maris, 5 Rawle 50; McIlvain v. Mutual Assurance Co., 93 Pa. 30; Schrack v. Shriner, 100 Pa. 451; Hart v. Anderson, 198 Pa. 558; Wilbur’s Appeal, 10 W. N. C. 133; Horning’s Executors’ App., 90 Pa. 388; Turner v. Flennicken, 164 Pa. 469; Snyder v. Crawford, 98 Pa. 414.</p>

<p>Appeal, No. 243, Jan. T., 1916, by plaintiffs, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1915, No. 914, entering compulsory non-suit in case of Paul Kuehne, Jr., by his Next Friend and Father, Paul Kuehne and Paul Kuehne, in his Own Right, v. George H. Brown.</p> <p>Trespass for personal injuries to five-year-old child. Before Davis, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>On the trial the court entered a compulsory nonsuit as to both plaintiffs, which it- subsequently refused to take off. Plaintiffs appealed.</p> <p>Error assigned, among others, was in refusing to take off the nonsuit.</p> <p>— The question whether defendant was guilty of negligence was for the jury: Bloom v. Whelan, 56 Pa. Superior Ct. 277; Drenberg v. Mahoning & Shenango Ry. & Light Co., 55 Pa. Superior Ct. 218; Tate v. Philadelphia Rapid Transit Co., 244 Pa. 74; Tarhayi v. Allegheny Valley Street Ry. Co., 243 Pa. 351; Myers v. Pittsburgh Rys. Co., 242 Pa. 502; Buck v. McKeesport, 227 Pa. 10; Boggs v. Pittsburgh, McKeesport & Greensburg Ry. Co., 216 Pa. 314; Carlin v. William Butler Co., 220 Pa. 194; Kohler v. Penna. R. R. Co., 135 Pa. 346; Lorah v. Rinehart, 243 Pa. 231. The distance an automobile travels after it strikes a pedestrian is evidence of negligence and evidence of speed: Michalsky v. Putney, 51 Pa. Superior Ct. 163.</p>

<p>Negligence — Automobiles—Sired car and chauffeur — Manifest negligence of chauffeur — Failure of passengers bo object — Collision —Wagon—Absence of lights — Rule of road — Proximate cause — • Contributory negligence — Charge—Case for jury.</p> <p>1. When possible dangers arising out of the negligent operation of a hired vehicle or conveyance in which one is riding as an invited guest, are manifest to a passenger, who has any adequate opportunity to control the situation, if he sits by without protest and permits himself to be driven on to his injury, he is guilty of negligence which will bar his recovery. While the negligence of the driver is not imputed to the passenger, the latter is fixed with his own negligence when he joins the former in testing manifest dangers.</p> <p>2. Where in actions by a husband and wife to recover for personal injuries sustained in a collision between an express wagon and an automobile which plaintifEs had hired and which was being driven at the time by the owner’s chauffeur, plaintifEs contended that the collision, which occurred on a dark and rainy night, resulted from the defendant’s wagon being on the wrong side of the road and without lights, but when it appeared that the husband was in the front seat beside the chauffeur while his wife was in the tonneau, that the weight of the evidence indicated that the automobile was being driven at a speed of forty miles per hour, and that the automobile was on the wrong side, of the road, and when it further appeared that the front lights of the automobile illuminated the road for a distance of 200 feet, the trial judge did not err in charging that if the automobile was being driven at a “manifest improper speed” or manifestly on the wrong place in the road and these faults or either of them contributed to the happening of the accident, and if plaintifEs made no effort to get the chauffeur to drive at a proper speed and on the right of the road, they would be guilty of contributory negligence, but only if such acts were manifest; and in such cases verdicts for the defendant were sustained.</p> <p>3. In such case where the accident occurred in New Jersey, and the laws of that state required that all vehicles display lights during certain hours, covering the time when the accident happened, and it was admitted that there were no lights on defendant’s wagon, the trial judge did not err in charging, in effect, that if the absence of a light on the wagon was not the proximate cause of the accident, even though an act of negligence on the part of the defendant, it would not justify a recovery by the plaintiffs.</p>

<p>Deeds — Delivery—Failure to acltnowledge before notary — Validity — Fraud—Averments of fraud — Insufficient averments — Presumption■ — Ejectment—Demurrer.</p> <p>1. A- deed does not necessarily have to be acknowledged before a notary public to make it a valid instrument between parties. Execution and delivery are sufficient to pass the title.</p> <p>2. Where a statement of claim contains no particular averment of fraudulent purpose but the circumstances detailed are depended upon as showing such to be the ease, the facts relied upon must not only be fully and unequivocally averred, but they must point with some degree of certainty to the conclusion-contended for; in such case all intendments are to be taken most strongly against the pleader for he is presumed to have stated all the facts involved and to have done so as favorably to himself as his conscience would permit. Fraud is never to be presumed.</p> <p>3. Where a statement of claim in ejectment averred that plaintiff had conveyed the real estate in suit to defendant in consideration of an agreement by it to give plaintiff certain shares of stock, but that since such conveyance defendant had refused to deliver any of the stock to the plaintiff; and that the consideration for the conveyance had therefore failed; but where there were no allegations of fact indicating fraud when defendant secured the deed from the plaintiff, and where the statement did not charge the defendant with fraud in express terms, the lower court properly decided that ejectment was not the proper remedy, and a judgment for defendant on demurrer to the statement was affirmed on appeal but without prejudice to plaintiff’s right to assert her claim in some other proceeding.</p>

<p>Railroads — Rales—Discrimination—Principal and agent — Evidence of agency — Sufficiency.</p> <p>1. In an action against a railroad company for unlawful discrimination in allowing plaintiff’s competitors rebates on shipments of coal, there was evidence that plaintiff purchased coal from a- firm of individuals at the price at the mine plus freight charges, that the freight charges were added to the price of the coal and paid by plaintiff to the firm; a witness testified to having seen an agreement between the defendant and the firm providing for the collection of freight from consignees by the firm, for which service the firm was to receive a commission from the railroad company. There was also evidence that freight on coal purchased from other persons was paid direct to the defendant, but on purchases from the firm the freight was paid to the firm. Held, that the evidence was sufficient to warrant the jury in finding that the firm was the agent of defendant for the collection of the freight.</p> <p>Statute of limitations — Railroads — Rates — Discrimination— Fraud — Concealment—Tolling of statute — Statement of claim — Amendments — New cause of action — Penalty—Trebling damages— Act of June If, 1883, P. L. 78 — Practice, C. P.</p> <p>'2. Mere silence or the failure to keep a promise is not sufficient to stop the running of the statute of limitations, but where some affirmative act of concealment takes place it is not material whether the concealment is previous or subsequent to the beginning of the cause of action. The question is whether there was a design to prevent the discovery of the facts which gave rise to the action and whether the act operated as a means of concealment.</p> <p>3. In an action against a railroad for unlawful discrimination it appeared that the claim was made for damages sustained by plaintiff more than six years before the action was brought. It also appeared that during such period plaintiff had complained to an official of defendant that rebates were being allowed, and such official denied it. The plaintiff relied on the statement of such official and the fraud was not discovered until one year before the action was brought. There was further evidence that after the discovery of the fraud by plaintiff, defendant’s officials had told plaintiff’s competitor to destroy all his records showing rebates. Held, that the evidence of concealment was sufficient to toll the statute of limitations until the discovery of the fraud.</p> <p>4. In such case the instructions to destroy the records, although subsequent to the time of the discovery of the fraud by the plaintiff, could be considered as tending to support other evidence of bad faith from the beginning.</p> <p>5. In such case the statement of claim alleged that the plaintiff claimed damages to the extent of'$100,0(T0 by reason of the fact that defendant charged plaintiff for the. transportation of coal a sum in excess of that charged oth^r persons upon like conditions, and allowed concessions to a competitor of plaintiff not allowed to plaintiff in violation of the Constitution of Pennsylvania and the statutes passed in pursuance thereof. Afterwards the statement was amended so as to allege that defendant’s acts were in violation of the Constitution of Pennsylvania- and statutes passed in pursuance thereof and particularly the Act of June 4,1883, P. L. 72. At the trial which took place more than six years after the discovery of the fraud an amendment was offered but refused by the court claiming damages to the amount of $400,000, and alleging that plaintiff is entitled to and seeks to recover three times the actual damages suffered by him in accordance with, the statutes in such case made and provided. Subsequently plaintiff moved to treble a verdict for single damages rendered by the jury. Held, (1) that the amendment increasing the damages to $4'00,000 did not introduce a new cause of action and should have been allowed; (2) that the amendment made before trial referring to the Act of June 4, 1883, P. L. 72, although making no express claim for treble damages, sufficiently notified defendant that the action was brought to recover the penalty imposed by the statute and entitled the plaintiff to recover treble damages on motion.</p> <p>6. In an action for a penalty imposed by a statute, a recital of the facts constituting a cause of action within the statute, followed by a reference to the statute itself, is sufficient.</p> <p>Railroads — Rates—Discrimination—Measure of damages — Delay —Penalties.</p> <p>7. Where in an action against a railroad to recover damages for unlawful discrimination the jury found a verdict for plaintiff and allowed damages for delay in payment, and the plaintiff subsequently moved to have the verdict trebled, under the Act of June 4, 1883, P. L. 72, the court properly refused to permit recovery of damages for delay in payment as the plaintiff could not recover both damages for delay in payment and the penalty imposed by the statute.</p> <p>8. Under the Act of June 4,1883, P. L. 72, forbidding any undue or unreasonable discrimination on the part of common carriers against shippers and providing that any violation shall make the offending common carrier liable to the party injured for damages in treble the amount of injury suffered, the injury suffered may be either the difference in the rates charged, under the provisions requiring the allowance of the same concessions and drawbacks to all persons upon like conditions under similar circumstances and during the same period of time, or it may be the injuries suffered by reason of undue or unreasonable discrimination where the conditions differ, in which case the injury would not necessarily be the difference in charges, but would be the damage suffered by reason of defendant’s failure to furnish equal facilities for the requirements of shippers.</p> <p>9. Where it appeared that plaintiff was a retail coal dealer, and that defendant allowed another retail coal dealer, a competitor of plaintiff, rebates of fifty, twenty-five and fifteen cents per ton of coal shipped, as well as a fixed sum to pay rent for their coal yard, the court properly charged the jury that plaintiff might recover the difference between the amounts paid by him and the amount he would have paid at the lowest rate charged or received from any person for like services and under similar circumstances and conditions.</p> <p>Jurisdiction, G. P. — Interstate commerce — State courts.</p> <p>10. Where in an action against a railroad for unlawful rate discrimination it appeared that part of the coal, upon which plaintiff had been charged .a discriminatory freight rate, had been shipped in part through another state, the court properly refused to allow damages for such discrimination, as the acts of congress regulating the procedure in such cases have ousted the jurisdiction of the state courts over actions for the recovery of damages for unlawful discrimination.in rates on interstate shipments.</p>

<p>Corporations — Banks and banking — Loan society — President— Powers — Endorsement of check — Misappropriation of proceeds— Liability of drawee bank — Suit against drawee — Judgment for defendant n. o. v.</p> <p>1. Where the president of a loan society is constituted by its by-laws ,as the chief executive officer and general and active manager of the business of the company, he is fully authorized to accept money paid to the company, whether in cash or in the form of a cheek payable to the order of the company and where he misappropriates funds so paid to him the loss must be that of the corporation.</p> <p>2. In an action against a bank by a depositor to recover the amount of a check which plaintiff had drawn upon the bank to the .order of a loan society, it appeared that the president of the loan society, who was its chief executive officer, endorsed the check and misappropriated the proceeds. Held, the proceeds of the check were received by the loan society in accordance with the terms of the check, and in the action against the bank judgment should have been entered for the defendant n. o. v.</p> <p>Banks and banking — President of bank — Power to endorse — Bills or notes.</p> <p>3. Even where his authority comes only from its directors, the president of a bank may endorse bills or notes payable to it. It would seem that he has implied power to endorse and transfer its negotiable paper.</p>

<p>Appeal, No. 179, Jan. T., 1916, by Girard Trust Company,. Executor of the Estate of Augusta Taber, deceased, from decree of O. C. Philadelphia Co., July T., 1910, No. 192, dismissing exceptions to adjudication, in Estate of Augusta Taber, deceased.</p> <p>Exceptions to adjudication. Before Gummey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Girard Trust Company, Executor, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p> <p>— The counsel fee incurred by the executor for professional services in upholding the will is not subject to collateral inheritance tax when the contest is conducted for the benefit of all the legatees under the will: Howell’s Est., 147 Pa. 164; Geddis’s App., 9 Watts 284; Scott’s Est., 9 W. & S. 98; Yerkes’s App., 99 Pa. 401; Rankin’s App., 10 W. N. C. 235; Waller’s Est., 24 Pa. D. R. 85.</p> <p>The sum paid by the executor to the next of kin by way of compromise of all claims against the estate after the bona fi.de contest had been waged for four years, is not subject to collateral inheritance tax: Kerr’s Est., 159 Pa. 512; Pepper’s Est., 159 Pa. 508; Hawley’s Est., 214 Pa. 525.</p> <p>— The fee to counsel for proponents of the will is not a proper deduction in ascertaining the clear value of the real estate: Orcutt’s App., 97 Pa. 179; Titlow’s Est., 163 Pa. 35; Line’s Est., 155 Pa. 378.</p> <p>The sum paid to the heirs at law and next of kin of testatrix in compromise of the litigation instituted by them to set aside the will is subject to collateral inheritance tax where testatrix left no one surviving her in the excepted class: Strode v. Com., 52 Pa. 181.</p>

<p>Negligence — Highways—Vehicles—Pedestrians—Collision—Case for jury.</p> <p>Where in an action to recover damages for injuries sustained by a pedestrian at the intersection of two streets, one of which she was endeavoring to cross, it appeared that before plaintiff started to 'cross she looked and saw no danger, and thereafter proceeded across, when a horse suddenly came upon her without warning and struck her, the case was properly submitted to the jury, and a verdict and judgment for plaintiff were sustained.</p>

<p>Contracts — Attorneys’ compensation — Bondholders’ committee— Reorganized company — Liability of new corporation.</p> <p>Where in an action against a reorganized corporation brought by ■a firm of attorneys for compensation for services rendered a bondholders’ committee, which had effected the reorganization, it appeared that the contract upon which the action was brought was not the defendant’s contract but the contract of the bondholders’ committee, and where the question whether the contract had subsequently been adopted by the defendant was submitted to the jury and the jury found a verdict for defendant, the refusal to enter judgment for plaintiff n. o. v. was proper.</p>

<p>Appeal, No. 205, Jan. T., 1916, by defendants, from decree of C. P. No. 2, Philadelphia Co., June T., 1911, No. 2258, awarding an injunction, in case of Provident Life and Trust Company of Philadelphia v. Joseph H. Klemmer and Albert H. Harris, Assessors; Simon Gratz, D. Newlin Fell, Jr., and John Wesley Durham, Members of the Board of Revision of Taxes for the City and County of Philadelphia, and the City of Philadelphia, and W. Freeland Kendrick, Receiver of Taxes.</p> <p>Bill in equity for an injunction. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>< The court on final hearing awarded an injunction as prayed for. Defendants appealed.</p> <p>Errors assigned were in dismissing'exceptions to various findings of fact and law and the decree of the court.</p> <p>— The Act of June 7, 1911, P. L. 673, which imposes a tax on plaintiff’s securities was not repealed by the Act of June 17, 1913, P. L. 507.</p> <p>Under the Act of June 17,1913, P. L. 507, the insurance assets of the plaintiff are not liable to taxation; the Act of June 17, 1913, P. L. 507, repealed the Act of June 7, 1911, P. L. 673, the insurance assets of the plaintiff are, therefore, exempt from taxation, and the decree should be affirmed.</p>

<p>Decedents’ estates — Collateral inheritance tax — Beal estate — Sale of minor’s interests — Liability of purchaser for tax — Contracts— Construction.</p> <p>1. The collateral inheritance tax is not levied upon an inheritance or legacy but upon the estate of the decedent; what passes to the heir or devisee, and to which he acquires title, is the portion of the estate remaining after the payment and satisfaction of the collateral inheritance tax.</p> <p>2. Where the guardian of certain minors having an interest in a decedent’s estate agreed, in settlement of a’ prolonged litigation with other heirs of the decedent in respect to the estate, to sell to the other heirs “all the right, title and interest of the said minors of, in and to the estate of......deceased, real and personal, for the sum of $40,000 in cash without any deduction whatever, title to be in fee simple, good and marketable, and such as will be insured by any reputable title company,” the agreement contemplated that what should be sold was the interest of the minors after the payment of collateral inheritance tax.</p> <p>3. Where in such ease real estate was embraced in the property sold and the collateral inheritance tax was not paid, and thereafter the vendee in order to make title was compelled to pay the collateral inheritance tax thereon he was not entitled to recover from the guardian of the minors the amount of such payment.</p> <p>4. In construing a contract that is ambiguous or contains apparently repugnant clauses, the court should consider the negotiations leading to its formation, its subject-matter, the consideration, the circumstances under which the parties contract, and the object to be accomplished.</p>

<p>Wills — Devises—Real estate — Equitable conversion.■ — -Presumption — Construction—Collateral inheritance tax.</p> <p>1. The law does not favor an equitable conversion and the presumption is against it.</p> <p>2. In order to work an equitable conversion of real estate there must be either a positive direction to sell, or an absolute necessity to sell in order to execute the will, or such a blending of real and personal estate by the testator in his will as to clearly show that he intended to create a fund out of both real and personal estate and bequeathed the said fund as money.</p> <p>3. The mere blending of real and personal estate without a clear and indubitable intent to create a common fund and bequeath it as money will not constitute a conversion.</p> <p>4. A nonresident testator owning personal property worth $30,000 and real estate in Pennsylvania, after bequeathing legacies aggregating $65,000 gave $100,000 to a charitable institution and made such institution his residuary legatee, providing that should his estate prove insufficient to meet all the bequests the deficiency should be deducted from the $100,000 bequest. He gave his executor “full power to sell any or all of my real estate, either at public or private sale, at such time or times and upon such terms and for such price or prices as to him shall seem best and upon such sale or sales to execute and deliver to the purchaser or purchasers deeds of conveyance in fee simple or any Jess estate as the ease may be.” The register of wills assessed the real estate in Pennsylvania for collateral inheritance tax. The executor contended that the will worked a conversion of the real estate and that it was therefore not liable to' collateral inheritance tax in this State. Held, the Orphans’ Court did not err in affirming the decision of the register of wills.</p>

<p>Negligence — Street railways — Pedestrians—Fall of trolley pole— Circumstantial evidence — Expert witnesses — Competency — Scope of examination — Proximate cause — Amendments—New cause of action — Statute of limitations — Practice, C. P.</p> <p>1. While the rule of many jurisdictions that where a thing is shown to be under the management of the defendant and his servants, and an accident occurring in respect thereto is such as in the ordinary course of things does not happen if those who have the management use proper care, it offers reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care, has not been applied in this State to cases such as ■ the present one, nevertheless under such circumstances the quantum of proof necessary to establish negligence need be very slight and may be merely circumstantial if sufficiently strong to carry conviction to a reasonable mind.</p> <p>2. Where, in an action against a street railway company to recover for personal injuries sustained in consequence of the fall of a trolley pole upon a pedestrian, there was uneontradicted evidence that the pole and equipment was in good condition after the accident, the trial judge did not err in refusing to permit a witness who had worked for a considerable number of years for defendant and had left its services five years before the accident, since which time he had no experience with trolley cars, to state whether ,as a result of his experience a trolley wheel could leave the wire if the pole were properly adjusted, in the absence of an offer to prove that the trolley equipment was the same at the time of the accident as when the witness acquired his alleged special knowledge; and especially where it appeared that the actual condition of the trolley equipment was susceptible of direct proof. Had the preliminary inquiry developed testimony from which the jury might have reached the conclusion that the pole had not been properly adjusted, and had this testimony been met by counter-proofs, then, perhaps, the question would have been proper.</p> <p>3. Where in such case there was a network of wires at the place of the accident, it was reversible error to refuse to permit plaintiff to prove by an expert who had worked with defendant for ten years previous to the trial, that trolleys' would frequently leave the wires, and when they did so at a network there was constant danger of the trolley wheel catching in the wires and pulling the pole out of its socket, and that it would be dangerous to cross such a network without taking hold of the trolley rope to prevent the trolley wheel from being caught in the wires, and that the instructions to conductors at the timé of the accident were to take hold of the rope at such a place, although there was no written rule to that' effect.</p> <p>4. Where there was evidence that at the time of the accident the wire on which the trolley traveled was “flopping up and down” and that the trolley left the wire, and that the rope had not beeii held by the conductor, there was sufficient circumstantial evidence to require the submission of the case to the jury so that they could determine whether the pole had been pulled from the top of the car by becoming enmeshed in the wires, and if so whether the conductor was guilty of negligence in failing to hold the rope at the- place in question and whether such negligence was the proximate cause of the accident, and the entry of a nonsuit was error.</p> <p>5. Where the statement of claim averred that it was the duty of the defendant to inspect and repair its cars, and to operate and control them upon the streets of the city in a proper and careful manner, so that pedestrians crossing the streets should not be injured by said cars or by the falling of said cars or any part thereof, it was not error, after the statute of limitations had run, to refuse to permit plaintiff to amend the statement of claim so as to aver that it was the duty of the defendant to have a special automatic device upon its cars to keep its trolley poles from catching in such wires in case they should leave the lines.</p>

<p>Appeal, No. 311, Jan. T., 1916, by defendants, from judgment of C. P. No-. 1, Philadelphia Co., March T., 1915, No. 4277, on verdict for plaintiff, in case of Barnet J. Medoff, doing business as Medoff & Bon v. Joseph Fisher, Michael Lessy and Jacob</p> <p>C. Reinish.</p> <p>Assumpsit for professional services rendered by an architect. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Ver diet _ for plaintiff for $2,247 and judgment thereon. Defendants appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury, including a refusal to give binding instructions for the defendants.</p> <p>— The architect cannot recover for making plans and specifications which provide for the erection of a building in violation of the laws of Pennsylvania: Nave v. McGrane, 19 Idaho 111 (113 Pac. Repr. 82); Straus v. Buchman, 96 N. Y. App. Div. 270 (89 N. Y. Supp. 226).</p>

Appeal, No. 343, Jan. T., 1916, by defendant, from order of C. P. No. 4, Philadelphia Co., March T., 1913, No. 2464, dismissing exceptions to the confirmation of a sheriff’s deed, in case of Elmer C. Rice v. Robert D. Kinney. Exceptions to .the confirmation of a sheriff’s deed.

<p>Appeal, No. 355, Jan. T., 1916, by plaintiff, from order of C. P. No. 3, Philadelphia Co., Sept. T., 1909, No. 400, refusing to take off nonsuit in case of Mary F. Fischer v. William R. Taylor.-</p> <p>Trespass for deceit. Before Ferguson, P. J.</p> <p>From the record it appeared that plaintiff sued to- recover $10,000 as damages by reason of the sale to her by the defendant of 1,200 shares of stock of the Guanacevi Tunnel Company at $5 a share.</p> <p>Plaintiff testified defendant told her the company owned and operated a fully developed gold mine, with ore running from $2 to $21 a ton; that it cost $2 to work and mill, and there would be a net profit of $2 a ton; that there were 22,500,000 tons of ore thoroughly explored and blocked out that would yield the company fifty million dollars; that the ore would run $4 a ton on the’average and it would cost $2 to work it and there would be $2 profit; that it was’ working two shifts’of •people and'there was’new machinery and a new stamping mill, and a larger mill had been bought and was on its way to Mexico to be put in, and there were thousands of tons of ore on' the dump outside the shaft and outside of the tunnel; that these veins alone that were really blocked out and thoroughly explored would allow the company to run a lifetime, at least, the mines would run a lifetime at a large profit.</p> <p>Plaintiff also stated defendant gave her certain pamphlets and told her the matters in the pamphlets were true facts, that he knew them to be true facts of his own knowledge.</p> <p>There was no testimony that any of these alleged representations were untrue except the testimony of one witness that the mine was not fully developed. It was not shown that the defendant knew that the representations which it was alleged were made were untrue.</p> <p>There was no testimony to show what the real value of the stock which the plaintiff purchased was at the time she purchased it.</p> <p>Other facts appear in the opinion of the Supreme Court.'</p> <p>The trial judge entered a compulsory nonsuit which the court in banc subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p>

<p>Negligence — Master a/nd servant — Safe place to work — Patent danger.</p> <p>In an action by an employee against his employer to recover damages for personal injuries suffered by plaintiff in consequence of stepping into a hole in the floor of a building in which he was working, a nonsuit was properly entered where it appeared that plaintiff had noticed a number of similar holes and had attempted to cover them but had missed the one into which he (fell.</p>

<p>Appeal, No. 192, Jan. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Sept, T., 1915,. No. 2529, discharging rule to' open judgment in case of Cosmos Building and Loan Association v. Patrick J. Courtenay.</p> <p>Petition for rule to open judgment entered for want of a sufficient affidavit of defense. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court discharged the rule, defendant appealed.</p> <p>Error assigned was in discharging rule.</p>

Appeals, Nos. 127 and 233, Jan. T., 1916, by the Commonwealth, from decree of O. C. Montgomery Co., Nov. T., 1915, No. 35, and O. C. Philadelphia Co., July T., 1914, No. 74, affirming appraisement for collateral inheritance tax in Estate of Mary Van Beil, deceased, and re Estate of Eliza Otto, deceased. Appeals from appraisement of Register of Wills for. the purposes of settling collateral inheritance tax. Van Beil’s Estate. Before Solly, P. J. Otto’s Estate.

Appeal, No. 214, Jan. T., 1916, by defendant, from judgment of C. P. Montgomery Co., June T., 1915, No. 48, on verdict for plaintiff in case of Schuyler L. Washington- v. Gulf Refining Company. Trespass to recover damages for personal injuries.

<p>Taxation — State tax on corporations — Settlement—Collateral attack — Jurisdiction—Insolvent corporations — Act of July 22, 1918, P. L. 908.</p> <p>1. When in any given case the taxing authorities have general power to tax the subject-matter involved, an assessment made in manner and form authorized by law cannot be attacked collaterally.</p> <p>2. Settlement of a state tax on the capital stock of a corporation, under the Acts of June 1, 1889, P. L. 420; June 7, 1911, P. L. 673, and July 22, 1913, P. L. 903, involves findings of fact by duly authorized officials vested with appropriate powers, and no other tribunal unless one duly authorized has the right to inquire into or, set aside such findings.</p> <p>3. At the audit of the account of the receiver of an insolvent corporation it appeared that the Commonwealth presented claims for certain taxes on capital stock and corporate loans, upon accounts duly settled by the proper authorities for want of the annual reports. required by law; the auditor, instead of accepting the settlements, took testimony and concluded that the State was not entitled to the taxes claimed, and the court made a decree accordingly. Held, that the court was without jurisdiction to entertain the question.</p> <p>.4. The fact that the corporation was insolvent and in the hands of a receiver did not limit, restrict or affect the right of the State taxing officers to assess the tax.</p>

<p>Équity — Jurisdiction—Real estate — Act of June 7, 1907, P. L. lfl/.0 — Deed in, fraud of creditors — Res adjudicáta.</p> <p>1. Where a party seeks relief in a court of equity and insists on its jurisdiction, he cannot thereafter complain because the court sustains his contention and disposes of the case upon its merits.</p> <p>2. Equity has concurrent jurisdiction with law where property has been fraudulently conveyed or encumbered in order to defeat the claims of creditors.</p> <p>3. Under the Act of June 7, 1907, P. L. 440, the decision of a court of equity in favor of its jurisdiction is conclusive on plaintiff.</p> <p>4. On January 9, 1915, the owner of certain land conveyed it to his wife; the deed was recorded on February 12, 1915. Between the delivery and recording of the deed, the grantor gave a third party a judgment note on which judgment was entered prior to the recording of the deed. Thereafter such third party filed a bill in equity against the grantee averring that the deed was in fraud of the rights of creditors and praying that it be decreed void. The grantee filed an answer denying the allegations and averring that the complainant was not entitled to equitable relief. The complainant contended at every stage of the proceeding that the court had jurisdiction and filed a replication. The court on final hearing dismissed the bill. Thereafter plaintiff issued execution on his judgment by virtue of which the land was sold to him by the sheriff; plaintiff then brought an action of ejectment against the grantor and the grantee in the deed, basing his right to recover on the alleged fraudulent character of the deed. Defendants’ answer averred that the question of the validity of the deed was res adjudicada. The court below entered judgment for defendants on demurrer to the answer. Held, no error.</p>

<p>Eminent domain — Assessment of benefits — Opening of streets— Measure of damages — Elements to be considered by jury- — Evidence —Report of viewers — Harmless error — Objection not raised below.</p> <p>• 1. Where property lies at the corner of unopened intersecting streets, and the streets are thereafter opened and separate juries of view appointed to assess damages and benefits resulting to the abutting property from the opening of each of the two streets, benefits may be separately assessed for the opening of the street that the entire property has been benefited by the improvement.</p> <p>2. The owner of property at the southwestern corner of Walnut and Fifty-eighth streets in the City of Philadelphia was assessed upon which but a small portion of the property abuts if it appear for benefits for the opening of Fifty-eighth street. The ordinance provided in effect for the opening of Fifty-eighth street from the north to Walnut street and for the opening of Walnut street from Fifty-eighth street to Sixtieth street. Such property owner contended that the ordinance provided only for the opening of Fifty-eighth street to the north side of Walnut street, that, as his property ran only to the middle of Walnut street, it did not abut on Fifty - eighth street and could not, therefore, be assessed for benefits. Held, that the ordinance provided for the opening of Fifty-eighth street to the south side of Walnut street; that as the defendant’s property ran to the middle of Walnut street, it abutted on Fifty-eighth street as opened for half the width of Walnut street and was properly assessed for benefits.</p> <p>3. Although the portion abutting on Fifty-eighth street was but a small portion of the tract, yet as Fifty-eighth street connected with a main thoroughfare, the whole tract was thereby advantaged, not merely the small portion directly abutting thereon, and the question of the extent of the benefit of the improvement to the entire property, if any, was properly submitted to the jury.</p> <p>4. In estimating the damages and benefits resulting from the opening of a street the criterion is the difference in market value of the whole tract before and after the changed condition.</p> <p>5. A general advance in value in the neighborhood is not ground for assessed benefits if the property does not border on the improvement. But if the property adjoins the improvement it becomes the subject of assessment and the rule is that in estimating both damages and benefits the criterion is the difference in market value as a whole before and after the changed conditions.</p> <p>6. The court properly refused to charge the jury that benefits,, if allowed, should be restricted to such advantages as are essential and peculiar to defendant and do not include those common to tbe public.</p> <p>7. Where in such case a point was presented on behalf of defendant which stated that remote and speculative benefits should not be taken into consideration, nor should the jury -consider benefits accruing from the' increased business the opening of the highway might bring to the owner of the land, it was not reversible error to qualify the point by saying • “yon must be satisfied if the advantages accrue to it within a reasónably shórt sf>aeé of time, .which we call, by the way, relatively immediate,” Where the cóurt affinned a point for defendant which stated that the damages or benefits were to be measured by the difference in the market value immediately before the opening of the street and its market value immediately after the opening of the street. In such case the complaint that the use of the words “relatively immediate” permitted the jury to depart from the general rule, by which damages are measured by the difference in market value before and after the improvement was without merit. /</p> <p>8. Where proceedings were instituted prior to the passage of the Act of April 2, 1903, P. L. 124, making viewers’ reports prima facie evidence of benefits sustained, the report of the viewers was not' admissible in evidence but the fact that it was admitted, was not reversible error where such ground of objection was not relied, upon at the-trial, where there was other evidence of the facts set forth in the report, and where the jury were instructed that the report of fhe viewers was not binding upon them, and that, if in their opinion the viewers reached an improper conclusion, they must have no hesitation in so finding.</p> <p>9. The fact that the plan attached to the report did not show 'the whole of defendant’s property was not ground for reversal where there was other evidence as to the extent and description of defendant’s property, and where such facts were not in dispute.</p> <p>Practice, Supreme Court — Appeals—Defective assignments of error.</p> <p>10. Assignments of error to the action of the court in overruling objections to certain questions are defective where they fail to set forth the answers to the questions.</p>

<p>Appeal, No. 204, Jan. T., 1916, by Kathryn Berberich, Administratrix of the estate of Herman Berberich, deceased, from decree of O. C. Philadelphia Co., Oct. T., 1915, No. 294, dismissing exceptions to adjudication, in Estate of Herman Berberich, Deceased.</p> <p>Exceptions to adjudication. Before Anderson, J.</p> <p>The opinion of tbe Supreme Court states tbe facts.</p> <p>Tbe court dismissed the exceptions in an opinion by Gest, J. Kathryn Berbericb, administratrix of the estate of Herman Berbericb, deceased, appealed.</p> <p>Errors assigned were in dismissing tbe exceptions. •</p> <p>— A pledgee of stock before selling tbe pledgor’s property must give reasonable notice to tbe pledgor, or if be be dead, to bis representative : Diller v. Brubaker, 52 Pa. 498; Esser v. Linderman, 71 Pa. 76; Davis v. Funk, 39 Pa. 243; Conyngham’s App., 57 Pa. 474; Rosenblatt v. Weinman, 230 Pa. 536; Bell v. Mills, 123 Fed. Repr. 24 ; Buffalo German Insurance Company v. Third National Bank of Buffalo, 29 N. Y. App. Div. 137; Hess et al. v. Rau, Ex’trx., 95 N. Y. 359.</p> <p>A sale without, prior notice is a conversion and tbe pledgee cannot recover a balance due from tbe pledgor or bis estate: Sterling’s Est., 254 Pa. 155; Sproul v. Sloan, 241 Pa. 284; Darr, Admr., v. Fidelity Title & Trust Co., 243 Pa. 591.</p> <p>There was no duty on tbe part of tbe administratrix to repudiate sales of stock made illegally: Penna. Schuylkill Valley R. R. Co. v. Reading Paper Mills, 149 Pa. 18; Lehman v. Murtoff, 7 Pa. Superior Ct. 485; Rhawn v. Edge Hill Furnace Co., 201 Pa. 637; Hill v. Epley, 31 Pa. 331; Chapman v. Chapman, 59 Pa. 214; Hepburn v. McDowell, 17 S. & R. 383; Larkins’s App., 38 Pa. 457; Eldred v. Hazlett’s Administrator, 33 Pa. 307; Hoffman v. Bloomsburg & Sullivan Co., 157 Pa. 174.</p> <p>Counsel for tbe administratrix cannot and did not waive tbe legal duty imposed upon tbe pledgee to give notice of the,sale to the pledgor’s representative: Locker v. Rice, 8 Pa. D. R. 404; Gray v. Howell, 205 Pa. 211; McGarry v. McGarry, 9 Pa. Superior Ct. 71; Brockley v. Brockley, 122 Pa. 1; Stilley v. McNeal, 219 Pa. 533; Rowland v. Slate, 58 Pa. 196; Tompkins v. Woodford, 1 Pa. 156.</p> <p>— There was no administratrix or any other legal representative of the estate of the decedent to whom notice could have been given and who might have redeemed the securities at the time of the sale.</p> <p>A sudden, unexpected and unforeseen train of circumstances arose creating an emergency requiring immediate action; under such circumstances it was not necessary to give notice.</p>

<p>Negligence — Railroads—Obstruction of crossing — Fire engine— Nonsuit,</p> <p>In an action to recover damages from a railroad company for injuries sustained in consequence of the obstruction of a grade Crossing by a passing train whereby a fire engine was delayed W reaching plaintiff’s building, which had caught fire, where it did not appear that those who were in charge, of the train knew or ought to have known of the existence of the particular fire when they were employing or were about to employ the crossing with their train, or that from the time the gates were closed until they were raised it was reasonably practicable for the defendant to adopt other methods in clearing the crossing, that would have enabled the fire engine to sooner reach the fire, the trial judge made no error in entering a compulsory nonsuit.</p>

<p>Contracts — Restraint of trade — General restraint — Partial restraint — Validity—Consideration—Equity—Injunction—Refusal.</p> <p>1. The law of Pennsylvania observes the distinction between contracts in general restraint of trade and those in partial restraint of trade. A contract in general restraint of trade covers the entire country, while a contract in partial restraint of trade covers only a small area. While contracts in general restraint of trade are void, contracts in partial restraint of trade will be sustained if reasonable.</p> <p>2. A contract which attempts to re_strain a party from engaging in a business which has previously been open to him in common with the general public is unreasonable and such restriction will not be enforced by the courts.</p> <p>3. A contract in restraint of trade, unlimited as to time, must be regarded as extending the restraint further than is necessary for the reasonable protection of the covenantee and is void.</p> <p>4. A contract granted the sole and exclusive right to manufacture and use a patented apparatus for feeding horse hair from a bundle to a wrapping device. The contract further provided that in case the license were surrendered “the licensee will not thereafter, either directly or indirectly, engage in the business of manufacturing or selling the same or any competing material in the United States.” Upon the surrender of the license, the former licensee engaged in the business of manufacturing and selling horse hair yarn. The former licensor brought a bill in equity to enjoin defendants from violating the provisions of the contract. Held,, that the contract was unreasonable restraint of trade in that .it attempted to restrain defendant from engaging in a business throughout the United States, which prior thereto, he had a right to engage in, and the restraint was in other respects larger than necessary for the protection of the licensor, and the excessive restraint was without consideration.</p>

<p>Appeal, No. 327, Jan. T., 1916, by H. R. Sack, from decree of C. P. No. 4, Philadelphia Co., March T., 1915, No. 3470, awarding an injunction, in case of Bruno Henschke and Karl Ersel, Copartners doing business under the name of Haensel & Company v. Edgar B. Moore, H. R Sack, The Penn Worsted Company, and Edgar B. Moore, Henry Frankenberg, Edward A. Morgan, Jr., and Louis F. Singleton, Copartners, doing business under the name of E. B. Moore and Company.</p> <p>.Bill in equity for an injunction. Before Finletter,. J.</p> <p>The‘facts appear in Henschke et al. v. Moore et al., 257 Pa. 196.</p> <p>The court on final hearing awarded an injunction as prayed for. H. R. Sack appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law and the decree of the court.</p>

<p>Appeal, No. 313, Jan. T., 1916, by defendants, from judgment of C. P. NO'. 1, Philadelphia Co., June T., 1913, No. 4756, on verdict for plaintiff, in case of Madirios Babayan v. John C. Reed, Charles E. Starr and Heverin S. Reed.</p> <p>Assumpsit for breach of a contract.' Before Bregy, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for |3,625 and judgment thereon. Defendants appealed.</p> <p>Errors assigned were rulings on evidence, answers to points and instructions to the jury.</p> <p>— It was error to refuse to penhit the examination of one of defendants’ witnesses as to the salary of an expert cigarette blender, whether cigarette blenders are in demand in the trade,' and whether they have any difficulty in securing positions : Emery v. Steckel, 126 Pa. 171.</p> <p>The affirmance of the plaintiff’s points in effect instructed the jury that they should find, not the value of the contract, but the amount of wages due under the contract, with interest on installments prior to the date of the trial; this was not the proper measure of damages: Roserie v. Kiralfy Bros., 12 Philadelphia 209; Rightmire v. Hirner, 188 Pa. 325; Nixon v. Myers, 141 Pa. 477; Richards v. Citizens Gas Co., 130 Pa. 37; Crawford v. Mail & Express Publishing Co., 47 N. Y. Supp. 747.</p> <p>It was error to admit evidence of conversations between the plaintiff and the defendants as to the amount of profits made by the plaintiff prior to his entering into the contract with the defendants.</p> <p>— The plaintiff was properly permitted to recover the value of the contract of employment from the date of his discharge until its termination, about four years and ten months: Wilke v. Harrison, 166 Pa. 202; Heyer v. Cunningham Piano Co., 6 Pa. Superior Ct. 504; Hoy v. Gronoble, 34 Pa. 9; Cutter v. Gillette, 163 Mass. 95 (39 N. E. Repr. 1010).</p>

<p>Mortgages — Mortgagees — Future advances and liabilities — Consideration — Bights of junior mortgagee — Priority.</p> <p>1. When a contract for advances or for the assumption of future obligations accompanies a mortgage it is not essential to its validity that the engagement governing the advances be placed upon record or. even expressely referred to in the mortgage. When such a contract obligates the mortgagee either to make advances or assume future responsibilities on behalf of the mortgagor, this lends a sufficient consideration to the mortgage and the lien of payments made under such an agreement relates back to the date of the mortgage, and this is true even though the advances are liquidations of assumed responsibilities incurred after the date of a subsequent or junior encumbrance placed upon the mortgaged premises.</p> <p>2. The owner of real estate mortgaged the property to a trust company for $40,000. At the time of the execution of the mortgage but $32,000 had been loaned to the mortgagor by the mortgagee; at that time the mortgagor gave the mortgagee a demand note wherein it was agreed that “the securities hereby pledged together with any that may be pledged hereafter shall be applicable in like manner to secure the payment of any future obligations of the undersigned held by the holders of this obligation, and all such securities in their hands shall stand as one general continuing collateral security for the whole of said obligation.” Thereafter the mortgagor gave the trust company a bond to indemnify it against loss which it might sustain by issuing a title policy in favor of the mortgagee of certain other property owned by the mortgagor. Thereafter the mortgagor gave a second mortgage upon the property covered by the $40,000 mortgage. The second mortgagee had notice that only $32,000 was loaned on the first mortgage. The mortgagor became indebted to the trust company for a large amount under the provisions of his bond. The mortgage was subsequently foreclosed and the property sold. The trust company and the second mprtgagee each claimed the amount remaining after the payment of the $32,000. Reid, that under the agreement between the mortgagor and the trust company a potential obligation such as that created by the bond of indemnity related back to the time of the execution of the mortgage, when it became a fixed liability; and that the trust company was entitled to payment of the full amount of the $10,000 mortgage in preference to the second mort-</p> <p>Practice, Supreme Court — Appeals — Assignments of error — Defective assignments.</p> <p>3. Assignments of error complaining of the action of the lower court in dismissing exceptions to findings or conclusions of an auditor are defective where they do not contain in totidem verbis the court’s action on the particular exception and where they do not show where the matter referred to is to be found in the paper books or the appendix.</p>

<p>Appeals, Nos. 5 and 6, May T., 1917, by plaintiff and defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1915, No. 71, on verdict for plaintiff, in case of John E. Joos, a resident of the City of Pittsburgh, Allegheny County, Pennsylvania, v. The Commonwealth of Pennsylvania.</p> <p>Assumpsit for advertising. Before McCarrell, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The case was tried without a jury under the Act of April 22,1874, P. L. 109.</p> <p>The court found for plaintiff for $2,524 with interest from May 9,1885, and entered judgment on the findings. Plaintiff and defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and law, and the judgment of the court.</p>

<p>Negligence — Master and servant — Mines and mining — Supports —Failure to furnish — Danger not obvious — Case for jury.</p> <p>In an action against ,a mining company to recover damages for injuries sustained by a miner in consequence of the fall upon him of a part of the roof of the mine at the place he was working, where it appeared that no timber had been supplied plaintiff for the support of the roof, that the danger was not obvious, that he had requested timber of the mine foreman and the mine superintendent, and had been told to go ahead with his work and that the timber would be sent, and three days thereafter had renewed his request and was told a second time to go ahead,' and that the timber would be sent, but that no timber was furnished, in consequence of which the roof fell and the injury complained of resulted, the case was for the jury and a verdict for the plaintiff was sustained.</p> <p>Collins v. Northern Anthracite Coal Co., 241 Pa. 55, followed.</p>

<p>Negotiable instruments — Promissory notes — Alleged cancellation —Insufficient evidence.</p> <p>Where in an action on a promissory note, brought by the executrix of a decedent’s estate against the maker, the defense was that the note had been cancelled in pursuance of the terms of an agreement entered into by defendant and plaintiff’s decedent, but where the evidence showed that although an agreement was to have been prepared and executed and the note cancelled in pursuance thereof, such agreement had in fact never been executed, and that the liability of the defendant had not been impaired at the time of the death of decedent, the court properly directed a verdict for plaintiff.</p>

<p>Wills — Devises—Buie against perpetuities.</p> <p>A testator bequeathed real and personal property in trust for the benefit of a son for his life and upon his death “unto the lawful issue of my said son......, share and share alike, to be paid to them respectively upon their arriving at the age of twenty-one years, the same to be put out at interest......and the interest accruing therefrom to be applied to their maintenance and education respectively until their arrival at the age of twenty-one years, and in case either of said issue should die before arriving at the age of twenty-one years without issue, I give and bequeath the share of the one or ones so dying unto the survivor or survivors thereof, and if all the lawful issue' of my son should die without issue, before arriving at the age of twenty-one years” then over to a charitable use. Held, that the gift over to the charitable use violated the rule against perpetuities and was void.</p>

<p>Liens — PHority — Corporation mortgage — Mortgagee’s sale to trustees — Tax lien — Sheriff’s sale.</p> <p>A corporation mortgaged its property to a trust company to secure .a bond issue and thereafter sold its interest in the mortgaged premises to another company. A lien for unpaid capital stock taxes was then entered against the vendee corporation. The property was subsequently sold by the mortgage trustee under a power of sale contained in the mortgage, to certain trustees for the bondholders. Thereafter in proceedings instituted by the Commonwealth upon the tax lien the property was sold at sheriff’s sale to the trustees for the bondholders. Held, since the sale on the mortgage was not a judicial sale the tax lien was not thereby divested, and on the sheriff’s sale on the tax lien the proceeds were properly awarded to the Commonwealth to the exclusion of the trustees for the bondholders.</p>

<p>Appeal, No. 186, Jan. T., 1916, by plaintiff, from order of C. P. Schuylkill Co., July Term, 1915, No. 60, refusing to take off nonsuit in case of Anna McMennimen v. The Lehigh Valley Coal Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Bechtel, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court directed a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was the refusal to take off the nonsuit.</p> <p>— The failure of the person “superintending or directing the work” to adopt a proper method for doing the work raises a question of the principal’s negligence which must be submitted to the jury: Rauhauser v. York Mfg. Co., 50 Pa. Superior Ct. 506; Mingak v. Vesta Coal Co., 51 Pa. Superior Ct. 584; Kelly v. Henry Bower Chem. Mfg. Co., 239 Pa. 555; Sage v. Lehigh Valley R. R. Co., 241 Pa. 49; Reese v. Jones & Laughlin Steel Co., 243 Pa. 336; Counizzarri v. Snyder, 252 Pa. 377.</p> <p>The defendant failed in its duty to furnish reasonably safe appliances: Morrison v. South Penn Oil Co., 247 Pa. 263; Skelley v. Crutchfield, 17 Pa. Superior Ct. 198; Kehler v. Schwenk, 151 Pa. 505; Butterman v. McClintic-Marshall Const. Co., 206 Pa. 82; Bonner v. Pitts. Bridge Co., 183 Pa. 278; Toward v. Meadow Lands Coal Co., 229 Pa. 553; Kepler v. Lackawanna Lumber Co., 209 Pa. 244.</p> <p>— The nonsuit was properly entered: Payne v. Reese, 100 Pa. 301; Miller v. Republic Chemical Co., 251 Pa. 593; Solt v. Williamsport Radiator Co., 231 Pa. 585; Iams v. Hazel-Atlas Class Co., 251 Pa. 439; Fritchle v. Steel City Elec. Co., 251 Pa. 513; Feeney v. Abelson, 49 Pa. Superior Ct. 163; Meyers v. Jones & Laughlin Steel Co., 64 Pa. Superior Ct. 530.</p>

<p>Negligence — Statute of limitations — Suit of husband for injuries to wife — Act of June 2b, 1896, P. L. 286.</p> <p>The right of a husband to maintain a suit for personal injuries sustained by his wife is barred after two years by the provisions of the Act of June 24, 1895, P. L. 236.</p>

<p>Appeal, No. 268, Jan. T., 1916, by plaintiffs, from judgment of C. P. Schuylkill Co., Sept. T., 1915, No. 355, non obstante veredicto for defendants in case of A. W. Sheafer and Henry Sheafer, .Surviving Executors of Estate of Peter W. Sheafer, deceased, v. A. B. Woodside, Virginia Woodside, Geraldine Woodside, Fannie Woodside, Mortgagors; Estate of Geraldine Woodside; G. W. F. Woodside, Administrator, real owner.</p> <p>Scire facias sur mortgage. Before Koch, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiffs for $8,'728.87. The court subsequently entered judgment for defendants non obstante veredicto. Plaintiffs appealed.</p> <p>Error assigned was in entering judgment for defendants n. o. v.</p> <p>— The evidence was sufficient to overcome the presumption of payment from lapse of time and the question was properly submitted to the jury by the court: Eby v. Eby’s Assignee, 5 Pa. 435; Reed v. Reed, 46 Pa. 239; Porter v. Nelson, 121 Pa. 628; Hagan’s Est., 50 Pitts. L. J. 49; Troxell v. Troxell, 19 York L. R. 20; White v. White, 200 Pa. 565; O’Hara v. Corr, 210 Pa. 341; Wilson v. Eckman, 55 Pa. Superior Ct. 403.</p> <p>— Presumption of payment governs the case: Peter’s App., 106 Pa. 340; Gregory v. Commonwealth, 121 Pa. 611; Fidelity Title & Trust Co. v. Chapman, 226 Pa. 312.</p>

<p>Appeal, No. 237, Jan. T., 1916, by defendant, from judgment of O. & T. Lackawanna Co., Jan. Sessions, 1916, No. 15, on verdict of guilty of murder of the second degree in case of Commonwealth of Pennsylvania v. Anthony Lapriesta.</p> <p>Indictment for murder. Before Staples, P. J.</p> <p>The defendant was indicted for the murder of Tony Borneo on January 1, 1916. The jury found him guilty of murder of the second degree, for which he was sentenced to a term of eight years minimum and twelve years maximum in the State penitentiary for the eastern district of Pennsylvania. Defendant appealed.</p> <p>Errors assigned were (1) stating to the jury that the defendant was charged in the indictment with a count for manslaughter, and the second, third and fourth assignments which follow:</p> <p>Second. The learned court erred in its answer to the fourth request of defendant for instruction. The request and the answer thereto are as follows:</p> <p>“If the attack on Lapriesta was so sudden and violent that a retreat would not diminish his danger he could kill Romeo, if from the nature of the attack, there was reasonable ground to believe that there was a design to take his life, or do him great bodily harm; and in so doing he would be guilty of no crime and should be acquitted.</p> <p>“Answer: We affirm that point, gentlemen of the jury, if you find from the evidence that there was no other way of resisting'and the killing came from the resisting.”</p> <p>Third. The learned court erred in its answer to the fifth request for instruction by defendant. The request and the answer thereto are as follows to wit:</p> <p>“If the assault upon Lapriesta was so fierce as to justify him in the belief that he could not retreat without manifest danger of his life or grievous bodily harm, then, in his defense, he could kill Romeo instantly, and in so doing he would be guilty of nq, crime and should be acquitted.</p> <p>“Answer: We affirm that point if there were no other way by resisting or escaping. Killing is the last resort, and if there were any other way it was the duty of the defendant to take that way; but if there were no other way, then he would be justified even if it resulted in the killing of Romeo.”</p> <p>Fourth, The learned court erred in its answer to the seventh, request for instruction by defendant. The request and the answer thereto are as follows, to wit:</p> <p>“The law of self-defense is preeminent and by virtue of this inherent right a man assaulted by another, under circumstances manifesting an intention to take life or do some great bodily harm, may immediately resist the assailant even unto death. He may even, under circumstances of urgent and manifest necessity, anticipate the blow of an assailant threatening such an attack, and kill him before his deadly intention is followed by an actual assault.</p> <p>“Answer: That is rather academic, gentlemen of the jury, because there lacks in this case that which would sustain such facts; but as a general proposition we affirm it.”</p>

<p>Appeal, No. 57, Oct. T., 1917, by defendant, from sentence of O. & T., Jefferson Co., April T., 1916, No. 4, on verdict of murder of tbe first degree, in case of Commonwealth of Pennsylvania v. Ernest Haines.</p> <p>Indictment for murder. Before Corbet, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of murder of the first degree upon which sentence of death was passed. Defendant appealed.</p> <p>Errors assigned were in permitting Henry Ward Mot-torn to be called as a witness on behalf of the Commonwealth, in overruling objections to the admission in evidence of the testimony of said Mottorn and instructions to the jury.</p> <p>— It was error to permit Mottorn to testify on behalf of the Commonwealth: Commonwealth v. Greene, 227 Pa. 86; Commonwealth v. Minnich, 250 Pa. 363.</p> <p>It was error to permit Mottorn to testify as to another crime committed by defendant in no way connected with the crime with which he was charged: Commonwealth v. House, 223 Pa. 487; Snyder v. Commonwealth, 85 Pa. 519; Goersen v. Commonwealth, 99 Pa. 388; Swan v. Commonwealth, 104 Pa. 218.</p> <p>It was error to admit evidence as to statements made by defendant showing knowledge of certain matters which he had acquired after the homicide: Commonwealth v. Clark, 130 Pa. 641.</p> <p>The defendant had no right to object to the calling of Mottorn as a witness: Commonwealth v. Demasi, 234 Pa. 570.</p> <p>The admission of evidence as to other crimes committed by defendant was competent for the purpose of showing that Haines and Mottorn were together from time to time, near the date of the commission of the murder and that that intimacy between them became one of a chain in the circumstances which connected defendant and Mottorn with the crime charged against defendant : Turner v. Commonwealth, 86 Pa. 54; Com. v. Ferrigan, 44 Pa. 386; Shaffner v. Com., 72 Pa. 60; Kramer v. Com., 87 Pa. 299; Kilrow v. Com., 89 Pa. 480; Com. v. Pipes, 158 Pa. 25; Com. v. Johnson, 133 Pa. 293; Com. v. Bell, 166 Pa. 405; Com. v. Shields (No. 1), 50 Pa. Superior Ct. 1; Hester et al. v. Com., 85 Pa. 139; Com. v. Andrews, 234 Pa. 597; Com. v. Biddle (No. 1), 200 Pa. 640.</p> <p>The evidence as to declarations made by Mottorn after the crime was competent for the purpose of showing that defendant had made many contradictory statements after the murder as to his whereabouts at that time.</p>

<p>Appeal, No. 271, Jan. T., 1916, by I. D. Ivison, from decree of O. C. Franklin Co., requiring a life tenant of personalty to enter security in Estate of Kate Keyser Ivison, deceased.</p> <p>Petition to require a life tenant of personal property to enter security. Before G-illan, P. J.</p> <p>Kate. Heyser Ivison. died testate, June 1, 1912. Her will consisted of a formal paper and a letter of instructions to her executor and was duly probated before tbe register of wills of Franklin County and letters testamentary granted to I. D. Ivison, one of her executors, tbe other renouncing. The formal will gave to ber executors tbe residuary estate in trust with power to convert tbe same into money and to invest and reinvest tbe same in lawful securities, tbe income to be paid to tbe guardian of ber grandson, George W. Brodbead, tbe principal of tbe said fund to be paid to George W. Brodbead absolutely, when be became twenty-one (21) years of age. In case of bis death before be became twenty-one years of age without child or children surviving, tbe residuary estate was given to certain other persons.</p> <p>Tbe letter of instructions probated as part of tbe will gave to I. D. Ivison, tbe husband of tbe testatrix, all ber interest in tbe Hotel Washington, “be to pay tbe interest on five thousand (5,000) dollars at tbe rate of five (5) per cent, to my estate tbe same for (interest) maintenance of my grandson, George Wills Brodbead; interest not to begin for one year after my death and at tbe death of my husband, I. D. Ivison, the five thousand (5,000) dollars to revert to my estate for tbe use of my grandson, George Wills Brodbead, if of age. If not, to be invested to tbe best advantage by tbe trustees, interest only to be used. In case my grandson before reaching tbe age of twenty-one (21) years should die without issue, I give and bequeath to my husband, I. P. Ivison, all money, bonds, mortgages”; tbe remainder of tbe estate being-given to certain legatees.</p> <p>I. D. Ivison elected to take under bis wife's will. He filed bis account as executor which was excepted to and tbe exceptions in part sustained. On February 7, 1916, tbe Philadelphia Trust Company, guardian of George Wills Brodbead, tbe minor grandson of tbe testatrix, presented its petition to tbe Orphans’ Court of Franklin County for a rule on I. D. Ivison to turn over tbe certain articles given to Mm for life or until he should remarry and to require him to give security in the sum of ten -thousand (10,000) dollars for the payment of two hundred fifty (250) dollars to the guardian of George Wills Brodhead annually and to pay the principal sum to the said George Will's Brodhead, as provided by the will of the testatrix.</p> <p>I. D. Ivison, in Ms answer to said petition, expressed Ms willingness to turn over the articles of personal property valued at about four hundred (400) dollars but denied the right - of the guardian to require Mm to give security on the ground that the money was payable by him as legatee not to the guardian but to himself as trustee under the will of his deceased wife and that as trustee he had active duties to perform and, therefore, should not be required to give security.</p> <p>The court decided that the case was ruled by Kemmerer’s Est., 251 Pa. 282, and directed I. D. Ivison to enter security in the sum of $8,000. I. D. Ivison appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Equity — Appeals—Injunction—Preliminary injunction— Landlord and tenant — Interference with lease.</p> <p>An order continuing a preliminary injunction restraining defendant from interfering witb plaintiff’s possession of a store room and from instituting or proceeding witb any summary action at law for tbe recovery of possession, will not be disturbed on appeal where it appears from tbe record that plaintiffs were in lawful occupancy under a lease, and that defendant was threatening to'oust them.</p>

<p>Workmen’s Compensation Act — Workmen’s Compensation Board —Findings of fact — Appeal.</p> <p>Under Section 409 of the Workmen’s Compensation Act of June 2, 1915, P.'L. 736, findings of fact by a Workmen’s Compensation Board upon appeal from a referee are final and cannot be disturbed by the courts.</p>

<p>Appeal, No. 193, Jan. T., 1916, by plaintiff, from judgment of C. P. Lackawanna Co., March T., 3912, No. 278, on verdict for defendant, in case of Thomas J. Price v. Eichard Little.</p> <p>Trespass for libel. Before Staples, P. J.</p> <p>From the record it appeared that the alleged libelous article complained of consisted of an account of a proceeding brought before the plaintiff as alderman of the Thirteenth ward of the City of Scranton.</p> <p>Defendant offered evidence to prove that the publication was true.</p> <p>The court charged the jury in part as follows: .</p> <p>“You will remember, likely, the details of the evidence with regard to these charges of arbitrary conduct upon his part. We preface our remarks upon this subject with this, gentlemen of the jury: a magistrate is an officer of the law, his office is established largely for the convenience of the people and especially of the poorer class of people. It is not the rich as a rule who are called into a magistrate’s court, it is the poor who get there. As a rule the amounts that as sued for and the offenses charged against persons are small amounts and minor offenses. Of course, in the process of the criminal side of the court and the law, all kinds of charges against persons for crimes and felonies must be instituted in the magistrate’s court; but, as a rule, persons who are well to do, or have money at hand retain counsel or attorneys-at-law who take charge of their affairs and who go before the magistrates and look carefully after the rights of their clients, and this therefore puts a guard upon the magistrate and he is more inclined, I think it would be fair to say, to strictly obey the law and do his duty where there are counsel able and fitted to take care of the business which is brought before the magistrate, but a poor person, a person not well to do, is not in the same class, and he is at least entitled to information from a magistrate as to what he should do, and if the magistrate neglects to give that information to the person who is brought into his court and permits him to go on and neglect something that he ought to do until he is caught and then unable to do it and protect his right, that would be a matter of criticism, we take it, by a newspaper, if made in proper manner. It is a part or should be a part of the ethics in a magistrate’s office the same as a part of the ethics in the Common Pleas Court. No judge in the Court of Common Pleas who had any regard to the proprieties of life and of his office should sit in a case in which he had the least interest. He would call in another judge. He ought not to sit in a case where the relations between himself and some suitor were so close as even to cast suspicion upon him, and a magistrate who •brought a suit in his own court for a claim in which he was personally interested in the mind of the court would be guilty of misconduct, to say nothing further about it.» (2)</p> <p>Verdict for defendant and judgment thereon. Plaintiff appealed.</p> <p>Error assigned was (2) charge of the court.</p>

<p>Appeal, No. 2, Jan. T., 1917, by Elizabeth Gilroy, Administratrix of the Estate of Mary Me Andrew, deceased, from order of O. C. Lackawanna Co., Year 1914, No-. 698, refusing issue devisavit vel non, in Estate of Patrick J. Conway, deceased.</p> <p>Appeal from decree of register of wills refusing an issue devisavit vel non. Before Sando, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the issue and dismissed the appeal. Elizabeth Gilroy, Administratrix of the Estate of Mary McAndrew, deceased, appealed.</p> <p>Error assigned was the decree of the court'.</p>

Appeal, No. 7, Jan. T., 1917, by plaintiffs, from judgment of C. P. Lackawanna Co., March T., 1914, No. 652, on verdict for defendant, in case of Louis Edelman by his next friend, George Edelman, and George Edelman v. James L. Connell. Trespass to recover damages for personal injuries. Before Maxwell, P. J., specially presiding. From the record it appeared that the street on which defendant was driving was in an icy and slippery condition.

Appeal, No. 26, Jani T., 1917, by Pennsylvania Coal Company, from order of C. P. Lackawanna Co., Oct. T., 1916, No. 1292, fixing valuation of coal lands, In re Assessment and Yalu'ation of Coal Land of Pennsylvania Coal Company in Borough of D.unmore, Lackawanna County. Appeal from valuation of coal lands at triennial assessment by the Boa.rd of Revision and Appeal. Before Newcomb, J. The opinion of the Supreme Court states the facts.

<p>Appeal, No. 119, Oct. T., 1916, by Joseph McMurray, from decree of O. C. Allegheny Co., March T., 1916, No. 271, reversing decree of register of wills granting letters of administration In re Estate of William McMurray, deceased.</p> <p>Appeal from decree of register of wills granting letters of administration.</p> <p>The facts appear in McMurray’s Est., 256 Pa. 233.</p> <p>The Orphans’ Court reversed the decree of the register of wills and directed that letters of administration be granted to Edward M. Reis. Joseph McMurray appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Constitutional law — Constitution of Pennsylvania, Article III, Sec. 7, and Article I, Sec. 10 — Local and special laws — Eminent domain — Capitol park — Act of June 16,1911, P. L. 1087 — Statutes —Advertisement—Validity — Affidavit of defense — ■Insufficient ■averments.</p> <p>1. The Act of June 16, 1911, P. L. 1027, providing for the appointment of the Capitol Park Commission for the purpose of obtaining for the Commonwealth for park purposes such land as the commission may desire within certain boundaries, is not a local and special law in violation of Article III, Section 7, of the Constitution of Pennsylvania.</p> <p>2. In an action of ejectment for land appropriated by the Capitol Park Commission under the Act of 1911, the affidavit of defense set up (1) that the act was invalid for the reason'that it had not been advertised, although it-appeared that it had passed both branches of the legislature, and had been approved by the governor; (2) that the act was a local and special law in violation of Article III, Section 7, of the Constitution; and (3) that the taking was in violation of Article I,. Section 10, of the Constitution in that no compensation had been paid or secured for the land in question. The act made an appropriation of two million dollars for the purpose of carrying its provisions into effect, and provided that a writ of mandamus might issue for paying any judgment which an owner might recover against the Commonwealth for the taking of his land. There was no averment that the amount appropriated was insufficient to cover the value' of the lands taken. The defendant had appeared before the commission in regard to the value of the land taken and his appeal from the valuation fixed by the commission was pending. Held, judgment was properly entered for the plaintiff for want of a sufficient affidavit of defense.</p> <p>Practice, Supreme Court — Paper boohs — Statement of questions involved — Assignments of error.</p> <p>3. Where the statement of questions involved occupies a whole page, there is a flagrant disregard of Rule 34 of the Supreme Court.'</p> <p>4. Assignments of error complaining of the judgment of the court below are defective where they fail to set out the judgment in totidem verbis.</p>

<p>Appeal, No. 177, Oct. T., 1916, by plaintiffs, from judgment of O. P. Allegheny Co., April T., 1914, No. 73, on verdict for defendants in case Commonwealth of Pennsylvania ex rel. Leonard S. Alexovits, John Hornak, Charles Barnes, Stephen F. Cherepy, Clement Ihrisky, Thomas Hafner, Peter Palko, Joseph Matejko, Stephen Uhrin, Paul Wodicks, Michael Batovic, Andrew Lenert, George J. Skodol and Ignac Gessay v. Albert Mamatey, John Kulamer, Joseph Durish, Michael Belusar, Joseph Hill, Stephen Kucma, George Hlatky, John Koza, George -Stacho, George Hricovsky, Andrew Kovac, Charles Dubosh, John A. Hrabovsky, Paul Lovas, John A. Gimesky, Michael Lancik, Joseph Vasok, L. A. Zavitovsky, Stephen Vanek, John Fedor, John S. Karabin, George A. Bjel, Ivan Bielek and John Zajrn.</p> <p>Quo warranto to test the right of defendants to hold office as directors of a corporation of the first class. Before Davis, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The jury found a verdict for the defendants upon which judgment was entered. Plaintiffs appealed.</p> <p>Error assigned was in refusing plaintiffs’ motion for judgments, o. v.</p>

<p>Practice, Supreme Court — Petition for appointment of viewers— Exceptions — Dismissal—Appeal—Interlocutory order.</p> <p>1. No judgment .or decree is final that does not terminate the litigation between the parties to the suit.</p> <p>2. A decree dismissing exceptions to a petition for the appointment of viewers to assess damages sustained by taking of property by a water company under its power of eminent domain is not final and an appeal therefrom will he quashed.</p>

<p>Corporations — Executive officer — President—Trusts and trustees —Negligence—Delivery of bond — Embezzlement by president — Liability of trustee — Nonsuit.</p> <p>A corporate mortgage to secure the bond issue of a water company provided that the bonds should be executed by the president and secretary, should then be delivered to the mortgage trustee, a trust company, to be certified and afterward be returned to the treasurer of the water company. After execution of certain of the bonds by the president and secretary, the secretary, who was also the treasurer, at the suggestion of the president made out a receipt as treasurer for them and handed the bonds and receipt to the president. The president sent the receipt and bonds to the trust company for certification with directions to send the bonds to a certain bank for delivery to him. The trustee, relying upon the treasurer’s receipt, sent the bonds to the bank designated, and the president of the water company subsequently obtained possession of them and embezzled them. The water company brought an action against the trust company to recover the value of the bonds. The court entered a compulsory nonsuit which it subsequently refused to take off. Held, no error.</p>

Appeal, No. 236, Jan. T., 1916, by defendant, from judgment of C. P. No. 5, Philadelphia Co., June T., Í914, No. 966, on verdict for plaintiff, in case of Jachim Lapinco v. Philadelphia & Reading Railway Company. Trespass to recover damages for personal injuries. Before Baldrige, J., specially presiding. The opinion of the Supreme Court states the-facts. Verdict for plaintiff for $4,500 and judgment thereon. Defendant appealed.

<p>Suretyship —Default of principal — Payment by one surety — Subrogation — Contribution—Preferences.</p> <p>1. Except as to rights and property connected with the surety-ship obligation, the claim of a cosurety for contribution is no higher than that of any other claim, and subrogation, which is founded upon equity and benevolence, will never be granted- to the prejudice of other rights of equal or higher rank.</p> <p>2. It is not the liability to pay but actual payment to the creditor which raises the equitable right in a surety to be subrogated to his cosurety’s remedies.</p> <p>3. Claims against an insolvent estate which were in existence at. the date of an assignment for the benefit of creditors have at least as strong an equity as one thereafter arising, even though the obligation out of which the latter aróse antedated the assignment.</p> <p>4. One of two sureties on the bond of a treasurer of a corporation made a loan of $5,000 to the corporation on the latter’s note. Subsequently such surety made an assignment of his property, including the $5,000 note, to a trustee for the benefit of his creditors. A receiver, appointed for the corporation, filed an account and an auditor was appointed to make distribution. The treasurer of the company in the meantime had defaulted and the corporation brought suit against the treasurer and his two sureties. The estate of the second surety paid the amount of the default. The executors of the second surety contended that they were entitled to be subrogated to the right of the other surety for the amount of the dividend awarded by the auditor on the $5,000 note, in preference to the other surety’s general creditors whose claims arose before the treasurer defaulted. Held, that as the dividend on the $5,000 note was an entirely separate matter from the suretyship obligation, the estate of the surety who had paid the principal debt was merely a general creditor of the other surety and had no preference in such dividend over the latter’s other creditors.</p> <p>Practice, Supreme Court — Appeals—Decree—Harmless error.</p> <p>5. Where the lower court makes a general decree sustaining exceptions to an auditor’s report and the controlling exceptions are well taken and a proper decree is entered, a reversal will not be granted merely because the decree seemingly sustains some minor exceptions which are not well founded, or because of minor inafccuracies in the opinion filed with the decree.</p>

<p>Appeal, No. 307, Jan. T., 1916, by defendant, from judgment of C. P. Delaware Co., Dec. T., 1915, No. 11, on verdict for plaintiff, -in case of Malden S. Williams v. Philadelphia Rapid Transit Company.</p> <p>Trespass to recover damages for. personal injuries. Before Johnson, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $1,754 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury, rulings on evidence, answers to points, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p> <p>— The evidence of plaintiff’s mental impairment at the time when he executed the lease was not sufficient to warrant its submission to the jury: Laird v. Union Traction Co., 208 Pa. 574; Spritzer v. Penna. R. R. Co., 226 Pa. 166; Baranski v. Wilmsen, 56 Pa. Superior Ct. 153; Penna. R. R. Co. v. Shay, 82 Pa. 198; DeDouglas v. Union Traction Co., 198 Pa. 430.</p> <p>The fact that the release was given on Sunday will not avoid its effect if it appear that the contract was an executed one: Shuman v. Shuman, 27 Pa. 90; Steyert’s Estate, 10 Montg. County 75; McKee v. Verner, 239 Pa. 69; Dobbins v. Mackinnon et al., 3 Lehigh 25; Baker v. Lukens, 35 Pa. 146.</p> <p>— There was sufficient evidence produced by the plaintiff not only to show fraud in obtaining the release, but also to show the mental incapacity of the plaintiff at the time of the execution thereof: McCaw v. Union Traction Co., 205 Pa. 271; Clayton v. Consolidated Traction Co., 204 Pa. 536; Pidcock et al. v. Potter, 68 Pa. 342.</p> <p>As the plaintiff was not capable of executing the release at the time when he signed it, which was Sunday, it was not material that payment was subsequently made : Vanormer v. Osborne Machine Co., 255 Pa. 47; Clayton v. Consolidated Traction Co., 204 Pa. 536.</p>

<p>Appeal, No. 147, Oct. T., 1916, by plaintiffs, from judgment of O. P. Allegheny Co., July T., 1914, No. 529, on directed verdict for defendant, in case of Lewis Stanton, Charles E. Hutchison, Percy A. Hutchison, Mactier Warfield, Mary Warfield, Frank L. Armstrong, Hugh Hazlett, Gilbert A. Hazlett, Nellie A. Hazlett, Frank H. Moss, Frances M. Hays, Virginia G. Adams, Harold Hibbs Buchman, Alice Worthington, Francis S. Adams, Dallas Hutchison, Sophia C. Hutchison, Mary Hutchison, Eleanor A. Hutchison, Matilda D. Hutchison, Nellie A. Allen, Henry S. Habersham and Bessie S. Habersham, his wife in the right of Bessie S. Habersham; Herman Bronson, and Lizzie H. Bronson, his wife in the right of Lizzie H. Bronson; Frederick S. Worthington and Mabel H. Worthington^ his wife in the right of Mabel H. Worthington; William P. Chamberlain and Eleanor B.' Chamberlain, his wife in the right of Eleanor B. Chamberlain; William C. Gray and Mabel K. Gray, his wife in the right of Mabel K. Gray; Harry Wells and Katherine H. Wells, his wife in the right of Katherine H. Wells; Blanche W. Jackson, and Frederick A. Dale and Carrie K. Dale, his wife in the right of Carrie K. Dale, Appellants, v. City of Pittsburgh, a Municipal Corporation.</p> <p>Ejectment for a parcel of land in the City of Pittsburgh. Before Davis, J.</p> <p>■The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiffs appealed.</p> <p>Errors assigned were rulings on evidence and in directing a verdict for defendant.</p> <p>— The Pittsburgh" Playground Association must have held the property either with the consent of the defendant or against its consent, and adversely to it. If it held against its consent, the defendant must strictly prove it, as an adverse holding is never presumed. If the holding was with the defendant’s consent there is a violation of the condition of the grant and the plaintiff is entitled to recover. .</p> <p>An ordinance of a municipality authorizing the use of the property for playground purposes is not a condition precedent to the plaintiffs’ right to recover, especially where the acts of the city officials in permitting the playground association to occupy the property have been ratified : In re Philadelphia Parkway, 250 Pa. 257; Dunlap v. Erie Water Com’rs, 151 Pa. 477; Oakley v. Luzerne Borough, 25 Pa. Superior Ct. 425; Tarentum Boro. v. Moorehead, 26 Pa. Superior Ct. 273; Shiloh Street, Appeal of McCormack et al., 165 Pa. 386; Bohan v. Avoca Borough, 154 Pa. 404; Bagaley v. Pittsburgh & Lake Superior Iron Co., 146 Pa. 478.</p> <p>The presumption is that the structures upon the property were erected with the consent of the defendant’s duly authorized officials.</p> <p>As the defendant has not offered any evidence, the presumption is not rebutted: City of Dixon v. Allemand et al., 136 Ill. App. 449; Village of Jefferson v. Chapman, 127 Ill. 438 (20 N. E. Repr. 33); Chicago v. Spoor & Webb, 91 Ill. App. 478; Chicago v. Brophy, 79 Ill. 277; Chicago v. Johnson, 53 Ill. 91; Gilpatrick v. Biddeford, 51 Me. 182; Knox County v. Ninth Nat. Bank, 147 U. S. 91; Gonzales v. Ross, 120 U. S. 605; Weyanwega v. Ayling, 99 U. S. 112; Rankin et al. v. Hoyt, 45 U. S. 327.</p> <p>— Courts will not declare forfeitures of vested estates, except in very plain cases. In the present case the title is held by the city in trust for its citizens and the courts will not declare a forfeiture by reason of unauthorized acts of public officials: Birmingham Public School District v. Sharpless, 27 Pa. Superior Ct. 630; Pickle v. McKissick, 21 Pa. 232; Straub v. Pittsburgh, 138 Pa. 356; Spring v. Pittsburgh, 204 Pa. 530.</p>

<p>Appeal, No. 160, Jan. T., 1916, by plaintiff, from order of C. P. No. 4, Philadelphia Co., March T., 1914, No. 3349, refusing to take off nonsuit, in case of Mary M. Bickley v. Philadelphia and Beading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before Carr, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge entered a compulsory nonsuit, which the court in banc subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was in refusing to take off the nonsuit.</p> <p>— The plaintiff was a passenger; the defendant owed her the highest degree of care and if an accident resulted to her from its instrumentalities, the presumption of defendant’s negligence arose: Powell v. Philadelphia & Reading Ry. Co., 220 Pa. 638; Rhoads v. Cornwall & Lebanon R. R. Co., 48 Pa. Superior Ct. 310.</p> <p>The blow received by the plaintiff could not have had any other presumptive origin than in the operations of the defendant within its train shed.</p> <p>The workman on the platform of the car took upon himself the blame for plaintiff’s accident; and he was presumptively an employee of the defendant: Madara et ux. v. Shamokin & Mt. Carmel Electric Ry. Co., 192 Pa. 542.</p> <p>The circumstances of plaintiff’s injury bring it within the rule that when injury results from the means and appliances of transportation, the carrier is presumed to be negligent: Fox v. Philadelphia, 208 Pa. 127; Fern v. Penna. R. R. Co., 250 Pa. 487; Booth v. Dorsey, 208 Pa. 276; Ahern v. Melvin, 21 Pa. Superior Ct. 462.</p> <p>— In a case of this character the burden of proving negligence is upon the plaintiff: Bradley v. Lake Shore & Mich. Southern Ry. Co., 238 Pa. 315; Wall v. Lit, 195 Pa. 375; Green v. Balto. & Ohio R. R. Co., 214 Pa. 240; Ginn v. Penna. R. R. Co., 220 Pa. 552.</p>

<p>Appeal, No. 178, Jan. T., 1917, by Robert J. Love, Administrator of the Estate of Rebecca N. Love, deceased, from decree of O. C. Philadelphia Co., Oct. T., 1898, No. 150, dismissing exceptions to adjudication, in estate of John McCauley, Deceased.</p> <p>Exceptions to adjudication. Before Lamorelle, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions in an opinion by Dallbtt, P. J. Robert J. Love, Administrator of the Estate of Rebecca N. Love, deceased, appealed.</p> <p>Error assigned was in dismissing the exceptions.</p> <p>— It may be laid down as an established principle of the law, too clear to be contradicted, that wherever it is possible so to do by any fair reading of the will, the estate therein given will be held to be vested rather than contingent: Manderson v. Lukens, 23 Pa. 31; Chew’s App., 37 Pa. 23; Womrath v. McCormick, 51 Pa. 504; McClure’s App., 72 Pa. 414.</p> <p>In order to divest a vested estate, the contingency upon which its existence is made to depend must have completely happened: Chew’s App., 37 Pa. 23; Chess’s App., 87 Pa. 362; Snyder’s Est., 180 Pa. 70; Carstensen’s Est., 196 Pa. 325.</p> <p>— «-The remainder to the children of testator’s sister, Anna Jane White, is contingent, and vested only in such of the children as survived the life tenant, Eliza Jane McCauley: Mulliken v. Earnshaw, 209 Pa. 226; Rosengarten v. Ashton, 228 Pa. 389; Cascaden’s Est., 153 Pa. 170; Rudy’s Est., 185 Pa. 359.</p>

<p>Appeal, No. 229, Jan. T., 1916, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., March T., 1916, No. 1184, on directed verdict for defendant, in case of Kajman Magier v. Philadelphia and Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries. Before McMichael, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were rulings on evidence and in directing a verdict for defendant.</p>

<p>Wills — Powers—Construction—Intention — Buie against perpetuities— Tested and contingent remainders — Partition — Bill in e quity — Dismissal.</p> <p>1. Where an active trust is created to pay. the income to one for his life, it will not be defeated because of the failure or invalidity of the gift over of the corpus of the estate.</p> <p>2. The rule against perpetuities is directed against future contingent interests and has no reference to vested estates.</p> <p>3. A spendthrift trust may be created for a woman as well as for a man.</p> <p>4. A testator dying in 1846 devised certain land to his son James for life with remainder in trust for the latter’s children and their heirs, giving James power to revoke by will all the trusts created by the testator and to appoint such new or other trusts as to him might seem proper. James died in 1870 leaving a will wherein he referred to the power given him in his father’s will, revoked all the trusts thereby created, and devised the estate in trust to pay an annuity to his wife for life and the balance of the income to his son William, and declared that on William’s death the balance of the property should be held in trust for William’s children in such shares and for such estates as they would be entitled to if William died intestate. The will then gave William power to appoint the shares of his children “in trust for the sole and separate use of said children or issue of said deceased child and under such limitations and restrictions as in his discretion he may deem best, so as to secure the same to the said, child or issue of deceased child for his, her or their sole and separate use, maintenance and enjoyment.” William died in 1877 leaving three daughters. By his will he directed that the share of each of his children be held in trust for them until they reached the age of twenty-one years and created sole and separate use trusts' and spendthrift trusts for said daughters, and directed that in the event 'of the death of any of the children her share should be paid to her issue during the life of the surviving children, or in ease there should be no issue, then to the survivors for life, and upon the death of the last survivor of the children, then to their issue, The last testator William was bom before the death of his grandfather. In a suit in equity for a partition of the real estate, brought by the purchaser of the interest of one of the daughters of William, plaintiff contended that the sole and separate use trust failed because his grantor had not married and was not in contemplation of marriage at the time of the creation of the trust, that the spendthrift trust was void because not within the scope of the power of appointment conferred upon William by the will of his father, and that the gift was in violation of the rule against perpetuities. Held, (1) that the sole and* separate use trusts were void because the daughters were not married, or in contemplation of marriage at the time of the creation thereof; (2) that the creation of spendthrift trusts for the daughters was within the scope of the power of appointment conferred upon William; (3) that the interests of the daughters’ vested upon the death of James, the creator of the power; (4) that, although the gift to the issue of the daughters violated the rule against perpetuities, the gifts for the lives of the daughters were separable and were not affected by the invalidity of the gift of the remainders; (5) that, as valid spendthrift trustg were created for the daughters, the property could'not be partitioned and the bill was properly dismissed.</p>

<p>Appeal, No. 337, Jap. T., 1916, by defendant, from final order of C. P. No. 4, Philadelphia Co., Sept. T., 1914, No. 3491, dismissing exceptions to report of referee, in case of O. W. Keteham v. The Land Title and Trust Company.</p> <p>Assumpsit on a policy of title insurance.</p> <p>Exceptions to report of Francis B. Bracken, Esq., referee. Before Finletter, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Defendant appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p> <p>— The work of demolishing the old building was not a visible commencement of work upon the ground within the meaning of Section 13 of the Mechanics’ Lien Act of June 4, 1901, P. L. 431: Kansas Mortgage Co. v. Weyerhaeuser, 48 Kansas 335 (29 Pac. Repr. 153); Brooks v. Lester et al., 36 Md. 65; Kelly & Martin v. Rosenstock & Stein et al., 45 Md. 389; Hagenman v. Fink, 19 Pa. C. C. 660.</p> <p>— The mortgagee was put upon inquiry by the fact that the old building had been demolished: Speer v. Evans, 47 Pa. 141; Quein v. Smith, 108 Pa. 325; Swank v. Phillips, 113 Pa. 482; Reynolds v. Miller, 177 Pa. 168; Bruns v. Braun et al., 35 Mo. App. 337; Whitford v. Newell, 84 Mass. 424; Pratt et al. v. Nakdimen et al., (Ark.) 138 S. W. Repr. 974; McCristal v. Cochran, 147 Pa. 225; Pennock et al. v. Brown, 14 W. N. C. 43; Craig v. Commercial Trust Co., 211 Pa. 7; Denkel’s Est., 1 Pearson 213; Parrish & Hazard’s App., 83 Pa. 111; Central Trust Co. v. Cameron Iron & Coal Co., 47 Fed. Repr. 136.</p>

<p>Appeal, No. 1, Oct. T., 1917, by plaintiffs, from decree of O. P. Clarion Co., May T., 1915, No. 3, dismissing bill in equity for the forfeiture of an oil and gas lease, in case of D. B. Smith in his own right, and D. B. Smith, Reid Smith, C. B. Smith and Bessie Smith Fleeger, intermarried with Thomas Fleeger, husband and heirs at law of Ella C. Smith, deceased, v. The Peoples Natural Gas. Company, a corporation.</p> <p>Bill in equity to enforce the forfeiture of an oil and gas lease. Before Sloan, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Contracts — Sales — Executed and executory sales — Delivery— Title — Course of dealing — Trial without jury — Findings of fact— Appeals — Practice, Supreme Court.</p> <p>1. There may be a bargain and sale of goods sufficient to transfer the title and thus to support an action for goods bargained and sold without such transfer or delivery as would amount to a .transfer of possession.</p> <p>2. Findings of fact by the trial judge in an action at law in a case tried without a jury, to the effect that a sale of goods was completed at the time they were billed to the vendee, have the effect of a verdict of a jury and will not be set aside if there is evidence to support them.</p> <p>3. In an action for goods sold and delivered to defendants it appeared that defendants had guaranteed the account of plaintiff at a national bank. By means of the credit thus obtained plaintiff purchased goods of an English merchant and the goods were shipped to the bank at which plaintiff’s account had been guaranteed together with the bills of lading with drafts attached. The bank accepted the drafts, and charged the amount thereof to the plaintiff’s account and plaintiff gave a trust receipt whereby he agreed to hold the merchandise in trust as the property of the bank with liberty to sell the same for the account of the bank and deliver the proceeds to the bank to be applied against the acceptance of the draft. Subsequently plaintiff billed certain of the goods to defendants, and defendants were permitted to withdraw the goods from the warehouse upon payment of the duty. Part of the goods included in such shipment were paid for by defendants. About the same time plaintiff assigned his claim against the defendant for the unpaid balance of the price for value to a third person, to whose use the action was brought. Defendants had notice of the assignment. Plaintiff’s account at the bank became in arrears and the bank sold the goods in the warehouse and applied the proceeds to pay plaintiff’s indebtedness to it. Defendants contended that there was no executed contract of sale and that they never had received title to the goods. The trial judge, who sat without a jury, found that the title passed to the defendants at the time when the goods were billed to them and entered judgment for plaintiff. This finding of fact was sustained by the evidence and the judgment was affirmed.</p>

<p>Corporations — Directors—Directors acting as officers — Compensation — Alleged fraud — Ratification—Equity—Contracts—Resolution by corporation.</p> <p>1. The directors of a corporation have the right to serve the company in the capacity of officers or employees and to receive compensation for such services, if legally employed by the company.</p> <p>2. Directors of a corporation may contract with agents or employees of their corporation who are likewise directors and, though always subject to close scrutiny and voidable for fraud or overreaching, such contracts are not ipso facto void, but will be sustained if for ,a fair and reasonable consideration.</p> <p>3. Where a board of directors votes excessive salaries to certain of its members who are also officers or employees of the corporation, even though such action may' subsequently be ratified at a stockholders’ meeting, the action of the board, when called into question by a minority stockholder, is subject to review by a court of equity and, if the finding of the latter tribunal is that the salaries in question are exorbitant, it may determine the value of the services rendered by the officers or employees in question and restrain the corporation from paying in excess thereof.</p> <p>4. While a corporation which has voted salaries to its officers or employees may be restrained from paying any sums on account of the amount voted in excess of what the court shall deem to be reasonable, the court has no power to restrain the payment of such salaries in future years when the circumstances may change.</p> <p>5. A manufacturing corporation,, having seven directors, voted salaries to three of. its executive officers who were also directors at $400 per month each. Each of these officers performed special services to the company which were valuable and resulted in financial success. Such officers had threatened to resign and the directors voted to give them from year to year, in addition to their salaries, 50% of the annual net gain on' the stock of the company after the regular 8% dividend had been set aside, and gave extra annual compensation to certain employees who were not parties to the suit. The directors interested voted for the resolution. The action of the directors was ratified by a large majority vote at a stockholders’ meeting. A dissenting stockholder who had voted against the ratification brought a bill in equity to restrain the directors of the corporation from paying the additional bonus to the directors. The lower court found that $12,000 per annum was reasonable compensation for each of the three officers’ services, and restrained defendants from making full payment under the directors’ resolution, but allowed two of the defendants each one-third of 50% of the net profits of the current year in addition to $12,000, in order to compensate them for their failure to receive $12,000 per annum in previous years, but restrained defendant corporation from paying to such officers more than $12,000 per annum in future years. The finding as to the proper compensation of the directors for the current year was not assigned as error. Held, that the payments to the directors for the current year should be limited to the amount found reasonable by the .court and could not include compensation for passed years; that the court was not justified under the facts in prohibiting payment of any extra compensation to the third officer and three employees who were not parties; and had no authority to enjoin payments in future years when the circumstances might change; and the record was remitted with directions to modify the decree.</p> <p>6. Exceptional cases may arise where, contemplating a continuance of an ascertained state of facts, and guarding their decree accordingly, judicial tribunals may determine compensation to be paid in the future, but there is nothing in the case at bar to take it out of the general rule.</p> <p>7. Where a corporation by resolution fixes extra compensation for its officers, no formal contract is required to be entered into between the corporation and the officers to fix the liability of the corporation for payment; such a resolution when acted upon is in itself sufficient evidence of the fixed understanding between the corporation and its employees.</p>

<p>Appeal, No. 228, Jan. T., 1916, by defendant, from judgment of C. P. Schuylkill Co., March T., 1916, No. 318, for plaintiff on case stated, in case of County of Schuylkill v. Fred J. Wiest, County Treasurer.</p> <p>Assumpsit for money had and received to plaintiff’s use. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for plaintiff on the case stated. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p> <p>— The services performed by defendant under the Act of April 17, 1913, P. L. 85, providing for the better protection of wild birds and game and requiring hunters to procure licenses, imposes separate and distinct duties on the county treasurer, for which he is entitled to be paid in addition to his salary: Allegheny County v. Harris, 62 Pitts. L. J. 409.</p> <p>— Under Article XIY, Section 5 of the Constitution and the Act of March 31, 1876, P. L. 13, the treasurer of a county having more than 150,000 inhabitants is not entitled to receive fees in addition to his salary for any additional duties which he performs: McCleary v. Allegheny County, 163 Pa. 578; Philadelphia v. McMichael, 208 Pa. 297; Pittsburgh v. Anderson, 194 Pa. 172; Schuylkill County v. Reese, 249 Pa. 281.</p>

<p>Appeal, No. 283, Jan. T., 1916,-by defendant, from order of C. P. Lackawanna Co., Nov. T., 1912, No. 710, dismissing exceptions to report of referee, in case of Edmund R. Griffin, Gertrude Groat, John Griffin, Emma E. Koehler, Clara S. Smith, Benjamin Griffin, and Clarence Griffin v. The Delaware and Hudson Company.</p> <p>Trespass for removing coal from land claimed by plaintiffs.</p> <p>Exceptions to report and supplemental report of referee. Before Edwards, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Defendant appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p> <p>— Plaintiffs were never in possession of the locus in quo and could not maintain an action of trespass quare clausum fregit at common law for the removal of the coal; they are, therefore, precluded from maintaining this action.</p> <p>The Practice Act of May 25,1887, P. L. 271, abolishing distinctions between actions of trespass, did not affect the right to the remedy: Alderman v. Way, 4 Yates 218; King & Schoenberger v. Baker, 25 Pa. 186; McCausland v. Fleming, 63 Pa. 36; Collins v. Beatty, 148 Pa. 65; Wilkinson v. Connell, 158 Pa, 126; Lillibridge et al. v. Lacka. Coal Co., 143 Pa. 293; Busch v. Calhoun, 14 Pa. Superior Ct. 578; Vanderslice v. Donner, 26 Pa. Superior Ct. 319.</p> <p>— Under the Act of May 25, 1887, P. L. 271, the plaintiffs were entitled to bring the suit: Edwards v. Woodruff, 25 Pa. Superior Ct. 575; Plummer v. Hillside Coal & Iron Co., 160 Pa. 483; Fisher v. Morris, 5 Wharton 358; Zion Church v. Light, 7 Pa. Superior Ct. 223; Darrah v. Kadison, 51 Pa. Superior Ct. 133; Irwin v. Patchen, 164 Pa. 51; Baker v. King, 18 Pa. 138; Wilkinson v. Connell, 158 Pa. 126; Enterprise Transit Co. v. Hazelwood Oil Co., 20 Pa. Superior Ct. 127; Miller v. Zufal, 113 Pa. 317; Olewine v. Messmore, 128 Pa. 470.</p>

<p>Appeal, No. 302, Jan. T., 1916, by defendants, from order of C. P. Wayne Co., June T., 1916, No. 26, awarding mandamus, in case of The Supervisors of Manchester Township v. The Commissioners of Wayne County.</p> <p>Petition for mandamus. Before Searle, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing awarded the mandamus as prayed for. Defendants appealed.</p> <p>Error assigned was in. awarding the mandamus.</p> <p>—It was the duty of the defendants to repair the road in question.</p> <p>The Acts of April 20, 1905, P. L. 237, and April 25, 1907, P. L. 104, were not revived by the repeal of the Act of May 10, 1909, P. L. 499, by the Act of March 15,1911, P. L. 21: Commonwealth ex rel. v. Van Bowman et al., 35 Pa. Superior Ct. 410; Winters v. Koontz, 60 Pa. Superior Ct. 134; Rentner v. Bauer, 3 Kansas 503; Gage v. Currier et al., 21 Mass. 399; People ex rel. Twitchell v. Blodgett, 13 Mich. 127; Hyatt v. Taylor, 42 N. Y. 258; People v. Morrell, 21 Wend. (N. Y.) 563; Slack et al. v. Jacobs et al., 8 W. Va. 612; Beardstown v. City of Virginia et al., 76 Ill. 34; Smith & Davis v. Thursby, 28 Md. 244; Henshaw v. Foster et al., 26 Mass. 312; Wolcott v. Wigton et al., 7 Ind. 44; Greencastle Township v. Black, 5 Ind. 557; Newell v. People ex rel. Phelps, 7 N. Y. 9; Wilson v. Downing, 4 Pa. Superior Ct. 487.</p> <p>— By the Act of May 10,1909, P. L. 499, repealing the Act of March 15, 1911, P. L. 21; the Acts of April 20, 1905, P. L. 237, and April 25, 1907, P. L. 104, were revived : Winters v. Koontz, 60 Pa. Superior Ct. 134; Directors of the Poor v. Wrightsville, York and Gettysburg R. R. Co., 7 W. & S. 236; Somerset Township Supervisors v. Somerset County Commissioners, 251 Pa. 164; Allegheny County Commissioners’ Case, 61 Pa. Superior Ct. 591.</p>

<p>Appeal, No. 304, Jan. T., 1916, by defendant, from order of C. P. Wayne Co., June T., 1916, No. 28, awarding mandamus, in case of The Supervisors of Sterling Township v. The Commissioners of Wayne County.</p> <p>Petition for Mandamus. Before Searle, P. J.</p> <p>The facts appear in Manchester Township Supervisors v. Wayne County Commissioners, 257 Pa. 442.</p> <p>The court on final bearing awarded tbe mandamus as prayed for. Defendants appealed.</p> <p>Error assigned was in awarding tbe mandamus.</p>

<p>Evidence — Ancient documents — Real property — Dedication—Adverse possession — Public parks — Condemnation proceedings — Estoppel.</p> <p>1. A map, found in the office of a corporation which had conveyed land shown upon the map, is admissible in evidence as an ancient document where it is shown to be more than thirty years old, is to all appearances genuine and has been acted upon.</p> <p>2. A citizen acquires no rights against the public by the maintenance of a fence or building in a highway and the same rule applies to a public park.</p> <p>3. Where a building has been erected upon land which had been dedicated to the public for use as a public park, the passage of a municipal ordinance providing for the condemnation of the land occupied by such building does not estop the municipality from claiming the property, especially where no viewers were appointed ' and nothing further was done in reference to the ordinance.</p> <p>4. A canal company owning a tract of land in a village laid the land out in lots, and left a triangular piece for public use as a park. The purchaser of a lot abutting upon the park fenced in a part of the land which had been dedicated to the public. The encroachment existed for more than thirty years. Such property owner was proceeding to make additions to a building so as to extend it over the land lying in the park when he was prevented by the city officials. He brought a bill in equity to restrain the city officials from interfering with his additions to the property. It appeared that the city had passed an ordinance years before, providing for the condemnation of the land occupied by plaintiff, but no viewers were appointed and no further steps were taken. Plaintiff claimed that the city was estopped by such action to allege that the land was not his and also that he had acquired title by adverse possession. Held, the lower court did not err in dismissing the bill.</p>

<p>Eminent domain — Railroad companies — Damages—Measure of damages■ — Farm land — Adaptability for other purposes — Evidence —Admissibility—Rental value — Cross-examination — Selling price of other properties — Charge—Failure to request.</p> <p>1. The rule in ascertaining the measure of damages in eminent domain proceedings is that the jury may consider, not only the present use and condition of the property, but the use to which it was adapted at the time of taking, the prospective advantages at that time attaching to it, a present value for any purpose to which it could reasonably be anticipated the land would in the future be applied, excluding, however, speculative values.</p> <p>2. At the trial of an appeal from an award of viewers in condemnation proceedings where it appeared that the land condemned was suburban property and that a number of similar tracts in the neighborhood had been plotted and sold as building lots, the trial judge properly instructed the jury that “the witnesses gave their reasons for arriving at the conclusion that this was not only a very valuable piece of land as a farm; that it was available for town lots or plots in larger or smaller tracts; that within the last twenty-five or thirty years a good many plots of land have been laid out and have been sold at various prices, and basing their opinions upon the sale of lands thereabouts and of the possible future growth of the community, they arrived at the figures to which they have testified. This is a proper way of arriving at a conclusion under the facts of this case, and it is for you to take into consideration their accuracy and whether their opinions are entitled to the weight plaintiff asks to be given to them.”</p> <p>3. Where in such case the court charged the jury that they might consider “different elements that enter into the- damages such as the inconvenience in getting from one part of the farm to the other; the destruction of the living spring; the damage to the orchard; the cutting off of the view; the use of the old road as compared with the new one which was put in by the defendant company, and in this way to add a total, as it were, of the entire amount of damage caused to the farm taken as a whole,” but had previously charged the jury to find the damages to the farm in its entirety as it was at the time of taking, the contention that the jury were permitted to fix the specific sum for each element separately and to reach a verdict by aggregating the several amounts was without merit.</p> <p>4. Where in such case the court-gave a brief outline of the case; enumerated the contentions of each party and briefly summarized the testimony of the expert witnesses relating to the question of damages; instructed the jury that they were to find the damages to the farm in its entirety at the time of taking, and briefly referred to the question of credibility of the witnesses, leaving to the jury the determination of the amount of the verdict, defendant was not in a position to complain that in view of the volume of the testimony the comments of the court thereupon were inadequate, in the absence of a request at the trial for a more extended charge, especially where no points were submitted asking for specific instructions.</p> <p>5. While the rental value of property may be a proper element to consider in forming an opinion of the market value where the property is adaptable only for a certain purpose, such evidenced not admissible where it appears that the property is adaptable for a number of pui^oses so that its rental value is not commensurate with its market value.</p> <p>6. Where in such case, plaintiff and another witness testified that the value of the property for farming purposes did not represent the actual value of the land, but that it had a greater value for other purposes, such as a suburban residence, or for building sites, and that its value was beyond that of the ordinary farm intended exclusively for agricultural purposes, it was not reversible error to refuse to permit defendant on cross-examination to question the witnesses as to the rental value of the property when devoted exclusively to farming purposes.</p> <p>7. Where a witness testifies to part of a transaction, the opposing party may insist upon the complete transaction being shown, even though such evidence be otherwise inadmissible.</p> <p>8. Where in such case defendant was permitted, without objection, to cross-examine witnesses for plaintiff concerning other sales of real estate in the vicinity and the prices obtained therefor, the plaintiff was properly permitted, on redirect examination of plaintiff’s witnesses, and on cross-examination of defendant’s witnesses, to ask them to state the selling prices of other similar properties in the neighborhood.</p>

<p>Wills — Codicils—Residuary clauses — Construction—Intention — Revocation — Next of hin — Intestacy.</p> <p>1. An heir a,t law cannot be disinherited except by express words or necessary implication; every doubt must be resolved in favor of the heir at law.</p> <p>2. The fact that a testatrix revoked a residuary clause in favor of a legatee, whereby a gift over to the next of kin of testatrix took effect, did not preclude such legatee from sharing in the gift to the next of kin, of which he was one; the fact that testatrix did not desire such person to have the entire residuary estate did not change his status as next of kin, or deprive him of the right to share with the others as such.</p> <p>3. A testatrix bequeathed the residue of her estate to a nephew for his life and after his death to his children, but should he die without leaving children, then to testatrix's next of kin, in accordance with the intestate laws, excluding a brother to whom advancements had been made. The nephew died before the testatrix, leaving a child. Thereafter testatrix by codicil revoked “all portions of......said will by which any property or the use thereof was given or bequeathed to said (nephew) or to his children or child, should any survive him......All the terms and conditions of said will are to be and remain in full force except as revoked or modified by this codicil.” Held, the child of such deceased nephew was entitled to share in the residue of the estate as one of the next of kin of the testatrix, although the express gift to him had been revoked.</p>

<p>Negligence — Railroads—Children—Crossings—Warning of approach — Contributory negligence — Nonsuit.</p> <p>1. In those eases where it has been held that it is within the province of the jury to pass upon conflicting statements in the plaintiff’s own testimony, the conflicting statements were on the question of contributory negligence where the burden of proof is on the defendant. If such conflicting testimony refers to a subject as to which the burden of proof is upon the plaintiff, the court should not submit evidence to the jury which will merely enable them to guess at a fact in favor of a party who is bound to prove it.</p> <p>2. Where in an action against’a railroad company for injuries to a child upon defendant’s tracks, the accident is alleged to have occurred at a permissive crossing, the burden of proof is upon plaintiff to establish the fact that the accident happened at such crossing, and if plaintiff’s own testimony on that question is so contradictory and conflicting as to present to the jury no basis for a finding, except a mere guess, a nonsuit is properly entered.</p> <p>3. The object of signals is to give notice that a train is about to occupy the track, but when the engine has passed and the cars are following one after the other, no further warning is necessary as to a person beside the train, and if such person walks into the train in broad daylight he cannot successfully contend that there was negligence in failing to warn hina.-</p> <p>4. Where the child in such case was nine years old, it seems that the question of contributory negligence would be for the jury.</p>

<p>1Wills — Testamentary capacity — Hallucinations and delusions— Evidence — Contracts to malee a will — Mutual wills — Consideration —Evidence—Sufficiency.</p> <p>1. In determining the right to an issue devisavit vel non the test is whether after a review of the whole testimony the trial judge would sustain a verdict against the will as being in accord with the manifest weight of the evidence.</p> <p>2. At the hearing of a petition for an issue devisavit vel non where it was alleged that testatrix was subject to hallucinations and delusions at the time when she executed it, but where the subscribing witnesses, decedent’s physician and an alderman of the ward who had transacted decedent’s business for many years and another reputable witness testified that decedent’s mental condition was good at the time when she executed the will, and, it further appeared that decedent had furnished the data to the scrivener who drew the will; that he had read the will to her; that her conversation was clear and natural; her hearing and sight good; and that she knew what she was doing, what property she possessed, and to whom her estate was to go, it was not error to refuse the issue, although there was some evidence that decedent had on several occasions in answer to greetings of friends on the street indicated a weak intellect and loss of memory..</p> <p>3. Where in such ease contestants alleged that decedent and her husband had made mutual wills whereby the property should ultimately pass to contestants in consideration of contestants’ agreement to take care of decedent and her husband during their lives; that they had performed their part of the contract for a period of two years, until decedent’s husband died; that decedent left them without cause, and died three weeks thereafter, having first made the will which was admitted to probate; and when contestants offered, in support of their contentions, evidence of declarations of decedent and her husband that they had mutually agreed to leave all their property to contestants if they would look after them during their lives, together with wills executed by decedent and her husband which bore earmarks of mutuality, in which the contestants were provided for after the death of decedent and her husband, an issue should have been granted to determine whether the agreement was made as alleged by contestants.</p> <p>4. A person may enter into a valid contract to dispose by will of his property, real or personal, in a -particular way and such will is irrevocable and the contract will be specifically enforced.</p>

<p>Appeal, No. 12, Jan. T., 1917, by defendant, from judgment of C. P. Lancaster Co., August T., 1916, No. 104, for plaintiffs, on trial -without a jury, in case of Samuél R. Wills and the Farmers Trust Company of Lancaster, Executors of the will of Mary L. Baer, Deceased, v. J. Fred. Fisher.</p> <p>Assumpsit to recover the purchase-price of real estate sold by plaintiffs to defendant. Before Landis, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge who tried the case without a jury, found for plaintiff for $14,579.90 and entered judgment on the findings. Defendant appealed.</p> <p>Errors assigned were the findings and judgment of the court.</p>

<p>Appeal, No. 103, Jan. T., 1916, by plaintiff, from final order of C. P. Northampton Co., July T., 1914, No. 28, refusing to take off a compulsory nonsuit, in case of Nazareth Foundry and Machine Company v. Frank J. Marshall, William B. Marx, and Josephine W. Marx.</p> <p>Assumpsit on a bond. Before McKeen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiff appealed.</p> <p>Errors assigned were rulings on evidence and in refusing to take off the nonsuit.</p> <p>— The bond made the obligors liable for the debts of the Marshall Company and they could relieve themselves of liability only by showing a compliance with the conditions. If no money was received by the Marshall Company, the condition could not be met and the obligors remained liable.</p> <p>Under any possible theory, of construction of the bond, the plaintiff showed a breach of condition and was entitled to go to the jury: Equitable Trust Co. v. National Surety Co., 214 Pa. 159.</p> <p>The testimony being that the engine when f^een by the-witness Firth was in the same condition as when it came back, Firth should have been allowed to describe what he saw. The weight of his testimony was for the jury.</p>

<p>Appeal, No. 15, Jan. T., 1917, by defendant, from judgment of C. P. Franklin Co., Sept. T., 1913, No. 110, on verdict for plaintiff, in case of The Mutual Loan and Savings Association of Chambersburg v. National Surety Company.</p> <p>Assumpsit on a surety bond. Before Gillan, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for f5,988.30 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury, answers to points, and in refusing to direct a verdict for defendant.</p> <p>— The false statements in the application avoided the contract: Tarentum National Bank v. Equitable Trust Co. of Pittsburgh, 223 Pa. 328.</p> <p>The association failed to give the surety company immediate notice of the default, required by the bond: Bartels Brewing Co. v. Employers’ Indemnity Co., 251 Pa. 63; Woolverton as Pres. of the New York Transfer Co. v. Fidelity & Casualty of N. Y., 190 N. Y. 41; Hood v. Fahnestock, 8 Watts 489; Patterson’s Est., 234 Pa. 128; Bexar Bldg. & Loan Assn. v. Lockwood et al., 54 S. W. Repr. 253; Vogemann et al. v. American Dock & Trust Co. (131 Appellate Div. 216), 198 N. Y. 586.</p>

<p>Replevin — Property seized by State officers — State veterinarian— Act of April S, 1779, 1 Sm. L. IfflO, Sec. 2.</p> <p>1. Under Section 2 of the Act. of April 3, 1779, 1 Sm. L. 470, a writ of replevin cannot lawfully be issued for the recovery of property seized by a public official, and where such writ has been issued against a State official, it will, on motion, be quashed.</p> <p>2. Where the State veterinarian, acting on behalf of the State Livestock Sanitary Board, broke into plaintiff’s premises and seized cattle suspected of having tuberculosis and removed the cattle and retained them in his possession, a writ of replevin was improperly issued for the recovery of such cattle, and was properly quashed on motion of defendant. In such case plaintiff’s remedy, if any, was by an action of trespass.</p>

<p>Appeal, No. 364, Jan. T., 1916, by plaintiff, from order of C. P. Susquehanna Co., Aug. T., 1916, No. 190, dissolving writ of foreign attachment in case of Stamford Rolling Mills Company v. Jacob L. Lipton, doing business under the name of the • Acme Iron & Steel Company, defendant, and Erie Railroad Company, Garnishee.</p> <p>Buie to show cause why a' foreign attachment should not be dissolved. Before Denney, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dissolved'the attachment. Plaintiff appealed.</p> <p>Error assigned, among others, was in dissolving the attachment.</p> <p>— The Act of June 9, 1911, P. L. 838, Section 24, does not apply to an interstate shipment : Georgia, Fla. & Ala. Ry. Co. v. Blish Milling Co., 241 U. S. 190; North Pacific Ry. Co. v. Wall, Admr., 241 U. S. 87.</p> <p>The goods having been stopped in transit by the shipper, the defendant, and the garnishee having allowed it to be done, the goods were attachable in his hands: Landa v. Holck & Co. et al., 129 Mo. 663 (31 S. W. Repr. 900); Cooley v. Minn. Transfer Ry. Co., 53 Minn. 327 (55 N. W. Repr. 141) ; Rosenthal v. Weir, 170 N. Y. 148 (63 N. E. Repr. 65); Pontifex v. Midland Ry. Co., L. R. 3 Q. B. Div. 23; Penna. R. R. Co. v. American Oil Works, 126 Pa. 485; Jenks v. Fulmer, 160 Pa. 527.</p> <p>— The Act of June 9, 1911, Section 24, P. L. 838, applies to interstate shipments whether actually in transit or stopped. Its effect is not to interfere with interstate commerce but is rather a law enforcing noninterference, and as such is valid. It is the duty of the carrier to deliver a consignment to the consignee or its endorsee only upon surrender of the bill of lading: Louisville & Nashville R. R. Co. v. Kentucky, 183 U. S. 503.</p> <p>The bill of lading is a contract governing the rights and obligations of the shipper and carrier, although the service of carrying has been completed and the goods are held by the carrier strictly as warehouseman: Cleveland, Cincinnati, Chicago & St. Louis Ry. Co. v. Dettlebach, 239 U. S. 588.</p>

<p>Appeal, No. 48, Jan. T., 1917, by The Fidelity and Casualty Company of New York, Insurance Carrier, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1916, No. 1475, affirming award of the Workmen’s Compensation Board in case of Mahala Bolden v. Austin G. Greer, Jr.,.and the Fidelity and Casualty Company of New York.</p> <p>Appeal from award of Workmen’s Compensation Board. Before Wessel, J,</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court affirmed the award. The Fidelity and Casualty Company of New York appealed.</p> <p>Error assigned was in affirming the award.</p>

<p>Wills — Construction — Devise to-married woman — Creation of seym-ate use trust — Intention.</p> <p>Where a testatrix devised her residuary estate to her daughter “to be for her sole separate and exclusive use notwithstanding any coverture free and clear of interruption intervention or control of her Husband or any Husband she may have and without the said property and Estate shall be held and used and enjoyed by (the daughter) in all respects and in as full and ample a manner notwithstanding her coverture as if she were sole and unmarried,” the main intent was that a trust should be created for the daughter’s separate and exclusive use, and a petition to vacate the appointment of the trustee filed during the lifetime of the daughter’s husband, was properly dismissed.</p>

Appeal, No. 376, Jan. T., 1916, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., March T., 1915, No. 2059, for defendant non obstante veredicto in case of Elizabeth H. Miller, Administratrix of the Estate of Franklin C. Miller, deceased, v. West Jersey and Seashore Railroad Company. Trespass to recover for death of plaintiff’s husband. Before Martin, P. J. The facts appear by the opinion of the Supreme Court. Verdict for plaintiff for $25,000.

Appeals, Nos. 387 and 388, Jan. T., 1916, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1915, No-. 3395, on verdicts for plaintiffs in case of James M. McGinley, by his next friend and father Neil McGinley, and Neil McGinley v. Philadelphia & Beading Bailway Company. Trespass to recover damages for personal injuries. Before Audenried, P. J. From the record it appeared that on September 16, 1914, three boys decided to- go to Tamaqua to seek work.

<p>Appeal, No. 389, Jan. T., 1916, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1901, No. 2302, on directed verdict for plaintiff in case of John S'. Wood v. John W. Carson.</p> <p>Assumpsit for unpaid rent; Before McMichael, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for the plaintiff by direction of the court for $1,877.60, and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in giving binding instructions for the plaintiff..</p> <p>— The existence of a contemporaneous parol agreement, under the influence of which a contract is signed, may always be shown when the enforcement of the paper is attempted in disregard of the parol stipulation, and this is so although such oral stipulation was not omitted from the writing through fraud, accident or mistake: Clinch Valley Coal & Iron Co. to use of Grove & McCall, Trustees, v. Willing, 180 Pa. 165; Ferguson v. Rafferty, 128 Pa. 337; Wolfe v. Arrott, 109 Pa. 473; Gandy v. Weckerly, 225 Pa. 285.</p> <p>— Defendant’s evidence was insufficient to establish a contemporaneous oral agreement on the question of water supply and repairs.</p> <p>There is no implied warranty that the premises are fit for the purposes for which they are rented: Hazlett v. Powell, 30 Pa. 293.</p> <p>The failure of the landlord to fulfil his express agreement to put the premises in repairs is no defense to an action for rent: Tibbits v. Percy & L’Amoraux, 24 Barb. (N. Y.) 39; Watts v. Coffin, 11 Johns. (N. Y.) 495.</p> <p>A landlord’s failure to keep his express covenant to repair does not justify the tenant in abandoning the premises.</p>

<p>Wills — Vested and contingent interests — Construction—Trusts —Life estates.</p> <p>Where a testator bequeathed his estate in trust for the benefit of a niece for her life, and after her death to pay the income to her five children in equal shares and to the children of any of said niece’s children who might be deceased, such children to take their parent’s share, until the death of the last of the said niece’s children, and then to distribute the principal between said niece’s grandchildren and the issue of any grandchildren who might be deceased, per stirpes, and one of the children of the niece died during her mother’s lifetime without issue, her interest in the income terminated, and her executor was not entitled to such decedent’s share of the income accruing between the time of her death and the period of distribution of the principal.</p>

<p>Appeal, No. 84, Jan. T., 1917, by William Dunlop Disston, from decree of O. C. Philadelphia Co., April T:, 1916, No. 369, dismissing exceptions to adjudication in Estate of William Disston, Deceased.</p> <p>Exceptions to adjudication. Before Dallett, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the exceptions to the adjudication, in an opinion by Gummey, J.</p> <p>William Dunlop Disston appealed.</p> <p>Errors assigned, among others, were in dismissing the exceptions to the adjudication.</p>

<p>Appeal, No. 38, Jan. T., 1917, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., June T., 1915, No. 855, entered for defendant on case stated in case of William McCoach, Treasurer for the County of Philadelphia, .v. James B. Sheehan, Register of Wills of Philadelphia County.</p> <p>Assumpsit for commissions. Before Audenried, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The lower court entered judgment for the defendant. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 75, Jan. T., 1917, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1910, No. 4247, refusing to take off compulsory nonsuit in case of The Land Title and Trust Company, Administrator d. b. n. c. t. a. Estate Bridget Loughran, Deceased, Substituted Plaintiff, v. Joseph Mc-Garrity.</p> <p>Assumpsit for the recovery of money loaned. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The lower court entered a compulsory nonsuit, which it subsequently refused to take off.</p> <p>Error assigned was the refusal to take off the nonsuit.</p> <p>— The paper is an executory contract and not barred by statute: Dayton v. Cunnison, 9 Pa. 347; Stevenson v. Kleppinger, 5 Watts 420; Patterson v. Graham, 164 Pa. 234.</p>

<p>Appeal, No. 392, Jan. T., 1916, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1915, No. 3089, on verdict for plaintiff in case of Luther Joseph v. Morris Naylor.</p> <p>Trespass to recover damages for the debauching of plaintiff’s wife and the alienation of her affections. Before Barratt, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for the plaintiff for $3,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were the charge to the jury, and in refusing to withdraw a juror.</p> <p>— The trial judge erred in refusing to withdraw a juror.</p> <p>Plaintiff was not entitled to recover exemplary damages : Philadelphia Traction Co. v. Orbann, 119 Pa. 37; Wright v. Philadelphia Rapid Transit Co., 236 Pa. 132, and Adams v. Beaver Valley Traction Co., 41 Pa. Superior Ct. 403.</p> <p>— Plaintiff was properly permitted to recover exemplary damages: Durning v. Hastings, 183 Pa. 210, and Cornelius v. Hambay, 150 Pa. 359.</p>

<p>Beal property — Party walls — Foundations — Lateral support — Laches — Equity technical trespass — Act of May 7, 1855, P. L. k6h-</p> <p>1. In. a suit in equity to compel defendant, an adjoining owner, to remove such portions of an underpinning party wall constructed by defendant as encroached on plaintiffs land to a greater extent than the ten inches allowed by the Act of May 7, 1855, P. L. 464, and to compel defendant to close certain openings and windows in the new portion of the party wall constructed by defendant, it appeared that on the lots occupied by plaintiff and defendant respectively there were originally two three-story buildings, having a party wall between them; that plaintiff had constructed a lining wall against the foundation wall to afford additional support to the interior construction of his building; that thereafter defendant had removed the three-story building on its lot and erected a thirteen-story office building. In excavating for the foundations defendant had built an underpinning wall beneath the party wall, which extended eighteen and one-half inches upon plaintiff’s ground. Defendant also built a steel frame and a lining wall against the party wall; the girders of the steel frame extended into the party wall, but were not supported by it; above the party wall defendant built a curtain wall, which joined the party wall. The lower court found that the underpinning wall was constructed in accordance with the best practice; that it was necessary to support the party wall and protect plaintiff’s building; and that it encroached on plaintiff’s premises no further than was actually necessary to support the building and the lateral pressure of the ground; that no use was made by defendant either of the underpinning wall or the party wall above the surface in connection with its building, which was constructed independently of such wall, and rested entirely on its own foundation, laid on defendant’s ground. The court also found that the extending of the girders into the party wall and the extension of the curtain wall over the party wall, without using it as a support for defendant’s wall, was not such use of the party wall as entitled the plaintiff to relief, and dismissed the bill. Held, no error.</p> <p>2. Where in such case it appeared that the work was done openly and in accordance with plans on file in the Bureau of Building Inspection, and that plaintiff made no complaint of the encroachment until fourteen years after the completion of defendant’s building, the plaintiff could not thereafter be permitted to question the necessity of the encroachment, which at most was only a technical trespass, not the subject of equitable interference. '</p> <p>3. Where no use for the purpose of support was made by defendant, either of the party wall or of the underpinning wall, and where it further appeared that the entire party wall from the roof of plaintiff’s building to the bottom of the underpinning wall could be removed at any time without affecting the stability of defendant’s building, the mere fact that there was a physical attachment between the buildings, due to the filling in of the space between the party wall and plaintiff’s wall, and to the fact that one girder protruded two inches into the party wall, was not sufficient to fasten upon the party wall and the underpinning wall as a whole the character of a parly wall, and subject defendant to the liabilities and restrictions governing the use of party walls.</p> <p>Practice, Supreme Qourt — Appeals—Equity—Findings of fact.</p> <p>4. Findings of fact of the lower court supported by evidence will not be interfered with by the Supreme Court in the absence of clear error.</p>

<p>Equity — Contracts—Beal property — Specific performance — Tenants-in-common — Minors—Written contracts — Variation ~by parol —Quardicms—Jurisdiction, 0. C.</p> <p>1. Oue tenant in common is without authority to hind his co-tenants by an agreement concerning the use or control or affecting the title of the joint property.</p> <p>2. A written contract cannot be varied by. parol, in the absence of an allegation that anything was omitted from the writing by fraud, accident or mistake, or that such parol matter was the inducement for the execution of the contract.</p> <p>3. A plaintiff in equity does not recover on proofs alone, but on his pleadings and proofs; he must; aver in his bill all matters, essential to entitle him to recover, and neither implied allegations nor proof of matters not alleged can be made the basis for equitable relief.</p> <p>’ 4. A bill in equity to restrain defendant from making a conveyance of property to a third person, not a party to the bill, is defective for want of parties; the rights of such third person would be directly affected by such decree and he is entitled to be heard.</p> <p>5. The Common Pleas Court, sitting in equity, has no power to restrain the conveyance of certain real estate in which minors have an interest, where it appears that the sale has been approved by the Orphans’ Court and that the decree prayed for would in effect modify the decree of the Orphans’ Court, approving the sale.</p> <p>6. In a suit in equity to restrain defendants from conveying land to a third person, without incorporating into the conveyance certain restrictions as to the use of, the property, it appeared that plaintiff had purchased property in the neighborhood from the same parties, subject to certain restrictions and that, at the time of the conveyance, it was agreed between him and the agent of defendants that the property adjoining his should be sold subject to the same restrictions. The agreement, however, was not signed by one of the parties having an interest in the premises, and two of the persons interested in the property were minors. Thereafter defendants agreed to sell certain land adjoining plaintiff’s to a third person subject to the approval of the Oiphans’ Court. No restrictions were included in the agreement. The Orphans’ Court approved the sale of the minors’ interest, and the defendants were about to convey. The person to whom the conveyance was to be made was not a party to the bill. Held, (1) that the alleged agreement was defective because not signed by all the parties interested in the property; (2) that the alleged verbal agreement of the agent to put restrictions on all other conveyances of all other adjacent land owned by defendants could not be considered, in the absence of allegation or proof that such agreement had been omitted from the contract between plaintiff and defendant by fraud, accident or mistake, or that it was the inducement for the execution of the contract of purchase by plaintiff; (3) that the bill was defective for want of parties in that the person with whom the agreement of sale had been made was not a party; (4) that as the sale of the minors’ interest had been approved by the Orphans’ Court, the Common Pleas Court could not enter a decree which would in effect modify a decree of the Orphans’ Court, and the bill was dismissed without prejudice to the right of the plaintiff to apply to the Orphans’ Court for amendment of its decree in conformity with the agreement and intention of the parties if the sale had not been consummated.</p>

<p>Appeal, No. 62, Jan. T., 1917, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Sept. T., 1915, No. 3478, on verdict for plaintiff in case of Joseph Leotti v. Philadelphia Macaroni Company.</p> <p>Trespass to recover damages for personal injuries. Before Brega, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $11,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to strike off plaintiff’s statement of claim, in refusing defendant’s motion for the withdrawal of a juror, and refusing defendant’s motion for judgment n. o. v. •</p> <p>— The statement of claim should have been stricken off..</p> <p>There is no evidence of defendant’s negligence: Sterner v. S. Morgan Smith Co., 233 Pa. 27.</p> <p>— The court properly refused to strike off! plaintiff’s statement of claim.</p> <p>Plaintiff having been injured while resting upon the assurance of his employer that he would see to his safety, is entitled to recover: Crimmins v. Farquhar, 250 Pa. 569; Powell v. S. Morgan Smith Co., 237 Pa. 272.</p>

<p>Equity — Municipalities—Railroads—Contracts—Illegality—Borrowing capacity — Eminent domain — Freight yard purposes — Ordinances— Appropriation — Injunction — Taxpayers’ and property owners’ hill — Multiplicity—Laches—Acts of April 8, 181fi, B• L. 272; March 17, 1869, P. L. 12; June 9,187i, P. L. 282, and June 11,1879, P. L. 180.</p> <p>1. The rule of laches applies to a taxpayers’ or property owners’ bill to enjoin a municipality from carrying out a contract involving a public improvement about to be constructed without legal authority.</p> <p>2. A city will not be enjoined from carrying out a contract for municipal improvements on the ground of insufficient borrowing capacity, where the bill in equity was not filed until all the money had been either actually or in effect raised by the city and a large part thereof actually expended on the improvement.</p> <p>3. The chancery powers of the courts in the County of Philadelphia to issue injunctions against tEe erection or use of any public works is materially modified by the Act of April 8, 1846, P. L. 272, which prohibits the exercise of such power until the questions of title and damages shall be submitted and finally decided by a common law court.</p> <p>4. Where a municipality and a railroad, acting under the authority of the Acts of June 9,1874, P. L. 282, and March 17, 1869, P. L. 12, contract in relation to the appropriation of land for yard or other facilities required to meet present and future needs created by a general scheme for railroad relocation, the elevation of tracks and other improvements of great magnitude, a court will not interfere with, the exercise of the combined judgment of the contracting parties as to the necessity and extent of such taking in the absence of strong and conclusive evidence to the effect that the taking was arbitrary and not for legitimate railroad purposes.</p> <p>5. A bill in equity filed by taxpayers and property owners of the City of Philadelphia averred that in pursuance of a city ordinance the city and the defendant railroad companies entered into a contract for railroad relocation and improvement under which the city increased the municipal debt beyond the then legal borrowing capacity; that no sufficient prior appropriation was made to meet the obligations thereby incurred, as required by the Act of June 11, 1879, P. L. 130; and that the lands intended to be taken were greatly in excess of the needs of the railroad companies for the present and many future years. Complainants prayed that the ordinance and contract bo declared void, that the city and the railroad be enjoined from spending any money or otherwise proceeding thereunder, and that the railroads be restrained from taking any lands under condemnation proceedings in pursuance of said ordinance and contract. It appeared that the purpose of the development was the abolition of railroad grade crossings, the location of well situated sites for municipal' piers and docks and the unifying and improving of one railroad system in conjunction with others in the city. It appeared that the injunction was not applied for until the expiration of two years and three months from the date of the ordinance, and until after more than $2,000,000 had been actually raised and appropriated and a large part of it Spent by the city, and a loan for the balance of the estimated cost, amounting to nearly $9,000,000, had been authorized by councils and approved by the people at a special election. The project had been given widest publicity, but no previous attack had been made on it in the courts. There was no competent evidence that the amount of land to be taken was in excess of probable future freight yard requirements of the defendant companies. The lower court dismissed the bill. Held, no error.</p> <p>6. Not decided whether a taxpayers’ and property owners’ bill is had for multiplicity.</p>