Volume 259 — Pennsylvania State Reports

<p>Appeal, No. 146, Oct. T., 1916, by defendants, from decree of C. P. Westmoreland Co., Equity Docket, No. 891, awarding an injunction, in case of John Kicinko, John Martin, John Mikulaninitz, Hritz Fendya, Vasil Svreda, Mike Panco, George Juhas, Paulina Skirpan, Joe Dry, Petra Dankanich, Paul Chertisky, John Fecko, Andy Miklovs, Vasil Valenter, Vasil Hardoby, Andy Halko, Joe Hulick, Vasil Sandala, George Hertnick, Vasil Lucanick, Andy Kocan, George Shuma, Jr., and Rev. Paul Ruttkay, members and Pastor of the Greek Catholic Church of the Assumption of the Blessed Virgin Mary; and the Greek Catholic Church of the Assumption of the Blessed Virgin Mary — John Kicenko, John Martin, John Mikulaninitz, Hritz Fendya, Vasil Svereda, Petro Dankanich, and John Fecko, Trustees, v. John Petruska, Mike Kohut, Nik Kerestan, Mike Shurkay, George Shuma, Pet Ratica and George Mike, and Rev. V. Levkanich, members and Pastor of the Russian Orthodox Greek Catholic St. Mary’s Church; and the Russian Orthodox Greek Catholic St. Mary’s Church —John Petruska, Mike Kokut, Nik Kerestan, Mike Skurkay, George Shuma and George Mika, officers.</p> <p>Bill in equity for an injunction. Before Doty, P. J., Copeland, P. J., specially presiding, and McConnell, 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>Mines and mining — Coal leases — Accounting — Construction — . Forfeiture.</p> <p>1. “Miners’ weight” as used in a coal lease is not a fixed, unvarying quantity of mine run material, but is such quantity of the same as operators and miners may from time to time agree as being necessary or sufficient to produce a ton of prepared coal.</p> <p>2. Where a coal lease provided “miners’ weight to he the standard” of each ton of coal mined, and thereafter the successors in title of the lessors brought a hill in equity against the lessees for an accounting for coal mined, the court properly decided that the accounting should be on the basis of the miners’ weight fixed upon by the operators and miners during the accounting period, not upon the basis of the miners’ weight as it existed at the time of the execution of the lease.</p> <p>Drake et al. v. Lacoe et al., 157 Pa. 17, followed.</p> <p>3. In such case, a provision in the lease “that sufficient pillars of coal shall be left to support the roof over the gangways and the usual protection of the mines generally,” was for the protection of the colliery, not of the surface, and the successors of the lessors, though owning the surface, were not entitled to an injunction to restrain the removal of coal from the pillars, especially after all reason to apprehend surface disturbance by the removal of such ^coal had ceased to exist.</p> <p>4. In such ease a usage that the owner of the surface was entitled to one-third of all the pillar coal, could not be set up to defeat a grant of all the coal in the mine, and the successor of the lessor was not entitled to restrain the removal of such coal or to have a forfeiture of the lease declared because of such removal.</p>

<p>0ontracis — Municipal contracts — Township of second class— Water supply — Acts ultra vires — Estoppel—Act of May 26, 1907, P. L. 281.</p> <p>1. Townships of the second class are not properly to be regarded as municipal corporations, nor do they possess the implied powers of such corporations. They are only involuntary quasi corporations standing low in the scale of corporate existence and they can exercise only such powers as are expressly conferred lipón them by statute.</p> <p>2. One who contracts with the representatives of a municipality, especially with those having the very limited powers of -a quasi corporation such as a township, is bound to know the limitations of the powers of those officials in executing the contract.</p> <p>3. In an action brought by a water supply company against a township of the second class to recover for the rental of water hydrants, installed under a contract entered into between the water company and the supervisors of the township, in pursuance of the Act of Nay 25, 1907, P. L. 231, providing that, upon the petition of the owners of a majority of the lineal feet frontage along a highway, the supervisors may contract with water companies for the placing of hydrants along said highway, evidence to show that the petition fo'r the installation of the hydrants was not signed by a majority of the owners abutting upon the highway was erroneously excluded as immaterial, and the trial judge erred in directing a verdict for plaintiff.</p> <p>4. In such case the supervisors had no authority to provide water supply for fire protection, except upon the terms and conditions set forth in the statute; the plaintiff was bound to know and recognize the limitations upon the powers of the supervisors and could not invoke the principle of estoppel after the work had been done so as to charge the township with liability therefor, where it appeared that the township as an organic unit received no benefit from the work, hut certain individuals only, were benefited.</p> <p>5. It seems that, in such case, if the suit had been brought against the abutting owners who received the benefits, they would be estopped from asserting the invalidity of the contract, it having been performed in so far as they were concerned.</p> <p>Mr. Justice Erazer dissents.</p>

<p>Appeal, No. 107, Jan. T., 1917, by plaintiffs, from judgment of C. P. Northumberland Co., Dec. T., 1910, No. 243, on directed verdict for defendant in case of David Camp, George Robertson, and Richard Irvin, now for the use of Nicholas Dursky v. C. Elmer John, Administrator of Estate of Hugh McDonald, deceased, with notice to Ann McDonald, John McDonald, Hugh McDonald, Mary Jane Welsh, nee McDonald, now intermarried with William Welsh, and William Welsh, her husband, James D. Dorsey, minor child of Annie Dorsey, nee McDonald, deceased, late intermarried with James Dorsey, and James Dorsey, her husband', terre-tenants.</p> <p>Scire facias sur judgment. Before Moser, J.</p> <p>The opinion of the Supreme Court- states the case.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiffs appealed.</p> <p>Error assigned, inter alia, was in directing verdict for the defendants.</p>

<p>Negligence — Automobiles—Railroads — Contributory negligence —Guest—Testing danger.</p> <p>1. It cannot be said as a matter of law that a guest or passenger in a vehicle is guilty of negligence because he has done nothing. In many such cases the right degree of caution may consist of inaction. In situations of great and sudden peril, meddlesome interference with those having control, either by physical act or by disturbing suggestions and needless warnings, may be exceedingly disastrous in results.</p> <p>2. In an action to recover damages for personal injuries sustained by the plaintiff in a collision between plaintiff’s automobile and a railroad train, it appeared that plaintiff, a clergyman, was riding in the automobile as a guest of one of his parishioners who had sent the automobile for him. The automobile was driven by the chauffeur of the parishioner. The collision was the result of joint negligence in the operation of the train and the automobile. Both the plaintiff and the chauffeur were familiar with the streets over which they were to pass and both knew of the railroad crossing where the accident occurred. There was evidence that plaintiff when about 100 feet from the railroad track heard a noise which seeiiied to him the noise of an approaching train; that the driver was then going about fifteen or twenty miles an hour; that plaintiff called to him to stop — which call the driver said he did not hear — and the next thing plaintiff knew the automobile was in collision with the car. The lower court entered a compulsory non-suit. Held, error, and that the case was properly for the jury.</p>

<p>Appeal, No. 141, Jan. T., 1917, by George S. Eizer, Benjamin H. Eizer, Albert A. Eizer, Mary F. Eizer and Florence M. Kunst, by G. H. A. Kunst, their attorney in fact, from order of O. O. Fayette Co., June Court, 1916, No. 53, dismissing exceptions to adjudication in Estate of Elizabeth B. Springer, deceased.</p> <p>Exceptions to adjudication. Before Work, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court dismissed the exceptions to the adjudication. George S. Eizer et al. appealed.</p> <p>Errors assigned, inter alia, were in dismissing the exceptions, the refusal of the court to surcharge the executor for failure to make annual statements, for failure to charge himself with interest, for failure to charge himself with promissory notes given by J. V. Thompson and not collected, and in allowing executor commissions.</p>

<p>Negligence — Railroads —• Ejection of passenger at dangerous place — Damages—Compensatory and exemplary damages ■ — Pleadings — Statement of claim — Amendment—Departure—Measure of damages — Present worth — Instructions—Failure to request more specific instructions.</p> <p>1. In an action of tort, damages necessarily following as a natural and probable result of the injury may be proved without special averment as defendant will be presumed to be aware of such consequences of his conduct, and hence cannot plead surprise when proof of such injury is made. Damages of a special nature and not the usual consequences of the wrong complained of, however, must be specially averred that defendant may be informed of the claim and given an opportunity to prepare his defense; but where the action is for injuries to the person the jury may consider, without special averment, pain and suffering, expense incurred for medical treatment and loss of time caused by inability to work at the usual occupation of the injured person, inasmuch as these are the natural and usual results of an injury.</p> <p>2. In an action to recover damages for death of plaintiff’s husband due to the alleged negligence of the employees of defendant railroad company in ejecting deceased from its car at a dangerous place, in consequence of which he was killed by a passing train, defendant complained of the admission in evidence of matters tending to show loss of earnings and profits of deceased as a farmer as a basis for compensatory damages, where plaintiff’s statement claimed exemplary and punitive damages only. The statement first contained an averment that plaintiff claimed damages “in the sum of twenty-five thousand dollars ($25,000) and in addition to the above sum claims punitive damages from said defendant company, upon a cause of action whereof the following is a statement.” Succeeding paragraphs set forth the manner in which deceased met his death, and that his loss of life was due to defendant’s employees “wilfully, wantonly, knowingly and unlawfully” ejecting him from its train at a dangerous place. Plaintiff also averred deceased’s occupation was that of a farmer and that he “derived great gains and emoluments from tilling the soil and kindred industries, a large portion of which went to the maintenance and support of her and her family,” of which she had been deprived through the negligence of defendant. Plaintiff also claimed to recover for funeral expenses, and for the loss of the companionship of her husband. The concluding paragraph stated: “Wherefore, and by reason of which, she claims damages in the sum of twenty-five thousand dollars as exemplary damages, and in addition thereto she claims punitive damages for the wilful, wanton, reckless, careless and unlawful conduct” of defendant’s employees. Plaintiff admitted the terms “exemplary damages” and “punitive damages” were synonymous in practice, and claimed the word “exemplary” was inserted in the statement by mistake for the word “compensatory.” No offer to amend in this respect appears to have been made but, in dismissing defendant’s motion for a new trial, the court below held the testimony offered as to loss of earnings was fully covered by the paragraph of the claim relating to the occupation of deceased and that the limitation in the concluding paragraph did not necessarily prevent the introduction of. evidence to show compensatory damages. Defendant did not plead surprise and case was tried on above theory. Held, no error.</p> <p>3. The error in the statement might have been amended at any time since it would not set up a new cause of action barred by the statute of limitations. The cause of action being the wrongful act of negligence resulting in the injury to the plaintiff, an amendment merely adding an additional item of claim for damages issuing out of the same wrongful act is not a departure.</p> <p>4. In such case, in charging on the measure of damages based on the earning's of the deceased, the court said that in fixing the amount of earnings the jury should consider the age, health, ability and disposition to labor and the habits of living of deceased and referred to the testimony touching the extent of his farming occupation. Held, that although the instruction in this respect was brief it was not erroneous and in the absence of a request from defendant for further specific instructions, did not constitute reversible error.</p> <p>5. In such case, in instructing the jury on the question of the present worth of future earnings, the court charged: “So far as compensation depends or is estimated upon future earnings or accumulations, such earnings or accumulations are to be anticipated and 'capitalized and their present worth determined. That is, what lump sum paid now would be their equivalent?” Held, that the instruction, although brief, was a correct-statement of the law and that in the absence of a request for more extended charge, did not constitute reversible error.</p> <p>Negligence — Railroads—Evidence—Res gestw — Conversation— Rulings by trial judge — Questions considered on appeal.</p> <p>6. In negligence cases where the actual occurrence is confined to a brief space of time, the res gestas of the transaction is accordingly limited, and tbe period when declarations become merely a narrative of a past occurrence ordinarily begins immediately after the accident. If the transaction is complete and ended, its ending marks the limitation of the res geste of the event and declarations subsequent thereto become merely narrative of past matters.</p> <p>7. In an action against á railroad company to recover damages for death of plaintiffs husband through alleged negligence of defendant’s employees in ejecting him from its Car at a dangerous place, the admission of evidence over defendant’s objection of a conversation between the conductor of the train and the witness shortly after deceased had been ejected and after the train had departed from the next station after receiving and discharging passengers at that stop, was reversible error.</p> <p>8. Where plaintiff’s evidence as to a conversation after the accident was objected to as not being pertinent and plaintiff’s counsel urged its competency because of “its happening so close to the time” and immediately afterwards the trial judge overruled defendant’s objection, it cannot be urged on appeal that the question of res geste was not considered or ruled in the court below.</p>

<p>Cities — Councilmen—Disclosure of interest — Quo warranto — Act of June %7, 1913, P. L. 568.</p> <p>A writ of quo warranto issued under the provisions of Section 9, Article IV of the Act of June 27, 1913, P. L. 568, Sec. 9, providing for the ousting of councilmen who should vote without disclosing any personal or private interest in the measure voted upon, was held properly quashed, where all that appeared was that the eouncilmen in question had voted for a tenant as janitor of a municipal building and that the tenant was at the time of the election indebted to him for renit.</p>

<p>Appeal, No. 123, Jan. T., 1917, by defendant, from sentence of Oyer and Terminer Cumberland Co., Feb. Sessions, 1917, No. 17, on verdict of murder of the first degree in case of Commonwealth of Pennsylvania v. James Anthony.</p> <p>Indictment for murder.</p> <p>The main facts appear in the following portion of the charge by Sadler, P. J.:</p> <p>Now, you will consider all that was said as to these contradictions, whether they were as to essential facts, and whether the explanations made by Bigler, Walton and Hamlet on the stand were satisfactory. As we remember, they all admitted that they had stated that they did not know the man, but explained that they meant thereby that they did not know the name, and not that they did not identify Anthony. You will remember, however, what was said.</p> <p>In rebuttal, the Commonwealth offered evidence to show that Anthony’s story was untrue. Daniel Huntsberger and William Rynard were called. They had charge of the bar on the nineteenth. They swore that Anthony, did not come there and purchase liquor as he testified.</p> <p>Joseph A. Weibley and Holmes Koser testified that Anthony was on the six o’clock trolley car in the evening, leaving for Carlisle. If they are correct, they contradict in part not only Anthony, but the story of Hall and Milly Eoss.</p> <p>Mr. Whitaker testified that he was not intoxicated, as he claimed, when he came to the commissary at one o’clock, and that his appearance and conduct so showed.</p> <p>Clifford Woodson testified to seeing Anthony out at the water closet at the time Ury was removed on the wagon from the pump house, and .Charles Hamlet testified to Josey Jones’ statement to him that she had told James not to go down to the pump house, but that he' had said he would not stand for any one attacking one of his color.</p> <p>Briefly then, gentlemen, this is the testimony in chief, in defense and in rebuttal. I have not attempted to give it all, but you will remember every part.</p> <p>There is a wide conflict. It will be for you to test the facts by considering the circumstances which surround the case — the possible interest of the parties — their credibility — the corroboration of the statements which they made, and to give credence where it belongs.</p> <p>Now it seems to us that certain clear facts stand out prominently, though the facts are all for you.</p> <p>First. Ury is dead. Second. He died as a result of a blow on the head delivered by a blunt instrument. Next, that Hamlet and Ury had been fighting, and Bigler and Walton were present and interfered. Next, that while scuffling, some colored man ran across the road, took off Ills coat, crossed the coal pile, lifted the shovel with both hands and approaching Ury from the back, struck him a severe blow on the side of the head, so sevex*e that the witness for the defense,' Mary Gamble, heard the crack on her porch, at the red house and that the man ran back the same way, picked up his coat and made off. These facts are testified to with variations by witnesses on both sides.</p> <p>The real conflict is — who was this man? Besides the dead man, six persons were present when the blow was delivered or saw it struck. Bigler, Mr. Miller, Mrs. Miller, Hamlet and Walton — all five of whom swore the man was Anthony, and Mary Gamble, who swears it was not. Testimony was offered to throw discredit on the identification of Hamlet and Walton, as you will remember, and of Bigler by showixxg that he said the man went out the other door, and that he did not know the man. But as we remember, no such contradictions were shown as to Miller and his wife, whose story is corroborated in many respects, other than the identification, and the statement of the colored woman, by witnesses on both sides. Were they correct or were they mistaken?</p> <p>Now the defendant claims he did not commit the offense, being intoxicated in his room, and to his location there Hall, Milly Boss, Gracey Webster and Josey Jones also testify. If they are correct, then the others are wrong. It will be for you to say which story is correct.</p> <p>Anthony’s story as to his purchase of drinks is attacked by the testimony of Huntsberger and Bynard, his intoxication at one o’clock by Whitaker, his presence in the yard in the afternoon by Woodson, and in the trolley car in the evening by Weibley and Koser. And if Weibley and Koser are correct, they also contradict in part the stories of Milly Boss and Hall, who said Jim was in his room after six o’clock. Now somebody, is-wrong or mistaken,- to use no harsher expression, who it is will be for you.</p> <p>Verdict of guilty of murder of the first degree. Sentence of death was subsequently passed. Defendant appealed.</p> <p>Errors assigned were as follows:</p> <p>First. The court erred in not affirming without qualification, the defendant’s third point.</p> <p>The point and answer found in the charge of the court are as follows:</p> <p>■ To constitute murder in the first degree in this case there must have been an actual intent to take the life of Michael Ury by the man who struck him with the shovel, and there is no evidence to establish such intent. The burden rests on the Commonwealth to show beyond a reasonable doubt that the killing was intentional and wilful. In Pennsylvania the law presumes a murder no higher than the second degree, the burden resting on the Commonwealth to establish a higher grade of crime.</p> <p>Answer: Refused as stated. The point would be affirmed were it not for the phrase “there is no' evidence to establish such intent.” This is a question for the jury under the evidence, and instructions which we will subsequently give you.</p> <p>Second. The court erred in instructing the jury as follows :</p> <p>Would the facts indicate that the blow was delivered with an intent to kill, and was deliberately delivered and with premeditation? Is this shown by the acts of preparation in' taking off the coat, approaching the back of the man to be attacked.</p> <p>Third. The court erred in instructing the jury as follows :</p> <p>■ Would the facts indicate that the blow was delivered with an intent to kill, and was deliberately delivered and with, premeditation? Is this shown by the acts of preparation in taking off the coat, approaching the back of the man to be attacked, with shovel upraised in both hands, and the delivery of a blow on the head so hard as' to make it crack.</p> <p>Fourth. The court erred in refusing to permit counsel for the defendant to continue in his cross-examination of Clifford Woodson, as follows (Record pp. 613, 614).</p> <p>Q. He was there in the open?</p> <p>A. Yes.</p> <p>Q. Can you say how soon after that you saw Hamlet?</p> <p>A. Yes.</p> <p>Q. How long after?</p> <p>■ A. I saw him about five minutes after that.</p> <p>The Court: That is as far as you can go. He was called to show merely that he saw the defendant, Avho had said he was in his room at the time — -that he had seen him at a specified time — as to what he saAV Avhen he met Anthony, we Avill allow him to testify, not beyond that.</p> <p>Mr. Berg: Give us an exception.</p> <p>The Court: Yes; if you put it in the shape of an offer.</p> <p>Mr. Berg: It is intended to further interrogate the witness on the stand for the purpose of ascertaining the correctness of his story, and to attack his credibility.</p> <p>By the Court: The witness having been called by the Commonwealth in rebuttal to contradict the statement of the defendant, Anthony, that he was in his room the whole of the afternoon, by showing at a certain time after the fight he was in the yard between the red and yellow houses, and having been called for that purpose alone, and the purpose of the present offer being to inquire as to the location of other parties subsequent to the time testified to by him, the testimony is refused, it not being proper cross-examination of the witness called in rebuttal for the purpose of contradicting a statement of the defendant as to his location in his room the whole of the afternoon. The movements of the witness after the time concerning which he was called to testify, would not be admissible in this cross-examination. Exception noted for the defendant.</p> <p>Fifth. The court erred in entering the following judgment :</p> <p>The sentence of the court upon you is that you shall suffer death by having passed through your body a current of electricity of sufficient intensity to cause death, and the application of such current must be continuous until you are dead, and the said punishment shall be inflicted as directed by the Act of June 19, 1913, P. L. 528.</p>

Appeal, No. 336, Jan. T., 1916, by plaintiff, from judgment of nonsuit of C. P. Lancaster Co., Sept. T., 1915, No. 25, in case of Annie L. Furlow v. J. D. Roland, Executor of Lucetta Lehn. Assumpsit to recover for domestic services. Before Hassler, J. The opinion of the Supreme Court states the case. The trial judge entered a compulsory nonsuit which the court subsequently refused to strike off. Plaintiff appealed.

<p>Decedents’ estates — Election to take against will — Exemption— Acts of April 1, 1909, P. L. 87, and July 21, 1918, P. L. 875 — Appraisement — Exemption in cash.</p> <p>1. Where a husband elects to take his $5,000 exemption under the Acts of April 1, 1909, P. L. 87, and July 21, 1913, P. L. 875, in cash, an appraisement is not necessary.</p> <p>2. The husband of a testatrix elected to take against his wife’s will and in the written election recited that the estate in question consisted of personal property, and particularly declared his desire to have $5,000 allotted to him therefrom as allowed by the Act of April 1, 1909, P. L. 87. It appeared that the entire property for distribution consisted of cash or its equivalent. The auditing judge awarded decedent’s husband the requested allowance, in addition to one-half of the remaining portion of her estate. Exceptions were filed to the $5,000 award because there was no appraisement as provided by the Act of 1909. Held, the exceptions were properly dismissed.</p>

<p>Appeal, No. 8, Jan. T., 1917, by Martin B. Hollinger, from decree of O. C. Lancaster Co., March T., 1916, No. 24, dismissing exceptions to adjudication in Estate of Susan L. Hollinger, deceased.</p> <p>Exceptions to adjudication. Before Smith, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court dismissed exceptions filed by Martin B. Hollinger to adjudication. Martin B. Hollinger appealed.</p> <p>Errors assigned were in dismissing exceptions to adjudication, each assignment quoting an exception but not the decree of the court.</p>

<p>Wills — Beal estate — Buie in Shelley’s Case — Act of April 27, 1855, P. L. 868 — Trusts—Dry trusts.</p> <p>Testator devised to Ms grandson a farm and wood lot “for and during the term of his natural life and after his death unto his lawful issue and in case he has no lawful issue, then unto his next of kin, in fee.” He further named a trustee for the estate given to his grandson and directed the trustee “to keep properly insured and in good order and repair all buildings” on the property. No funds were provided for insurance or repairs. Held, that the trust was dry and passive and not sufficient to prevent the operation of the rule in Shelley’s Case, and that the grandson took an estate tail, which was enlarged by the Act of April 27, 1855, P. L. S6S, into a fee.</p>

<p>Appeal, No. 73, Jan. T., 1917, by B. F. Davis, terre-tenant, from judgment of C. P. Lancaster Co., October T., 1913, No. 36, on directed verdict for plaintiff on scire facias sur mortgage in case of William Anderson, to the use of James G. Fowkes, now to the use of John E. Malone, v. Emanuel Kern, Mortgagor, with notice to B. F. Davis, Terre-Tenant.</p> <p>Scire facias sur mortgage.- Before Hassler, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court directed a verdict for the plaintiff and judgment was entered thereon. B. F. Davis, terre-tenant, appealed. .</p> <p>Errors assigned were various instructions of the court and the admission of certain evidence.</p>

<p>Partnerships — Existence of partnership — Evidence—Insufficiency —Going business — Assignment to alleged partners — Status of Assignees — Trustees—Assignment for creditors — Accounting—Commissions — Tenants in common — Sharing of profits — Promissory notes — Nonsuit.</p> <p>1. A division of the product of property between tenants in common does not make them partners, although they may have contributed labor or money to raise it.</p> <p>2. In an action on promissory notes against two defendants as copartners it appeared that the owner of a going business entered into a written agreement with the defendants under which he turned over his entire estate to them for the purpose of administration ; that they were to convert the property into cash and apply the proceeds first to the payment of the claims of creditors, then to the payment of an annuity to the assignor, then to other purposes specified; and that defendants were to retain for themselves the residue which might he left after such payments had been made. It did not appear that any profits were made, or that the business was carried on for that purpose or that there was any understanding between the defendants as to the sharing of profits, or that they held themselves out as partners to the plaintiff. . The notes in question were given by one defendant and represented an old indebtedness of the assignor’s business, such defendant endorsing the notes in the business name and individually. The other defendant had nothing to do with the negotiation of the notes. Held, the defendants were not partners hut trustees, and á compulsory nonsuit was properly entered as to the defendant who' did not endorse the note.</p> <p>3. The transaction was in the nature of an assignment for the benefit of creditors, involving an accounting; the residue representing commissions of the assignees.</p>

<p>Wills — Construction—Gift to class — Vested and contingent remainders — "Surviving”—"Survivors”—Time for determination of class — Equity of distribution — Avoiding intestacy.</p> <p>1. It is a general rule of construction that the word “survivor” or “surviving” following a prior gift is understood as referring to the death of the testator, unless a contrary intention is apparent.</p> <p>2. Where a testator directed that the proceeds of his real estate, in which he devised a life interest to a named devisee, should “be equally divided among the surviving devisees named in this will or their legal representatives,” he intended that the recipients of his bounty should be the devisees who were living at the time of his own death, and did not restrict the class to those who should survive the life tenant.</p> <p>3. In such case, the reasonable interpretation of the words “surviving devisees or their legal representatives” is to refer the word “surviving” to testator’s death and to construe “or their legal representatives” (whether meaning executors and administrators, heirs or next of kin) as intended to prevent the lapse of the share of any legatee who might die before the time for distribution should arise.</p> <p>4. This interpretation avoids intestacy and secures equality of distribution among the legatees.</p>

<p>Appeal, No. 129, Jan. T., 1917, by defendant, from judgment of C. P. York Co., August Term, 1914, No. 125, on verdict for plaintiff in case of Mary Ellen Bruggeman and John B. Bruggeman v. City of York.</p> <p>Trespass for personal injuries. Before Ross, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for the plaintiff Mary Ellen Bruggeman for $2,500 and for the plaintiff John B. Bruggeman for $100. Defendant appealed.</p> <p>• Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No, 132, Jan. T., 1917, by defendant, from, decree, of C. P. York Co., Oct. T., 1916, No. 1, refusing to set aside service of bill in equity in case of John Edward Vandersloot v. Pennsylvania Water & Power Company.</p> <p>Rule to.set aside service of bill in equity. Before Ross, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>. The lower court dismissed plaintiff’s rule to set aside the service of the bill. Defendant appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Fire insurance — Application—Answers to questions — Misrepresentations — Flour mill — Character of poiver used — Inspection — Breach of warranty — Estoppel—Judgment for defendant n. o. v,</p> <p>1. In an action on a lire insurance policy covering a flour mill operated by water power with a gasoline engine as auxiliary power, a verdict should have been directed for the defendant where it appeared that to specific questions in the application plaintiff answered that only water power was used; that while defendant’s secretary actually inspected the premises and saw the gasoline engine the application was not received by him until several months thereafter, and that before the policy was issued he communicated with the plaintiff stating that an additional rate was chargeable if gasoline power was also employed, and that with full knowledge of the difference in the rates plaintiff remitted the premium chargeable if water power only was used.</p> <p>2. In such case the company was justified in inferring from applicant’s written declaration and from the payment of the lower premium that only water power was used, that plaintiff intended to represent that the use of the gasoline engine in operation at the time of the inspection by defendant’s secretary had been abancloned, and defendant was not estopped by reason of such inspection from setting up the breach of warranty of the truth of plaintiff’s answers to the questions in the application.</p>

<p>Wills — Construction—Definite failure of issue — Life estate — Remainders — "Lawful heirs” — Ejectment—Act of April 27, 1855, P. L; 868.</p> <p>1. A limitation over by will to persons in being, after the death of the first taker without issue, raises' a strong presumption that the testator did not contemplate an indefinite failure of issue.</p> <p>2. Testator, by will, provided, “I give to my son......the farm on.which I now live......and if he should not have any lawful heirs, then after his death, the farm to be sold and divided equally between” six of testator’s grandchildren. The son had two children both of whom predeceased him. He devised the farm to his widow in fee, and after his death testator’s administrator d. b. n. c. t. a. brought an action of ejectment therefor. Held, (1) the first taker took only a life estate, and (2) the gift over to the grandchildren was good, and a verdict was properly directed for the plaintiff.</p> <p>3. In such case there was no merit in the contention that the first taker took an estate tail, enlarged by Act of April 27, 1855, P. L. 368, into a fee simple.</p>

Appeal, No. 230, Jan. T., 1916, by Mary J. MacTague and Ella B. McManemy, from decree of O. C. Philadelphia Co., April T., 1915, No. 167,' dismissing exceptions to adjudication of trustees’ account in Estate of Margaret A. May, Deceased. Exceptions to adjudication.

<p>Appeal, No. 157, Jan. T., 1917, by Guy A. Moore and John A. Hourigan, from decree of C. P. Luzerne Co., in equity, Feb. T., 1912, No. 14, awarding a preliminary injunction in equity case of R. Baur & Son et al. v. The Wilkes-Barre Light Co., on petition of Martin J. Mulhall, Receiver of the Wilkes-Barre Light Co., v. Guy L. Moore and John A. Hourigan, Receivers of the. Wilkes-Barre Light Co., appointed by United States District Court.</p> <p>Bill in equity for an injunction. Before Garman, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court granted a preliminary injunction which it subsequently refused to dissolve. Guy A. Moore and John A. Hourigan appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Negligence — Master and servant — Brewing company — Moving machinery — Change in operation — Increased danger — Failure, to notify employee — Contributory negligence — Instructions to jury— Failure to request — Faming power — Charge of court — Pleading— Variance.</p> <p>1. If the operation of a machine prior to changes is not attended with danger and changes, involving danger, are made without notice to or knowledge of an employee and in the exercise of ordinary prudence he would not observe such changes, it is the duty of the employer to' notify him thereof, and failure to do so is negligence.</p> <p>2. In an action by an employee against a brewing company to recover damages for personal injuries resulting from his arm being ca.ught in the revolving cogs of a machine, the questions of defendant’s negligence and the contributory negligence of the plaintiff were for the jury and a verdict and judgment for the plaintiff will be sustained where it appeared that it was the duty of the plaintiff, who was on night turn, to remove from time to time the malt which accumulated in.the gear boxes' of the malt dryer, a cylindrical drum revolving by means of cogwheels connected with the driving shaft; that in the performance of such services plaintiff was required to go to the rear of a chute which fed the dryer and to stand within a narrow space between the chute and reach over the gear, which had for many years been revolving outward and was therefore not dangerous; that nine days prior to the accident defendant changed the operation of the cogwheels so that they revolved inward instead of outward; that defendant did not notify plaintiff of such change and plaintiff was not aware thereof and could not observe same on account of the darkness of the place and the rapidity with which the cogs revolved; and while in the act of removing the malt his arm was caught in the cogs and he sustained the injuries complained of.</p> <p>3. In such case the plaintiff was justified in assuming that the wheels were still revolving outward.</p> <p>4. Where it appeared that the weekly wage of the plaintiff was the same after as before the accident, the court did not err, after referring to such fact, in charging that “it is for loss of earning. power in the future that you are to compensate him, if anything. In other words, what would he continue to earn in the future had this accident not have happened, and that for a period of the balance of his life?” The test is whether the power or capacity to earn has been diminished as a result of the injury, and the earnings of the plaintiif subsequent to the injury, as compared with his earnings-prior to the injury, are evidence, but not conclusive, as to whether his earning power has been diminished by reason of the injury.</p>

Appeal, No. 11, May Term, 1917, by defendant, from judgment of C. P. Dauphin County, Commonwealth Docket, No. 387, 1911, on case submitted without jury in case of Commonwealth of Pennsylvania v. Schwarzschild & Sulzberger Company of America. Appeal by foreign corporation from settlement of account by auditor general and State treasurer. The facts appear by the following opinion by McCarrell, J.: Trial by jury has been duly waived in this case.

<p>Constitutional law — Constitution of United Stales, Fourteenth Amendment — Constitution of Pennsylvania, Article I, Section 10; Article III, Sections 16 and 21 — Property rights — Payment of money by State without appropriation — Limitation of action against corporation — Banks and banking — Deposits — Failure to demand money within thirty years — Payment to State■ — Depositor’s right against State — Contract subject to statute — Act of April 17, 1872, P. L. 62 — Validity—Act of May 11, 1909, P. L. 519 — Affidavits of defense — Insufficient averments.</p> <p>1. Every sovereign state has jurisdiction to take charge of apparently abandoned or unclaimed property.</p> <p>2. The Act of April 17, 1872, P. L. 62, providing that “where any depositor with any savings fund, savings institution or savings bank whatsoever, or his legal representatives, shall omit to make any demand for the amount deposited by him, or for any part thereof, for the space of thirty years after the last deposit or payment was made by or to him”......such funds shall be paid by the bank to the State and thereafter the depositor may recover same from the State, does not violate the Fourteenth Amendment of the Constitution of the United States, or the 10111 Section of Article I of the Constitution of Pennsylvania in that it deprives a person of property without due process of law, the rights of the depositor being amply protected by giving him a cause of action against the Commonwealth, which, because of its power of taxation, is always solvent and the best of security.</p> <p>3. A court will never heed objections to the constitutionality of an act of assembly unless the complainants 5re affected by the particular feature alleged to be in conflict with the Constitution.</p> <p>4. In an action by the Commonwealth against a banking institution to recover deposits in its hands after thirty years have elapsed from the last addition to or payment therefrom it will be presumed, in the absence of an averment to the contrary in the affidavits of defense, that all the deposits in controversy were made subsequent to the passage of the Act .of 1872, and that the respective depositors acted with full knowledge of the provisions of said act, and in view of such presumption there is no merit in the contention that the act is defective in failing to provide, as in the case of an escheat, for notice by publication or otherwise to the owner.</p> <p>5. In such case the contract of a depositor must be treated as subject to the terms of the Act of 1872, and the proceeding is therefore not an impairment of the obligations of the contract.</p> <p>6. The question whether the failure of the Act of 1872 to permit a depositor to claim interest from the State renders the act invalid, can be raised only by the depositor and not by the bank in an action against it by the Commonwealth.</p> <p>7. The Act of 1872 is not contrary to Article III, Section 16 of the Constitution of Pennsylvania in that it attempts to authorize the payment of money by the State treasurer without special appropriation. Such provision of the Constitution simply means that the public funds are not to be expended in any way except as directed by the law-making power, and does not intend to prevent the legislature from providing a special fund to be paid out in a designated manner, or to prevent the law-making power from pledging unappropriated funds for the return of moneys taken into the custody of the State under such act, concerning which the Commonwealth asserts no right or title paramount to that of the original owner.</p> <p>7. The Act of May 11, 1909, P. L. 519, does not impliedly repeal the provisions for repayment contained in the Act of 1872.</p> <p>8. The Act of 1872 applies to all banking institutions, whether incorporated or otherwise, and is not a statute of limitations but rathermn enactment for the protection of a savings bank against liability after it has paid over a deposit to the State treasurer, and such act is not therefore violative of Article III, Section 21 of the Constitution of Pennsylvania in that it prescribes a limitation of time within which an action may be brought against a corporation different from the general laws regulating actions against natural persons.</p>

<p>Railroads — Relief fund — Death benefits — Suit at law — Recovery —Satisfaction:—Subsequent claim, against relief fund — Affidavits of defense — Sufficiency-—-A ct of Congress of April 1908.</p> <p>1. A regulation of a relief association of a railroad company providing that the recovery of a judgment in a suit for damages on account of injury or death of a member 'Shall preclude any claim upon the relief fund for benefits on account of such injury or death, is valid; and where a widow has recovered a judgment against the railroad company for the death of her husband she cannot thereafter assert a claim against the railroad relief fund, and an affidavit of defense setting up such regulation as a bar to such action is sufficient.</p> <p>2. In such case the Act of Congress of April 22, 1908, 35 Statutes-at-large 65, c. 149, No, 5, providing that any “contract, rule, regulation or device whatsoever, the purpose or intent of whieh shall be to enable any common carrier to exempt itself from any liability created by this act, shall, to that extent, be void,” is not applicable, such act not intending that there should be both a payment of benefits and a recovery of damages for the injury, at least in so far as payments for both are to be made by the same defendant.</p> <p>3. In such case, had plaintiff received payment of the benefit certificate prior to bringing suit for damages, the stipulation in the contract of membership in the relief fund could not have been permitted to defeat the right to recover damages, but defendant would have been entitled to set off the sum it had so paid the plaintiff.</p>

<p>-.,Receivers — Corporations—Appointment — Hostile interest — Removal.</p> <p>The receiver of á railroad company was properly removed on petition of creditors of the company where it appeared that he was interested in another railroad with which the former company was engaged in litigation.</p>

<p>Appeal, No. 5, May T., 1918, by plaintiff, from decree of C. P. Daupliin Co., Equity Docket No. 603, and Commonwealth Docket, 1917, No. 94, dismissing bill in equity for an injunction in case of F. M. Noecker v. Cyrus E. Woods, Secretary of the Commonwealth of Pennsylvania.</p> <p>Bill in equity for an injunction. Before Kunkel, P. J., and McCarrell, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 391, Jan. T., 1916, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., March T., 1913, No. 827, on directed verdict for defendant, in case of William Moran v. The General Fire Extinguisher Company.</p> <p>Trespass to recover damages for personal injuries. Before Martin, 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>Elections — Judges—Orphans’ Court -judges — Constitutional law —Constitution of Pennsylvania, Art. 7, Sec. SB; Art. 7111, Sec. £ — Constitutional Amendments of 1909, P. L. 91/8 — Time of election.</p> <p>1. An Orphans’ Court judge is not a judge of a designated judicial district of a state, but of the court of the county-in which he resides. If there be one of two, three or four counties, constituting a single judicial district, such judge is not a judge of that district with jurisdiction extending all over it, as in the case of each of the Common Pleas judges within it. His jurisdiction is limited to the county in which his court exists.</p> <p>2. The intent of the sixth constitutional amendment of 1909, (P. L. 948), was to eliminate the spring election and to continue the constitutional provisions for the election of local or municipal officers on a day different fronrthat on -which general State officers are-elected; judges of the -several judicial districts are State offleers .but the duties .which they perform are local and under the sixth amendment of 1909 they are in the class of officers to be electee! at the municipal elections.</p> <p>S. It is the- intent of such amendhlQnt that Orphans’ Court judges of the State are to be elected at the same time that elections are held for judges of the courts for the several judicial districts and for county, city, ward, borough and township officers for regular terms of service, and it is not material that they are not judges of the courts for the several judici.al districts or that there are no provisions in the Constitution, other than the sixth amendment of 1909 (P. L. 948), under which they can be elected.</p> <p>4. Under Section 25 of Article V, and Section 8 of Article IY of the Constitution, where a vacancy happens by reason of death in a court of record within three months prior to the next election for judges, the vacancy is to be filled by appointment by the governor until the first Monday of January next succeeding the second election for judges after the occurrence of such vacancy, and this provision has not been made inoperative by the sixth amendment of 1909, amending Section 8 of Article IV, and providing that in the case of a vacancy in an elective office, the person appointed by the governor to fill it shall be succeeded by someone chosen on the next election day appropriate for such office, unless the vacancy shall happen within two calendar months immediately preceding such election, in which case the election for said office.shall be held on the second succeeding election day appropriate for such office.</p> <p>5. A judge of the Orphans’ Court died within three months and more than two months prior to the next election for judges. Nomination petitions were prepared nominating certain persons as candidates for the vacancy caused by the death of such judge. In a suit in equity brought by a taxpayer to enjoin the county commissioners from printing the names of the nominees mentioned in such petition upon the ballots, the lower court dismissed the bill. Held, that the vacancy caused by the death of such judge could not be filled at the next election for judges, but must be filled by the governor, the incumbent holding office until the first Monday of January following the second election for judges held after the occurrence of such vacancy, and the decree was reversed with directions to grant the relief prayed for.</p>

<p>Wills — Construction—Legacies—Charitable bequests — Identification of legatee.</p> <p>A testatrix made her will in 1909, whereby she bequeathed one-fourth of the residue of her estate to the “Allegheny County Children’s Aid Society, of Allegheny County, Pennsylvania.” The testatrix died in March, 1915. At the time of the making of the will there was in Allegheny County an unincorporated body known as the Children’s Aid Society of Allegheny County. In May, 1913, the majority of the members of such society voted to incorporate the society, and in June, 1913, such society was incorporated by the Common Pleas Court. Thereafter certain persons who had been members of the unincorporated body, not approving of the incorporation, formed an organization known as the Children’s Aid Society of Western Pennsylvania, Allegheny County Auxiliary. Each of such organizations claimed the legacy. Held, the court properly awarded the legacy to the incorporated body.</p>

<p>Appeal, No. 70, Oct. T., 1917, by Aaron O. Young, from decree of O. C. Greene Co., Dec. Court, 1914, No. 4, refusing partition, in Estate of John Young, Deceased.</p> <p>Petition for partition of the real estate of decedent. Before Irwin, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused the petition. Aaron O. Young appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 159, Oct. T., 1917, by plaintiffs, from judgment of C. P. Greene Co., Dec. T., 1915, No. 83, on verdict for defendant, in case of Jesse R. Cross and Wilbur F. Cross v. A. J. Dye.</p> <p>Ejectment for lands in Greene County. Before Ray, P. J.</p> <p>From the record it appeared that the third and fourth paragraphs of the will of Harriet R. Cross were as follows :</p> <p>“If my husband, A. G. Cross, should survive me, it is my will that he shall have the house and lot I now own on Washington Street, in Waynesburg Borough, Pa., during his life and the rents, issues and profits thereof, free from any debts he may now owe or hereafter contract, he to pay taxes thereon and keep the same in good and sufficient repair, and at his death I give and devise the said house and lot to my daughter, Marietta R. Cross and my son Walter L. Cross and the survivor of them and their heirs in fee, but should they both die without lawful issue then the same shall go to my sons, Jesse and Wilbur and their heirs.</p> <p>“It is my will that if my daughter, Marietta R. Cross should marry that the estate I have above devised to her in the said house and lot shall be subject to her separate use and control and shall not become liable in any manner for the debts of her husband, being unwilling that my bounty to her shall be dissipated or aliened by strangers or other debtors than her own.”</p> <p>Walter L. Cross died November 4, 1893, unmarried and without issue. The decedent died November 28, 1894. Marietta R. Cross survived her brother, Walter L. Cross, and her father, A. G. Cross, and conveyed away the premises, which by^various mesne conveyances became vested in the defendant. IJpdn the death of Marietta R. Cross, plaintiffs brought the action contending that under the will of Harriet R. Cross, there was but a life estate in Marietta R. Cross, with remainder over to them.</p> <p>Verdict for defendant by direction of the court and judgment thereon. Plaintiffs appealed.</p> <p>Errors assigned were in directing a verdict for defendant and in entering judgment thereon.</p>

<p>Appeal, No. 168, Oct. T., 1917, by defendant, from judgment of C. P. Beaver County, Dec. T., 1916, No. 243, for want of a sufficient affidavit of defense in case of J. F. Naugle and Essie N. Stone v. R. O. Irvin.</p> <p>Assumpsit to recover purcbase-price of real estate. Before Baldwin, P. J.</p> <p>From tbe record it appeared that plaintiffs claimed $1,950, being tbe balance due them on a written contract for tbe sale of real' estate under which defendants had agreed to purchase from plaintiffs certain land located in tbe Borough of Beaver Falls.</p> <p>Plaintiffs had tendered a general warranty deed conveying the property in fee and defendant had refused to pay the balance of the purchase-money.</p> <p>Defendant’s affidavit of defense alleged that the title of plaintiffs to said land was under the will of David S. Naugle, deceased, and that under said will the plaintiffs did not have a fee simple title.</p> <p>Plaintiffs claimed title under the eighth paragraph of said will which was as follows:</p> <p>“Eighth. All the rest, residue and remainder of all my personal, real and mixed property or estate (including the remainder in the Second street property) I will, give, devise and bequeath unto my two children, Essie B. Naugle and John Franklin Naugle, their heirs and assigns, share and share alike, or each to have one-half. This devise and bequest to include all property of whatever kind and wherever situated.</p> <p>“In case of the death of either child during minority, without issue, then the share of such child dying without issue, shall go to and be vested in such surviving child.</p> <p>“In case of the death of both of said children, without issue, then the property and estate willed, devised and bequeathed to them I will, devise, give and bequeath unto my wife, Mary P. Naugle, the same during the life or so long as she remains my widow. On her death or remarriage, I will, devise and bequeath one-fifth of the same to the surviving children or their issue of my deceased sister, Sarah E. Brittain, the remaining four-fifths I will, devise and bequeath to my mother, Emiline Naugle, and my brother, John F. Naugle, if living, or to the survivor thereof, or in event of death of both to the issue of my said brother, if any, or if both have deceased without issue, then the said four-fifths to go to and vest in the surviving children, or their issue, of my deceased sister, Sarah E. Brittain.”</p> <p>Plaintiffs had both reached the age of twenty-one years.</p> <p>The lower court entered, judgment for the plaintiffs for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>• Error assigned was in entering judgment for the plaintiffs for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 184, Jan. T., 1917, by defendant, from, judgment of O. & T. Clearfield Co., May T., 1916, No. 50, on verdict of guilty of murder of the first decree in case of Commonwealth of Pennsylvania v. W. M. Dennery, alias Mike Dennery, alias Whitey.</p> <p>Indictment for murder. Before Bell, P. J.</p> <p>From the evidence it appears that Tom Shade, a cripple, lived alone in a shanty in Clearfield Borough and worked for a brick company. The shanty had two rooms, a front room, in which was Shade’s bed, and a kitchen. On January 31, 1916, he had quit work for a day or two and was indulging, as he occasionally did, in the excessive use of liquor, having at the shanty at that time a small keg of beer and a bottle of whiskey, which he shared with some of his friends who called during the day. On that evening, at abont fifteen minutes after six o’clock, while he and John Rowles, the deceased, were in the front room, and two other friends named Patrick Kelley and Michael Brawlev were in the kitchen, three men armed with revolvers and their faces partly concealed by handkerchiefs entered the shanty, two in the kitchen and the third in the front room. The latter at once grabbed Bowles’ face and turned it aside with his left hand and with his right hand placed the revolver against Bowles’ head and fired, killing him instantly. The assailant then covered Shade with his revolver, and with repeated threats of instant death demanded his money and compelled him to search therefor in different parts of the room, including the bed, but found none. At the same time Kelley and Brawley were held up by the two robbers in the kitchen and forced to stand facing the wall with their hands above their heads while they were searched.</p> <p>Meantime the robber in the front room looked through the door into the kitchen and told his confederates to search the man with the cap on, referring to Kelley, and especially to look in the watch pocket of his pants, Avhere they found two ten dollar bills and a five dollar bill, all of which were taken and the robbers departed.</p> <p>Mike Dennery, the defendant, has an unusually light complexion and is a large man, about twenty-seven years of age, a sailor on the lakes in summer and a tramp in winter. He came to Clearfield about December 27,1915, and until the fifteenth of January, 1916, Avas employed there as dish washer in a hotel. When he ceased that work he had a few dollars and remained around Clear-field until the evening of the homicide, sleeping with other tramps at a brick kiln. During this time he did some begging and lived as such men usually do, spending considerable time at a place called “the camp” on the bank of the river, where tramps built a fire and did cooking. John Bowles, the deceased, was a resident of Clearfield and worked nights at one of the brick plants. He was subject to fits, not strong in any respect, and had at one time been an inmate of the county home. He had no regular boarding place for some days prior to his death and seems to have associated more or less with tramps. He met the defendant about two weeks prior •to his death and a friendship sprang up between them; they were often seen together and he introduced the defendant as his brother; they tried to rent a shack for their joint use and were together several times at Shade’s shanty, including the morning of the day of the homicide; at which time Bowles gave Kelley two ten dollar bills and a five dollar bill belonging to Shade, and which Kelley then put in the watch pocket of his pants.</p> <p>Before the homicide the defendant had become acquainted with two other tramps known as Allen and Wilson; and the three were jointly indicted for the murder of Bowles. Allen and Wilson were arrested the same night at DuBois on an outgoing freight train, and this defendant, who left Clearfield that evening, was apprehended about seven months later at Cleveland, Ohio, where he wras working under an assumed name. Meantime Allen and Wilson, for their complicity in the crime, had been tried and convicted of murder in the second degree. At the trial of this defendant a large amount of testimony was submitted tending to show, inter alia, that a few days prior to the robbery he saw Shade have about eighty dollars at the shanty; that at about one o’clock on the day of the crime the three defendants were at the camp where they ate dinner, also drank intoxicating liquor and were overheard talking about the money at the shanty and planning to go and take it; that later in the afternoon they returned to camp and continued the talk upon the same subject and left there together about one-half hour before the crime was committed.</p> <p>It was raining that evening and some minutes after the robbery Dennery came to one of the brick kilns wet and muddy; appeared to be nervous and excited and in a hurry and stated to two other tramps there with whom he was acquainted that, “we had some shooting up there and the neighbors are telephoning for the police...... you better beat it”; and further said, “as soon as we went in Jimmy (meaning Wilson) started to shoot”;; and also in effect that he would get even with his confederates for keeping all of the money. Then lie and the two others thus addressed caught a freight train and left Clearfield. All the defendants denied their guilt and submitted evidence tending to discredit and explain that of the Commonwealth. The evidence for the defense tended to show that this defendant returned that night and got some underwear at the brick kiln, then caught another train out before daylight and went into an adjoining county where he worked a week in an ice plant and served ten days in jail for trespassing on the railroad, and in each.instance there gave his true name. Each of his confederates had a revolver when arrested; and money corresponding to that taken from Kelley was found on the car floor where one of them sat Avhen being brought back that night from DuBois. At Clearfield this defendant was sometimes referred to as “The Big Swede,” although not of that nationality. Shade, who knew him well and had a good chance to see him that night, as the room was lighted up and the handkerchief covered only the loiver part of his face, testified positively that he Avas the man who shot Rowles; and Kelley, who based his conclusion on the assailant’s voice, was of the same opinion, though not so positive.</p> <p>Just after the robbers had left the shanty, Shade said to Kelley and Brawley, in effect, that it Avas the big Swede who shot Rowles.</p> <p>There was evidence to the effect that three or four days prior to the murder Rowles had said in the presence of defendant that the latter had taken money from him and also had attempted to commit upon him an unnatural offense.</p> <p>Verdict of guilty of murder of the first degree on which judgment of sentence was subsequently passed. Defendant appealed.</p> <p>Errors assigned, among others, Avere various rulings on evidence, the charge of the court, the refusal of defendant’s motion for a new trial, and judgment of the court imposing sentence.</p>

<p>Appeal, No. 309, Jan. T., 1917, from order of C. P. No. 3, Philadelphia Co., Sept. T., 1917, No. 4104, sustaining objections to nomination papers, In re Nomination Papers of Town Meeting Party Purporting to Place in Nomination Francis F. Burch, W. T. Colburn, Dennis J. Grace, Louis Karstaedt and I. Walter Thompson, for the Offices of Councilmen for the Forty-Sixth Ward of the City of Philadelphia.</p> <p>Objections to nomination papers.</p> <p>The facts appear in the following opinion by Wessel, J., specially presiding; Carr and Davis, JJ., concurring:</p> <p>On September 19, 1917, the Washington Party was entitled to nominate candidates for Common Council, in the 46th Ward of this city. On that day the qualified electors of that party in that ward, placed in nomination, inter alia, Francis F. Burch, W. T. Colburn, Louis Karstaedt, and I. Walter Thompson for the offices of Common Councilmen. Subsequently the same men were nominated for the same offices by nominators who desire them placed in nomination under the title which had been preempted in that ward as the “Town Meeting Party.” This is objected to, it being contended that when a person is designated by a regular political party as its candidate for a designated office, and such person does not decline such nomination other electors cannot, by an independent nominating petition secure a duplication of his name upon the ballot, under some other appellation. This objection is supported by Commonwealth v. Martin, 21 Pa. C. C. Reps. 422 (1898). That was a petition for a peremptory mandamus against the secretary of the Commonwealth, to require him to file certain nomination papers. It appeared that the petitioner, and other qualified electors of this State, constituting in number more than two per cent, of the largest entire vote cast for any officer elected at the last preceding State election, signed a nomination paper for the purpose of placing in nomination for the office of governor, William A. Stone; for the office of lieutenant-governor, J. P. S. Gobin; for secretary of internal affairs, James W. Latta; for congressman-at-large, Galusha A. Grow and Samuel A. Davenport; for judges of Superior Court, W. W. Porter and W. D. Porter. That nomination paper thus signed was duly presented on October 4th to the defendant, David Martin, Secretary of the Commonwealth, at his office in the City of Harrisburg, for the purpose of having the same filed in accordance with the law. He refused to receive or file said paper. The candidates presented by that nomination paper, had previously been nominated by the State convention of the Republican party, and its nomination for the same several and respective offices for which they had been, named had been duly certified to the secretary of the Commonwealth in such a way to secure a place for their names on the official ballot. In refusing the petition, Mr. Justice Stewart (then specially presiding as President- Judge of the 39th Judicial District), said (p. 423) : “In another proceeding determined only yesterday, in which we adjudged invalid the certificate of nomination, filed on behalf of the same political party that has offered this nomination paper, we endeavored to point out the distinction made by the law between political combinations, some of which are to be regarded as parties, and others, lacking certain characteristics as less than parties. The second section of the Act of July 9, 1897, P. L. 223, known as the ballot law, relates wholly and exclusively to political combinations which the law regards as parties, and so designates them. The third section makes provisions for -such combinations as are less than parties, and such are referred to as political bodies. The word party nowhere occurs in this section.</p> <p>“The distinction thus made in the act governs not merely in procedure, but the rights and powers of these different political combinations with respect to the official ballot are determined therefrom.</p> <p>“A political party — .that is a party within the legislative sense — has a right to have a separate column on the ballot for its own ticket, and it is a matter of no concern to the law, so far as regards the composition of the.ballot, who compose that ticket, whether it includes the same names that appear on the other tickets or not. It is an unquestioned right that each party has to name its own ticket and constitute it as it pleases.</p> <p>“But with respect to combinations, which are less than parties, the law is different. When either of the established and recognized parties has placed a candidate in nomination for a particular office, and has secured for such candidate a place on the official ballot, what possible end is served by allowing the same name to again appear in connection with the same office by virtue of nomination papers? Once upon the ticket every elector will be afforded the privilege of voting for this particular person in a sufficiently convenient way. It is no answer to say that it would be helpful to the political body that asks the privilege. The law was not designed to |I advance the interests of political combinations, but to ¡secure a safe and convenient ballot, that in its turn | 3 ' ¡5 would secure an honest and intelligent expression of the popular will. It regards a mere political combination, —one less than a party — as a body of dissenters, and affords them facility for expressing their dissent on the official ballot by placing thereon a candidate; but it. must be a candidate not already nominated by the party. The manifest purpose of Section 3, of the act we are considering, was to insure to the electors of the State a liberty which no party discipline could hinder or restrain and to enable them to attempt at least by the use of the common ballot, the accomplishment of something that no party has provided for. Beyond this it does not go. There is room on the official ballot for the ticket of any party; there is likewise room for any candidate not included in one or the other of the party tickets, who may be placed in nomination by nomination papers, and thus every political combination is provided for, as we still have a ballot reasonable in size and readily understood by the average voter. But if once we allow that candi-! dates nominated by a party may be nominated again and ( again by nomination papers, the result Avould be a ballot impracticable and unintelligible to the ordinary under- ’ standing.”</p> <p>But the nominators contend that that decision is not controlling, because of the subsequent legislation. They urge that the law, as then construed by Mr. Justice Stewart, has been changed by the Act of April 29, 1903, P. L. 338, which provides, in its second section (Avhich amends the 14th section of the Act of June, 1893, as amended), inter alia, (p. 342) : “Whenever any candi- j date shall receive more than one nomination for the same i office, his name shall be printed once, and the names of! each political party, so nominating him, shall be printed > to the right of the name of such candidate, arranged in j the same order as candidates’ names are grouped.”</p> <p>With this contention Ave are unable to agree. Justice Stewart’s decision was rendered in 1898. The legislation which was enacted some five years later, did not amend either the second or third sections of the Acts of 1893, as amended by the Act of 1897, then construed. The amendatory Act of 1903 merely cites and amends the ninth, fourteenth, twenty-second, tAventy-seventh, twenty-eighth and thirtieth sections of those acts. Those amendments relate to the duties of certain officers; to the form and arrangements of the ballots; to the duties of the voter in the polling place; to the counting of the votes and the preservation of the ballots. But those amendments make no change in the legislation, designating by whom and in what manner nominations may be made. A second section of that act designates who shall be entitled to file nomination papers: Butler Township Republican Nomination Papers, 14 Pa. C. C. Reps. 470 (1894).</p> <p>It is also apparent from the part of the paragraph of the Act of 1903, above quoted (P. L. 342), that the legislature was considering then not the rights of the persons exercising their prerogatives as nominators but the arrangement of the ballot as regards those candidates who should have received the nomination of more than one “Political Parties.” That there is a clear distinction between such a body and those placing electors in nomination by nominating papers, appears from Mr. Justice Stewart's opinion In re Citizen Party Nominations, 21 Pa. C. C. Reps. 417 (1898), where he says (p. 418) :</p> <p>“While our legislation recognized political combinations, it has nothing to- do with their creation, continu-1 anee or dissolution. Not being born under the law, they are not subject to it. They are left free to govern themselves and regulate their own actions. The law does not compel the citizen to attach himself to any; he may or may not, as suits his pleasure. When he does the law has nothing to do with the terms or conditions of his membership. It takes no notice of his standing in the society, except it be official, and then only in a single case, and cares nothing whether he gives much or little support, whether he votes its ticket straight or scratched regularly or only occasionally. The measure of his activity and allegiance concerns only himself and the party.</p> <p>“But this indifference of the law ceases when the action of a political combination brings it into relation with what is known as the official ballot. When an association or combination of electors demands for its candidates a place on the ballot, and its right to this is challenged, the law concerns itself to inquire just what its rights are, and this involves an inquiry into the composition and character of the combination.</p> <p>“It is with combinations that the law deals, not the individual elector, in such questions, and with respect to the former, it makes its own distinctions. All political combinations are not alike — that is, not of like grade, and their rights differ correspondingly.</p> <p>“One clear distinction the law makes between combinations which are parties, and those which are less than parties. Every party is necessarily a combination, but the converse that every combination is a party, is very far from being true. The distinction is easily discoverable in the different provisions which are made for each kind of combination in the Act of 1893 as amended by the Act of 1897, and known as the ballot law.</p> <p>“The combination which is a party places its candidates in nomination by a proceeding wholly different from that which a combination less than a party must follow to accomplish the same object. The former files certificates of nomination, the latter nomination papers, a difference of sufficient importance to provoke the present controversy.</p> <p>“Since it is the legislative understanding of what is meant by the term political party that is to govern, it cannot be in the least helpful to have recourse to the lexicographers. We shall find no definition that expresses the legislative idea. For instance, an admitted essential feature of a political party within legislative; meaning, that it shall have polled a certain per centum of a certain vote cast at the next preceding election. We shall not find that expressed in any definition.</p> <p>“To discover what is meant by the term we are thrown back upon the act or series of acts which relate to the general subject, and to these we are confined. Confessing our inability to put it all within the limits of a definition, we can yet indicate certain essential characteristics which are sufficient for present purposes. We have already referred to one — the combination must have polled a certain proportion of the highest vote cast at the next preceding election. Another is, that it must, in its aims and purposes, be as broad as the State itself. That is to say, its purpose must be to accomplish results affecting and concerning the entire citizenship, as distinguished from the particular section or district. Not that it must have supporters in every political subdivision of the State; it may have them in but a single county, and yet be a political party; but its object must be of general concern, so that it can invite to its support the people of the State, irrespective of locality. Where both these features are found in any combination, it is a party Avithin the legislative meaning; Wdiere either is lacking, it is a combination less than a party.” To that may be added the opinion of Judge Weiss in Jeffries’ nomination, 24 Pa. C. C. Reps. 529 (1900); Judge Pennypacker’s opinion In re McKinley-Citizen’s Party, 19 Pa. C. C. Reps. 132 (1896); and In re Public Opinion Party, 27 Pa. C. C. Reps. 145 (1897); Judge McMichael’s opinion In re Citizen’s Party Nomination, 22 Pa. C. C. Reps. 65 (1898); Judge Simonton’s opinion in Handley v. Reeder, 18 Pa. C. C. Reps. 456 (1896).</p> <p>The subject is an important one. We regret that the necessity- for an immediate decision has limited our research to a feiv hours. Our conclusions may cause the| electors to exercise a little more care and to expend some ¡i additional time in the marking of their ballots, but they ; may still vote for the nominee above referred to, if they «j be their choice.</p> <p>The court sustained the objections filed by James A. Walker, E. S. Krombolz and R. Emmett Dillon to the nomination papers of the Toivn Meeting Party, placing-in nomination Francis F. Burch, I. Walter Thompson, Louis Karstsedt and W. T. Colburn for the offices of common councilman in the Forty-sixth Ward of Philadelphia, and restrained the county commissioners from printing the said Town Meeting nominations upon the official ballot for said Avard. Francis F. Burch, W. T. Colburn, I. Walter Thompson and Louis Karstaedt appealed.</p> <p>Errors assigned were in sustaining the objections and the order of the court.</p>

<p>Appeal, No. 310, Jan. T., 1917, by John W. Graham, Jr., Robert E. Lamberton, William W. Mentzinger, Jr., and O. Lawrence Smith, from order of C. P. No. 3, Philadelphia Go., sustaining objections to nomination, papers In the Matter of the Nomination Papers of the Town Meeting Party Purporting to Place in Nomination John W. Graham, Jr., Robert E. Lamberton, William W. Mentzinger, Jr., and C. Lawrence Smith for the Office of Common Councilmen of the Twenty-second Ward of the City of Philadelphia.</p> <p>Objections to nomination papers. Before Carr, J.</p> <p>The facts appear in Town Meeting Party Nomination Papers, 259 Pa. 231 (No. 1).</p> <p>The court sustained the objections to the nomination papers. John W. Graham, Jr., Robert E. Lamberton, William W. Mentzinger, Jr., and C. Lawrence Smith appealed.</p> <p>Errors assigned were in sustaining the objections and the order of the court.</p>

<p>Contracts — Written contract — Subsequent parol agreement — Advancing time for completing worlc — Absence of provision as to increased compensation — Quantum meruit for increased cost — Practice, C. P. — Statement of claim — Insufficiency—Affidavit of defense in nature of demurrer — Practice Act, May 14, 1915, P. L. 488.</p> <p>1. The effect of an affidavit of defense in the nature of a demurrer filed under the Practice Act of May 14, 1915, P. L. 483, is to test the sufficiency of the plaintiff’s statement, which must be self-sustaining and set out a good cause of action.</p> <p>2. The legal effect of writings attached to the pleadings is for the court and cannot be controlled by averments of the parties.</p> <p>3. Letters exchanged in confirmation of a verbal agreement will be presumed to correctly state it, especially where they are retained without objection.</p> <p>4. A new agreement will supersede an old one so far as they cannot be executed together.</p> <p>5. Where a parol agreement entered into subsequent to the execution of a written contract, modifies the latter only in the respect that the work shall be completed at an earlier date, a recovery cannot be had on a quantum meruit for all work thereafter done on the theory that the original contract has been abrogated.</p> <p>6. In an action by a construction company against a railroad company, it was alleged that plaintiff entered into two written contracts with the defendant to construct-two sections of a railroad bed for defendant by December 1st. All of the work was completed on time, accepted and paid for. Plaintiff subsequently brought suit on an alleged verbal agreement, made during the' progress of the work, and confirmed by letters, contending that-such agreement superseded the original contracts. The alleged change was for the completion of the work at earlier dates, November 7th as to one contract, and October 7th as to the other, thereby greatly increasing the cost of construction. The work was not completed on the earlier dates, but on December 1st as to the one contract, and a week earlier as to the other, due to defendant’s alleged dilatoriness in furnishing rails required under an independent verbal agreement made subsequent to the main contracts. The alleged new arrangement, made no change in the work to be done or the price to be paid, nor did it abrogate a provision for award by defendant’s chief engineer, and plaintiff sued on a quanturn meruit. From tbe time of tbe commencement of tbe work under the new agreement plaintiff gave notice from time to time that it would expect additional compensation. Held, plaintiff’s statement was insufficient and judgment was properly entered for the defjndant.</p> <p>Malone & Son v. Philadelphia & Reading R. R., 157 Pa. 430, distinguished.</p>

<p>Criminal law — Murder—Voluntary manslaughter — Involuntary manslaughter — Charge—Conflicting instructions- — -Erroneous instructions — Pointing gun to frighten — Evidence—Self-defense— Scope of direct examination of defendant- — -New trial.</p> <p>1. Where the plea to an indictment for murder is that defendant was acting in self-defense, it is reversible error to refuse to permit the defendant, while being- examined as a witness in his own behalf, to be asked whether at the time he fired the shot he thought he was in peril of his life or of great bodily harm. The weight to be accorded such testimony is for the jury.</p> <p>2. In such case the trial judge erred in refusing to correct such error on the ground that, in his judgment,.there had been developed on the cross-examination of the defendant what would have been an affirmative answer to the disallowed question, where it appeared that in no one of defendant’s answers to the questions put to him by the. district attorney did he say that, when he shot deceased, he thought he was in peril of his life or of great bodily harm. His mere admission that he was in fear is not the equivalent of his unqualified declaration that he had acted in self-defense because he thought that he was in peril of his life or of great bodily harm.</p> <p>3. Where correct and erroneous instructions are given in a charge it is- not to be conjectured, especially in a capital case, which the jury followed.</p> <p>4. On the trial of an indictment for murder where defendant testified that when he took the gun into his hands he was under the impression that it was unloaded and that his intention was to use it to frighten the deceased away, the error committed in charging that if such were the honest belief and purpose of the defendant he would be guilty of voluntary manslaughter, the trial judge inadvertently using the word “voluntary” instead of “involuntary,” is not cured by the fact that the court had in a previous part of the charge carefully distinguished between the two grades; and where in such case a conviction of voluntary manslaughter followed, a new trial was awarded.</p>

<p>Appeal, No. 287, Jan. T., 1916, by respondent, from order of C. P. Luzerne Co., May T., 1916, No. 281, striking defendant’s name from record as an attorney for a period of six months in re Investigation of certain statements alleged“to have been made by Paul J. Sherwood, Esq., a member of the Luzerne County Bar.</p> <p>Rule to show cause why respondent should not be removed from the office of attorney for breach of fidelity to the court and misbehavior in office. Before Barber, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court made an order suspending respondent from office for a period of six months. Respondent appealed.</p> <p>Error assigned, among others, was the order of the court.</p>

<p>Appeal, No. 81, Oct. T., 1917, by defendant, from judgment of C. P. Armstrong Co., March T., 1916, No. 49, on verdict for plaintiff, in case of John J. Clark v. Butler Junction Coal Company, a corporation under the laws of Pennsylvania.</p> <p>Trespass to recover damages for personal injuries. Before King, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,980 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and instructions to the jury.</p>

<p>Appeal, No. 2, Oct. T., 1917, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1914, No. 116, on verdict for plaintiff, in case of Annie E. Brown v. Kittanning Clay Products Company.</p> <p>Trespass to recover damages for the death of plaintiff’s husband. Before King, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,000 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were instructions to the jury.</p>

<p>Appeal, No. 199, Jan. T., 1917, by defendant, from sentence of O. & T. Lackawanna Co., Oct. Sessions, 1916, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth of Pennsylvania v. Dominick Delfino.</p> <p>Indictment for murder. Before Moser, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict of guilty of murder of the first degree on which sentence of death was passed. Defendant appealed.</p> <p>Errors assignedamong others, were various rulings on evidence, alleged improper remarks by the district attorney and the charge of the court.</p>

Appeal, No. 145, Oct. T., 1917, by plaintiffs, from decree of C. P. Allegheny Co., Jan. T., 1917, No. 1228, in equity, dismissing bill in equity to have defendants declared trustees, in case of M. K. McMuIlin and Frank H. Clark, Partners, Doing Business as M. K. McMuIlin & Co., for Themselves and Such Other Creditors of the Security Investment Company (Other Than the Defendants) Who May Desire to Intervene and Become Parties Plaintiff, The Allegheny Trust Company v. H. H.…

<p>Appeal, No. 160, Oct. T., 1917, by defendants, from judgment of O. P. Allegheny Co., Oct. T., 1915, No. 630, on verdict for plaintiff in case of Pittsburgh Block Coal Company, a Corporation, v. Oliver Coal Company, a Corporation, and Maryland Casualty Company, a Corporation.</p> <p>Assumpsit on bond. Before Reid, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,350.67 and judgment thereon. Defendants appealed.</p> <p>Errors assigned, among others, were charge of court and in refusing defendants’ motion for .judgment non obstante veredicto.</p>

<p>Real estate — Deeds — Building restrictions — "Single dwelling house” on each lot — Erection of duplex building or apartment house —Bill in equity — Dismissal,</p> <p>1. Covenants restraining a man in the free enjoyment of his property are not to be extended by implication.</p> <p>2. The building of a duplex building or apartment, house is not a violation of a restriction limiting the owner to one dwelling house upon a lot, the test being whether the building is a single structure intended for dwelling purposes and not whether it was intended to house more than one family.</p> <p>3. Where the conveyance of a lot of ground from defendant to plaintiff contained a building restriction that but “a single dwelling house” should be erected on the lot, and also a covenant that like restrictions should be imposed in any other conveyance of property made by the defendant in the district mentioned, and thereafter conveyances of other lots were made by defendant with the provision that the restriction should not be construed to prohibit the erection of a duplex dwelling or apartment house, plaintiff’s bill in equity for the enforcement of the building restriction, on the ground that a duplex dwelling or apartment house was not “a single dwelling house” within the meaning of the covenant of his deed, was properly dismissed.</p>

<p>Constitutional law — Constitution of Pennsylvania, Art. III, Secs. 7 and 11, Art. IX, Sec. 7, and Art. I, Sec. 1 — Declaration of Bights — Local and special laws• — Gratuities—Contractors — Encroachment on judicial prerogatives — Counties—Contracts—Work done under unconstitutional act — Curative act — rConstitutionality— Acts of May 11, 1909, P. L. 608, and April 20, 1917, P. L. 90 — Statutes — Construction—Bill in equity■ — Injunction—Dismissal.</p> <p>1. All presumptions must be drawn in favor of the. validity of an act and the propriety of the legislative intention.</p> <p>2. The courts are loath to hold curative acts to be special or local legislation when they are drawn to apply to all persons, things or subjects affected by the conditions to be remedied.</p> <p>3. Where an act relating to counties in terms applies to all counties in the State, it is presumptively a general statute.</p> <p>4. Where the legislature has power to enact the substance of the matter covered by a statute which has been declared void because unconstitutional in form, it may subsequently ratify and make legal anything done under the prior void legislation which it might previously have authorized in due form. The authority of the legislature to ratify whatever it might have authorized is beyond question.</p> <p>5. The Act of April 20, 1917, P. L. 90, providing that whenever any county has entered into a contract for the construction of a public highway bridge or tunnel and the same has been completed in whole or in part, but (the county) was without power to pay for the worfe which had been actually done (becapsp the pet under which such work was done had been declared unconstitutional), such contract is valid and binding on the county to the extent only that such work and construction was done or made prior to the date on which said act was declared unconstitutional, and providing for the payment of such work from the county treasury, is not a local or special law in violation of Article III, Section 7, of the Constitution and is valid.</p> <p>Sample v. Pittsburgh, 212 Pa. 533, distinguished.</p> <p>6. The Act of 1917 does not offend against Article III, Section 11, of the Constitution, prohibiting legislation giving extra compensation to any public officer or contractor after services shall have been rendered or contract made or providing for the payment of any claim against the Commonwealth without previous authority of law, since such act applies to counties and not to claims against the Commonwealth, and makes no provision for extra compensation but merely for compensation for work not paid for.</p> <p>7. The Act of 1917 does not treat the obligations with which it deals .as gratuities, such as contemplated by the constitutional inhibition in Article IX, Section 7, of the Constitution, but as moral obligations that have ceased to be legal ones merely because of defects in the statute which authorized them.</p> <p>8. The legislature may impose a tax to pay the expense of a public improvement which had been made under invalid authority, and an- assessment for that purpose, or payment for such improvement from the moneys of the public treasury raised by general taxation or otherwise, is not a taking or deprivation of property, and the Act of 1917 is not therefore violative of Article I, Section 1, of the Constitution.</p> <p>9. The Act of 1917 is a curative act and does no more than to effectively authorize (within the restrictions of the statute) what had previously been defectively authorized by the Act of May 11, 1909, P. L. 506, and does not attempt to decide any judicial question, and is not an assumption by the legislature of judicial powers.</p> <p>10. County commissioners entered into a contract under authority of the Act of May 11, 1909, P. L. 506, for the construction of a public highway tunnel. Before the completion of the work the Act of 1909 was declared unconstitutional by the Supreme Court by reason of insufficiency of its title. After the passage of the curative Act of April 20, 1917, P. L. 91, a taxpayer’s bill was filed to enjoin payment to the contractor for work done on such tunnel prior to the date on which the Act of 1909 was declared unconstitutional, on the ground that the Act of 1917 was unconstitutional. Held, the bill was properly dismissed.</p>

<p>Boroughs — Eminent domain — Parks—Appropriation of land— Act of May 14., 1915, P. L. 312-1+12 — Indebtedness in excess of statutory limit — Failure to submit to vote of people — Failure to pay— Mandamus — Courts—Power over process.</p> <p>1. Any' court having jurisdiction to hear and determine civil cases has control over its own processes of execution, but such power may not be exercised arbitrarily but only when • sufficient legal reason is shown for the court’s interference.</p> <p>2. The right of boroughs to appropriate land for park purposes is purely statutory and can be exercised only as the terms and conditions of the statutes have been complied with.</p> <p>3. Under Section 3 and 4 of the Act of May 14, 1915, P. L. 312-412, giving boroughs the right to appropriate land for public park purposes, a borough will not be liable for the value of land appropriated where the value of such land exceeds one and one-half mills on the dollar of valuation of all property offices, professions, and persons in the borough upon which county taxes are rated and levied, except as the appropriation is approved by a majority vote of the borough. '</p> <p>4. Land appropriated by a borough ordinance for park purposes exceeded in value one and one-half mills on the dollar of the valuation of all property, offices, professions and persons in the borough, and such appropriation was not approved by a majority of the borough electors. The borough was without funds to pay the amount of the award, from which no appeal had been taken and upon which judgment- had been entered. The persons whose land had been taken issued a mandamus execution against the borough. At the instance of the borough the court made an order directing the borough to pay on account of the award “annually such an amount as will not exceed a total of one and one-half mills on the dollar, in three years, calculated on the basis of the valuation of property in said borough at the rate as may from time to time be assessed for county purposes,” the apparent purpose of such order being to make the writ effective for only so much in any one term of three years as the defendant borough could have been compelled to pay had the indebtedness incurred not been in excess of one and one-half mills on the dollar of the assessed valuation of the borough. Held, (1) the question of the appropriation of the property not having been submitted to the electors of the borough, the ordinance making the appropriation imposed no liability upon the borough, and the judgment was not ripe for final process to enforce its payment, (2) while it would not be in the power of the court to strike such judgment from the record the court has power to open such judgment for purposes of defense and in the present case it would be a clear abuse of discretion not to do so, and (3) the execution should be vacated and set aside.</p>

<p>Judgments — Judgment notes — Alleged alteration — Addition of seal — Evidence—Burden of proof — Presumption— Opening judgments — Discretion of court — Buie to strike off judgment — Laches— Bes adjudicóla.</p> <p>1. Although the addition of a seal after the signature of the maker of a note is such a material alteration as will avoid the instrument, an alteration by a third person, without the knowledge or consent of the party to the writing, cannot in any way affect the holder’s right or impair the validity of the instrument in its original form.</p> <p>2. In proceedings to open a judgment, entered upon a judgment note, evidence showing alterations subsequent to the execution of the instrument, upon which the judgment is based, is ample to meet the burden imposed upon the defendant by law to make a good defense by evidence sufficient to justify submission to the jury and to sustain a verdict for defendant if believed by the jury.</p> <p>3. The uncontradieted testimony of plaintiff and her witnesses to the effect that the addition of the seal was not made by her or by any one for her, at her request, does not shift to defendant the burden of showing who was responsible for its presence on the note.</p> <p>4. When an erasure, alteration or interlineation appears on the face of an instrument, there is primarily a presumption that the change was made before execution. If the alteration does not appear to be beneficial to the party offering the writing or if it is opposed to his interest, or if made with the same pen and ink and in the same handwriting as the body of the writing, this presumption remains unchanged. Where, however, the alteration is material, is beneficial to the party offering the writing, or if there be ■a change on the face of the instrument which appears suspicious, the presumption disappears and the burden is on the party offering the writing to explain the alteration to the satisfaction of the jury.</p> <p>5. In proceedings to ox>en a judgment entered upon a judgment note, on the ground that, after the execution of the note, a seal had been added thereto, where the plaintiff neither admits nor directly denies the subsequent alteration but states that no alteration was made by her or for her with her authority, such testimony is wholly insufficient to enable the court to say as a matter of law that she has met the burden and satisfactorily accounted for the altered condition of the writing, and, as in such ease the real dispute is not so much as to the fact of adding the seal as by whom added, such question is one of fact for the jury, and the court did not err in opening the judgment.</p> <p>6. In such case the fact that a motion to strike the judgment from the record had been dismissed, was not res adjudicata of the question involved as the mere fact that the seal was in a different handwriting from that of the maker of the note, was not such an irregularity as would warrant the striking off of the judgment.</p> <p>7. In such cáse the defendant was not guilty of laches in taking the rule to open the judgment where it appeared that the judgment was entered on November 5, 1914, that a rule to strike off the judgment was taken on November 28th following, and was discharged on September 1, 1916, and on September 14, 1916, a petition to open the judgment was filed.</p>

<p>Appeal, No. 146, Oct. T., 1917, by plaintiffs, from decree of O. P. Allegheny Co., Oct. T., 1916, No. 2056, in equity, dismissing bill in equity for injunction in case of Pittsburgh Railways Company, Consolidated Traction Company and The Suburban Rapid Transit Street Railway Company, Corporations of Pennsylvania, v. The Borough of Carrick, a Municipal Corporation, and Charles F. White, J. A. Haupt, John McCarthy, Harry Beardshaw and John Seiferth, Members of the Council of the Borough of Carrick.</p> <p>Bill in equity for injunction to restrain a borough from interfering with operations of complainant company in laying switches connecting its tracks in the highway Avith its car barn. Before Shafer, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The loAver court dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned, among others, was in dismissing the bill.</p>

<p>Practice, O. P. — New trial — Order granting new trial — Judicial discretion.</p> <p>1. Whenever a trial court is convinced that a verdict has been obtained through improper influence exerted upon witnesses, it is not only the right, but it is the duty, of the court in the interest of public justice to order a retrial of the case.</p> <p>2. A motion for a new trial is always an appeal to the discretion cf the trial court, and the action of the lower court thereon is reyiewable by the Supreme Court only as it can be made to appear that the court’s action was a clear abuse of that discretion.</p> <p>3. The action of a court in conditioning its grant of a motion for a new trial on the refusal by the defendant to pay a certain sum into court to the use of the plaintiff, in satisfaction of all his claims and demands, is not free from criticism.</p>

<p>Appeal, No. 11, Oct. T., 1917, by plaintiff, from judgment of Superior Court, April T., 1916, No. 129, reversing judgment of C. P. Allegheny Co., Oct. T., 1914, No. 1410, for plaintiff, for want of a sufficient affidavit of defense, in case of David Hunter, Jr., Receiver of the Land Trust Company, v. J. F. Henning.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Court of Common Pleas entered judgment in favor of plaintiff. The Superior Court reversed the judgment of the Court of Common Pleas. Plaintiff appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Mortgages — Death of mortgagor — Decedent's estate — Scire facias against heirs — Failure to join administrator — Affidavits of defense —Insufficiency.</p> <p>1. While lands are assets for the payment of debts, they are not assets in the hands of an administrator and without an order of the Orphans’ Court he has nothing to do with them. In case of intestacy they descend to the heirs, and if needed for the payment of debts they must be converted in the manner provided by the statutes.</p> <p>2. In an action of scire facias sur mortgage, where it appeared that the mortgagor had died intestate, the heirs were properly made parties defendant and it was not necessary that the administrator of the decedent be joined, in the absence of anything to show that the decedent’s real estate was needed for the payments of debts, and the court properly held insufficient an affidavit of defense which merely set up that the action could not be maintained because the administrator has not been joined as party defendant.</p> <p>3. In such case where the note was under seal there is no merit in the contention that the mortgagor was not a party to the note and it- was therefore without consideration, where no failure or illegality of consideration is alleged.</p> <p>, 4. The doctrine that interest as against the surety does not begin with the default by the principal, but from the time when demand was made, applies only to cases arising ,on. official bonds.</p>

<p>Negligence — Master and servant — Calling another to assist servant — Injuries to the person called — Judgment for defendant n. o. v. 1. While the relation of master and servant cannot he imposed upon a person without his consent, express or implied, a servant may engage an assistant, in ease of an emergency, when he is unable to perform the work alone, and such assistant becomes, for the time being a servant of the master whose employee engaged him.</p> <p>2. Where in such an emergency such temporary employee is injured in consequence of defects in the premises upon which he is requested to work he may hold the master of the servant who called him to assist liable for such injury but in such ease he must establish that an emergency existed sufficiently great to warrant the calling upon him for aid.</p> <p>3. Where the driver of a motor truck, owned and operated by a brewing company, lost his way and requested a friend to ride with him to point out the direction in which he should go, and the friend of such driver complied with such request and rode for a distance in the motor truck and was injured in consequence of defects therein, he could not hold the owner of the motor truck liable for such injuries in the absence of anything to show that his presence on the truck was necessary to guide, the driver to the proper road, particularly where it further appeared that the way was easy to find and that a description thereof would have been sufficient.</p>

<p>Appeal, No. 181, Oct. T., 1917, by defendant, from judgment of C. P. Allegheny Go., Oct. T., 1917, No. 1008, for plaintiff, on case stated, in case of Teany Smith v. J. George Young.</p> <p>Case stated to- determine plaintiff’s interest in certain real estate. Before Evans, 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>Negligence — Railroad crossings — “Stop, loolc and listen” — Presumption — Contributory negligence — Burden of proof — Nonsuit— Evidence — Leading question.</p> <p>1. While the plaintiff is bound to prove negligence on the part of defendant in an action for personal injuries and that this negligence was the cause of the injury, ho is not bound to go further and prove that he did not contribute to the result by his own negligence. That burden is on defendant unless the evidence produced discloses contributory negligence.</p> <p>2. The rule of Carroll v. Penna. E. E. Co., 12 W. N. C. 348, applies only where a person enters upon a railroad track, and is struck by a moving train so instantaneously as to raise a legal.presumption that he did not stop, look and listen, and to rebut any presumption that he had done so. Where there is a doubt as to the negligence upon the part of the plaintiff, the case is for the jury.</p> <p>3. In an action against a railroad company to recover damages for personal injuries sustained in a grade crossing collision, where it appeared that at the place where the accident occurred the defendant maintained six tracks, and that approaching the tracks from the direction from which the plaintiff came there were two side tracks, an open space twenty-four feet in width, and then four main tracks; that as plaintiff approached the side tracks he stopped and looked up and down the tracks and waited for a freight train to pass; that he then crossed the side tracks, and while in the space between the side tracks and main tracks looked up and down and heard no train coming but did not stop, although there was sufficient space for him to do so; that the rear of plaintiff’s sled was struck just as it was about ,to cross the far rail of the last main track, the question of plaintiff’s contributory negligence, including the question whether he should have stopped again after entering upon the side tracks, is for the jury.</p> <p>4. The common law rule is that a question is leading where it embodies the material facts, and admits of an answer by a simple affirmative or negative; but in modern times this rule has been somewhat departed from by a number of decisions which hold that such a categorical question is not necessarily leading, providing of course that it is not so framed as to give an intimation as to which answer is desired.</p> <p>5. Where in an action for injuries sustained at a railroad grade crossing plaintiff’s counsel asked “Did you hear any train coming down ?” and plaintiff answered, “No.” and thereupon plaintiff was asked “Did you listen for a train coming down?” the contention that the question was leading was without merit, and the court erred in sustaining'an objection thereto.</p> <p>6. In such case the question “Were you in a position where you could have heard the whistle of that train if it had been blown,” put to one of plaintiff’s witnesses on direct-examination, does not indicate the answer desired and therefore is not leading and was erroneously excluded by the trial judge.</p>

<p>Corporations- — Receivers—Payments — Losses — Issue of unauthorized certificates — Surcharge—Payments directed by order of court — Subsequent order — Priority.</p> <p>1. Where a business is being conducted at a loss a receiver cannot take advantage of his position and pay himself in full at the expense of other creditors, as his equity is not superior to theirs.</p> <p>2. A receiver may properly he surcharged for the amount paid by him on unauthorized certificates and for the amount expended by him in repayment of money borrowed without authority.</p> <p>3. Where the proceeds of unauthorized certificates and notes went into the business, a receiver surcharged therefor has an equitable claim equal to that of other creditors, but is not entitled to priority.</p> <p>4. An order of court directing a receiver to continue the business, implies the authority tó purchase supplies necessary for that purpose.</p> <p>5. A receiver is not personally liable merely because the business may have been conducted temporarily at a los.s, especially where he acted in good faith and the loss did not result from his misconduct or negligence.</p> <p>6. While a receiver will be held to a rigid accountability, nothing more is required of him than that he act in good faith and exercise the discretion and prudence of ordinarily careful men in pursuits of similar character.</p> <p>7. Where an order of court expressly charges the funds in the receiver’s hands with the payment of authorized certificates, the payment thereof should be made to the holders prior to the receiver’s commission fixed by a subsequent order of court.</p> <p>8. Upon exceptions to the report of an auditor to pass upon the account of a receiver, it appeared that the receiver had continued the business under an order of court, that in some months there were losses and in others profits, but that there was a total loss in the conduct of the'business during the receivership, the auditor found that some of the expense incurred in closing out the business might have been eliminated by winding up the business at an earlier date, but there was no finding as to the amount of loss thereby sustained, and no sufficient evidence upon which such a finding could have been based. There was no sufficient evidence to indicate want of proper care and attention to the business on the part of the receiver. Held, the receiver was improperly surcharged for ■fffie amount of the loss under the receivership.</p> <p>9. In such ease where the fund for distribution was not sufficient to pay in full all the preferred claims, an order was made directing payment in full of local taxes, expenses of the audit, costs of appeal, counsel fees, payment of certificates authorized by the court, and after the payment of such special claims directing the balance to be distributed to the receiver to apply upon his claim for compensation and for the amount paid a watchman whose appointment had been authorized by the court.</p>

<p>Negligence — Master and servant — Electric company — Wires — Defective transformers — Notice—Death of lineman — Presumption of care — Contributory negligence — Conflicting facts — Case for jury.</p> <p>1. Where a lineman employed by an electric company is killed while working around live wires on a telegraph pole he is presumed to have used care.</p> <p>2. Where the facts or inferences upon which the question of contributory negligence depends are in doubt, that question, if controlling, must be submitted to the jury.</p> <p>3. In an action against an electric company to recover for the death of plaintiff’s son, who was employed by defendant as a lineman, the question of defendant’s negligence and the contributory negligence of the decedent are for the jury where it appears that defendant’s foreman, a vice-principal, directed decedent to connect certain wires at or near a transformer, which, had been out of repair and in a leaky condition for some time and to such an extent as to electrify the metal case, of which fact defendant had notice; that decedent climbed the pole pursuant to such direction and immediately came in contact with the transformer, apparently by his arm touching- the live case as he put it in the four-inch space between the case and the buck-arm while fastening his safety belt around the pole; that decedent had been employed aá a lineman for from ten to twelve months and was ranked in the lowest of three classes of workmen as to experience and efficiency; and although he had been instructed as to the dangers of the business and warned not to touch a transformer case, he had not been warned of the defective condition of the transformer in question.</p>

<p>Appeal, No. 94, Oct. T., 1917, by plaintiffs, from judgment of O. P. Allegheny Co., July T., 1914, No. £196, refusing to take off compulsory non-suit in case of Edmund E. Puhlman, a Minor, by His Next Friend and Father, Carl H. Puhlman, and Carl H. Puhlman in His Own Right, v. Excelsior Express and Standard Cab Company.</p> <p>Trespass for personal injuries. Before Sharer, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered a compulsory nonsuit which it subsequently refused to take off.. Plaintiffs appealed.</p> <p>Error assigned was in the refusal to take off the non-suit.</p>

<p>Negligence — Defective sidewalk — Flagstone — Boots of trees— Liability of property owner — Qase for jury.</p> <p>In an action by a pedestrian to recover for personal injuries resulting from a defect in a sidewalk causing ber to trip and fall, the ease is for the jury and a verdict and judgment for the plaintiff will be sustained where it appeared that at the point of the accident the outer edge of the flagstone pavement had been raised to a height of from four to six inches at the surface by the growth of the roots of a tree; that at the time of the accident it was almost dark, snow was falling and nearly two inches of snow covered the ground; that plaintiff was looking in front of her for a distance of from four to six feet and did not see the defect in the sidewalk until she had fallen, and while still on the ground discovered the cause of her accident.</p>

<p>Appeal, No. 100, Oct. T., 1917, by defendant, from judgment of C. P. Allegheny Co., Oct. T., 1915, No- 62, on verdict for plaintiff in case of Ella J. Swartz v. Bergendahl-Knight Company, an Illinois corporation.</p> <p>Trespass for personal injuries. Before Carnahan, J.</p> <p>Verdict for plaintiff for $5,400 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment non obstante veredicto.</p>

<p>Contracts — Contracts for benefit of third person — Beneficiary’s right to sue — Evidence—Deeds—Consideration—Parol evidence of different consideration — Witnesses — Competency — Testimony of surviving party — Act of May 28, 1887, P. L. 158, Sec. 5, Clause e.</p> <p>. 1. To the rule that at common law no one could maintain an action upon a contract to which he was not a party, there are exceptions where the promise to pay the debt' of a third person rests upon the fact that money or' property is placed in the hands of the promisor for that particular purpose, and where one buys out the stock of a tradesman and undertakes to take the place, fill the contracts and pay the debts of his vendor.</p> <p>2. Parol evidence is competent for the purpose of showing that the consideration for the conveyance of real estate is other than that expressed in the deed.</p> <p>3. To disqualify a surviving party to a contract from testifying, he must not only be a surviving and remaining party but must have an interest adverse to the right of the deceased party, under the Act of May 23, 1887, P. L. 1S8, Section 5, Clause e. It is the adverse interest, not the adverse testimony, that disqualifies a witness.</p> <p>4. Where a person conveys real estate, on the grantee’s express oral promise to pay, to a third person, the amount received from the subsequent sale of the property, and thereafter the grantee dies without having fulfilled the promise, the grantor is a competent witness to testify in behalf of the beneficiary’s claim against the grantee’s estate.</p> <p>5. A claimant against a decedent’s estate presented evidence that a conveyance of an interest in certain real estate had been made by claimant’s mother to decedent in her lifetime on decedent’s oral promise that in case she should sell it during her lifetime she would pay the claimant the full ¿mount invested therein by plaintiff’s father, and if she did not sell same would bequeath said amount to claimant. The deed recited a valuable consideration, but there was evidence that no actual consideration had been paid. Decedent did not sell the real estate and at her death bequeathed $1,000 to claimant. Claimant’s mother testified as to such oral contract, although the existence thereof was denied by decedent’s children, who claimed that at the timé of the delivery of the deed- theré Was a'default in payment of the money due -on- a mortgage >and that the property was conveyed to prevent foreclosure proceedings. The auditing judge allowed the claim less the amount of the legacy of $1,000. Held, (1) claimant was entitled to recover on the contract, being the only person beneficially interested in the payment of the money, (2) claimant’s mother was a competent witness to prove the oral contract as she was not an adverse party, and (3) there was sufficient evidence to sustain the finding of the auditing judge in claimant’s favor and the finding will be sustained.</p> <p>Hoffa v. Hoffa, 38 Pa. Superior Ct. 356, approved.</p> <p>Practice, Supreme Court — Appeals—Auditing judge — Findings of fact — Conclusiveness.</p> <p>6. In the absence of a clear and manifest error the findings of fact of an aüditing judge on conflicting evidence will he sustained.</p>

<p>Appeal, No. 131, Oct. T., 1917, by defendant, from judgment of C. P. Allegheny Co., July T., 1916, No. 342, on verdict for plaintiff in case of Jobn M. Royer v. Pennsylvania Railroad Company.</p> <p>Trespass for personal injuries. Before Carnahan, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict for plaintiff for $5,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing défendant’s motion for judgment non'obstante veredicto.</p>

<p>Appeal, No. 135, Oct. T., 1917, by plaintiff, from judgment of O. P. Allegheny Co., Oct. T., 1917, No. 1527, on directed verdict in case of Mary Krenn v. Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company, a Corporation.</p> <p>Trespass for personal injuries. Before MACE ARCANE, J.</p> <p>The facts apirear by the opinion of the Supreme Court.</p> <p>The trial judge directed a verdict for defendant upon which judgment was entered. Plaintiff appealed.</p> <p>Error assigned, among others, was in directing verdict for defendant.</p>

<p>Appeal, No. 142, Oct. T., 1917, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1916, No. 78, on verdict for plaintiff in case of Mike Jelic, a Minor, otherwise known as Check No. 5, by his Brother and nest Friend, Vincent Jelic, v. Jamison Coal & Coke Company, a Corporation.</p> <p>Trespass for personal injuries. Before Shafer, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among- others, was in refusing defendant’s motion for judgment non obstante veredicto.</p>

<p>Beneficial associations — Insurance companies — Distinction—Bylaws of society — Death benefits — Failure to include by-laws in certificate — Evidence—Unauthorized, circular by officer — Acts of May 11, 1881, P. L. 20, and April 6, 1898, P. L. 7 — Case for jury.</p> <p>1. A controlling test as to whether an organization is a beneficial association or an insurance company is whether the organization comes within the definition of the Act of April 6, 1893, P. L. 7, which declares that a fraternal beneficial association is a corporation, society or voluntary association organized and carried on for the sole benefit of its members and their beneficiaries and not for profit, “and in which the payment of death benefits shall be to families, heirs, blood relatives, affianced husband or affianced wife of, or to persons dependent upon the member.”</p> <p>2. A society organized as a social institution with a provision for insurance not as a means of profit but in the exercise of a benevolent and fraternal purpose, and governed through a branch system with a form of initiation, requiring that an applicant can be admitted to membership only after investigation and report by the board of trustees of the branch, and a favorable ballot by the menabers present at a regular meeting, and requiring that the designation of beneficiaries be limited to relatives or dependents of the member, or to a charitable institution of which he may be an inmate, and stipulating that no member may belong to two branches of the association at the same time, is a beneficial association and not an insurance company.</p> <p>3. The Act of May 11, 1881, P. L. 20, providing that where an insurance policy refers to the constitution and by-laws of the insurer as forming part of the insurance contract, such constitution and by-laws shall not be admissible in evidence unless a copy thereof be attached to the policy, applies to insurance companies and not to beneficial associations.</p> <p>4. In an action against such organization by the wife of a member, the statement of claim averred that plaintiff’s husband had left homo and had not been heard of for a period of more than seven years, and that the presumption of his death had therefore arisen. The by-laws of the association provided that “no time of absence or disappearance of a member, without proof of actual death, shall entitle his beneficiary, family or next of kin to receive any part or portion of the said fund,” except only where the disappearance had been for a period of twenty years. The trial judge excluded the application for membership, the medical certificate and the constitution and by-laws of the association on the ground that these papers were not printed in or attached to the certificate as required by the Act of May 11, 1881, P. L. 20, relating to insurance companies. Held, (1) the defendant society was a beneficial association and not an insurance company, (2) the evidence referred to was improperly excluded, and (3) the court erred in giving binding instructions for the plaintiff.</p> <p>5. In such case a circular issued by the grand secretary of the defendant without the proper authority of the organization, may be admissible as tending to modify or contradict some of the testimony of that official, but is not admissible as affecting the purpose' or character of the defendant.</p> <p>Ogle v. Barron, 247 Pa. 19, followed; Marcus v. Heralds of Liberty, 241 Pa. 429, distinguished.</p>

<p>Jurisdiction, G. P. — Public Service Commission — Complaint— Street railways — ■Change of mies — Reasonableness—Boroughs— Contracts — Bill in equity — Dismissal—Findings of Public Service Commission — Appeal—Practice, C. P. — Act of July 26, 1918, P. L. 187^ — Trial by jury.</p> <p>1. Since the Act of July 26, 1913, P. L. 1374, matters within the jurisdiction of the Public Service Commission, including the reasonableness of rates charged by public service corporations, must first be determined by it, in every instance, before the courts will adjudge any phase of the controversy.</p> <p>2. The decision of the Public Service Commission on the subject of rates is .subject to review, and the courts are vested with the right and fixed with the duty of passing upon the record brought up on appeal, which record shall include the testimony, the findings of facts, if any, of the commission based upon such testimony, a copy of all orders made by the Commissicn in said proceedings, and a copy of the opinion, if any, filed by the commission.</p> <p>3. In cases where,the parties had a right to trial by jury before the Act of 1913, such right is still preserved to them.</p> <p>4. It is the duty of the reviewing court, if it shall find from the record that an order of the Public Service Commission appealed from is unreasonable, or based upon incompetent evidence materially affecting the determination or order of the commission, or is otherwise not in conformity with law, to enter a final decree reversing the order of the commission, or, in its discretion, to remand the record to the commission with directions to reconsider.</p> <p>5. The fact that no complaint is made to the Public Service Commission when an application for a change of rate is filed with that body, does not prevent any person affected thereby from subsequently entering a complaint.</p> <p>6. Where a contract fixing a rate unlimited in time has been entered into by a public service company with a borough prior to the Act of 1913, the State has the right, under authority of that act, through the Public Service Commission, notwithstanding the contract, to inquire into and adjust the rate to a reasonable basis.</p> <p>1. A bill in equity brought by a borough against a street railway company to restrain defendant either from running its cars over a certain route or from charging more than a certain fare, on the ground that the proposed increase of fare was unreasonable and that a contract existed with the borough under which the defendant was prohibited from charging a higher rate, was properly dismissed for want of jurisdiction where it appeared that the matter had not been submitted to the Public Service Commission.</p> <p>8. In such ease the borough should file its complaint with the Public Service Commission, and if the commission permits the increase, the borough can, on appeal, raise all questions properly involved in which it has an interest and have them passed upon by the courts.</p>

<p>Appeal, No. 165, Oct. T., 1917, by defendant, from judgment of C. P. Cambria Co., Dec. T., 1913, No. 18, E. D., on verdict for plaintiff, in case of Homer D. Williams and John F. Williams, for use of George Panagotacos, now George Panagotacos, v. A. Notopolos.</p> <p>Rule to open a confessed judgment entered by virtue of warrant in a lease. Before Stephens, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court opened the judgment.</p> <p>Verdict for plaintiff and judgment thereon. Defendant appealed.</p> <p>Errors assigned were, rulings on evidence, and in refusing to enter judgment for defendant n. o. v.</p>

<p>Contracts — Action on several contract — Presumptionr^Set-off— Joint debt — Affidavit of defense — Insufficient averments — Corporation defendant — Affidavit by person not officer — Insufficiency— Act of May 14, 1915, P. L. 483 — Practice, C. P.</p> <p>1. A claim due from plaintiff and others, jointly, cannot be set off in; an action of assumpsit brought by plaintiff- alone, because to allow such a set-off -would compel .the latter to pay individually a debt 'for which he is’ liáble only when called upon jointly with others. , .</p> <p>2. Two or more persons sued jointly may set off a debt due by the plaintiff to any one of them, and one of two joint, obligees, with the consent of the other, may use the obligation as an equitable defense in an action by the obligor against one of them alone.</p> <p>3. At common law there are three distinct forms of obligations ex contractu: (1) joint, (2) several, and (3) joint and several. In an action on the first, it was necessary to sue all the obligors together, or the survivors of them; on the second, the obligors had to be sued separately; but on the third, the plaintiff could elect to sue separately or jointly.</p> <p>4. The question whether a contractual promise, made by two or more persons, is joint, several, or joint and several, depends upon the intention of the parties as evidenced by the language employed in the agreement under consideration, the general rule being that, in the absence of an apparent intent to the contrary, such promises are presumed to be joint, and not several or joint and several.</p> <p>5. The Practice Act of May 14, 1915, P. L. 483, providing that affidavits of defense shall be sworn to by the defendant or some person having knowledge of the facts, does not change the requirements theretofore existing for such affidavits when made by agents of corporations, who are not regular officers acting within the scope of their authority.</p> <p>6. An affidavit of defense filed on behalf of a corporation is insufficient where it is not made by an officer of the corporation but by a person styling himself as “chief accountant,” where there is nothing to show why it is not made by an officer of the corporation, and there is no averment that the affiant had personal knowledge of the facts averred.</p> <p>7. In an action on a written contract to recover for natural gas sold defendant company, defendant filed an affidavit of defense, and a supplemental affidavit, averring by way of set-off that prior to the contract in suit the plaintiff and five other persons entered into a written contract with defendant whereby the former sold the latter all the gas from a certain other tract of land, but thereafter diverted such gas belonging to defendant to an amount in value exceeding plaintiff’s present claim. The affidavit of defense was made by the chief accountant- of the defendant but did not state that he was an officer of the corporation. Held, judgment was properly entered for plaintiff for want of a 'sufficient affidavit of defense.</p>

<p>Appeal, No. 111, Oct. T., 1917, by plaintiff, from decree of C. P. Somerset Co., Equity Docket, 1910, No. 14, refusing an injunction, in case of Elsie Croyle v. Johnstown Water Company.</p> <p>Bill in equity for an injunction. Before Bailey, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and conclusions of law, and the decree of the court.</p>

<p>Municipalities — Official bonds — Default—County auditors — Audit — Failure to appeal — Sureties-r-Liability for defalcation of principal — Jxidgment for defendant.</p> <p>1. An action at law will not lie on an official bond until there has been an accounting before the county auditors, who constitute a special tribunal, created by statute for the purpose of adjusting the accounts of such officers and determining the amount due to or from them. This decision, unappealed from, is conclusive and precludes an action at common law for an unadjudicated account.</p> <p>2. The sureties on an official hond given by the treasurer of the directors of the poor, will not be liable for an embezzlement committed by the principal, where it appears that the books, vouchers and other documents, relating to the accounts of the treasurer, were submitted to the county auditors and audited, and no defalcation was found; and it is not material that the attention of the auditors was not called to the items for which the action was brought.</p>

<p>Negligence — Oil companies — Fires—Origin—Engines—Hoi tube method — Dangerous machinery — Custom of business — •Proximate cause — Case for jury.</p> <p>1. In an action against an oil company to recover damages for injuries to plaintiff’s premises caused by fire alleged to have been communicated from defendant’s pumping station, tbe case is for tbe jury and a verdict for the plaintiff will be sustained where it appeared that the engines in such station were equipped with the hot tribe method of ignition causing an open flame to come in contact with escaped oil, and such method of operation was more dangerous than that customarily in use.</p> <p>2. In such ease plaintiff was not bound to exclude by her proofs every possible theory as to the fire’s origin at variance with her own, but was required only to exclude every other reasonable theory.</p>

<p>Appeal, No. 128, Oct. T., 1917, by petitioner, from order of C. P. Venango Co., Aug. T., 1916, No. 55, dismissing petition for rule to show cause Avhy an issue in ejectment should not be framed, in re Petition of Mazie E. Bell, for rule on Margaret Rollo, Widow, and John M. Sykes and Robert F. Glenn, Executors of Charles A. Rollo, deceased, to show cause why an. issue should not be framed in ejectment.</p> <p>Petition for rule to show cause why an issue in ejectment should not be framed to determine title to land. Before Criswell, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the petition. Petitioner appealed.</p> <p>Errors assigned were rulings on evidence and in dismissing the petition. •</p>

<p>Appeals, Nos. 5 and 6, Oct. T., 1917, by defendant, from judgment of C. P. Armstrong Co., Dec. T., 1915, No. 189, on verdicts for plaintiffs, in case of Frederick Chabot and Paul Chabot by his father and next friend, Frederick Chabot, v. Pittsburgh Plate Glass Company.</p> <p>Trespass to recover damages for-personal injuries. Before King, P. J.</p> <p>The opinion of the Supreme Court States the.facts.</p> <p>Verdict for plaintiff, Frederick Chabot, for $711.51, and for plaintiff, Paul Chabot, for $4,258.49"'and judgments thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Corporations — Directors—Fight for control — Issuance of stock— Purchase by directors present at meeting — Bight of stockholders to participate in issue — Setting aside of issue — Trust—Fraud— Remedy at law — Equity—Jurisdiction—Bill in equity by stockholder — Injunction.</p> <p>1. While the general rule is that a stockholder is not warranted in proceeding as an individual to redress a wrong done to the corporation, without a formal demand and refusal of the corporation to bring proper action, yet stockholders are not required, either in law or in equity, to do a vain or foolish thing-, and where the wrongdoers are the majority of the board of directors, who committed the wrong complained of, it is not reasonable to suppose that a demand upon them to bring corporate action would produce results, and under such circumstances stockholders are justified in instituting proceedings in their own name, without first demanding action on the part of the corporate officers.</p> <p>2. Where the question of the control of a corporation is involved, the remedy at law for damages for the improper sale of stock is inadequate, and where an averment of fraud on the part of those having management of the company appears, as against the rights or the interest of the stockholders, a court of equity has jurisdiction to inquire into the transaction and make such decree as the circumstances may warrant.</p> <p>3. The directors of a corporation stand in the position of trustees for the entire body of stockholders, and while stock owned by a director is his individual property, to be dealt with as he sees fit, yet when he acts in his official position he is acting not merely as an individual but as representative of others and is prohibited from taking advantage of his position for his personal profit or benefit to the detriment of the stockholders whom he represents.</p> <p>4. The directors of a corporation are bound to give stockholders notice of a new issue of stock and an opportunity to subscribe for the stock in proportion to their present holdings, although such issue may be long after the business of the corporation was begun; and where the directors fail to give such notice, but purchase the stock themselves for the purpose of gaining control of the corporation, the issue may be set aside at the instance of a stockholder.</p> <p>5. In a suit in equity brought by a stockholder of a brewing company on behalf of himself and other stockholders who might join, praying for a declaration that a certain stock certificate issued to a director of the company was invalid, it appeared that the stockholders and directors had been split into two factions, and that a majority of the board of directors owned and controlled only a minority of the stock while the other directors owned or controlled the majority. At a meeting of the board attended by the directors in sympathy with the minority interests, an issue of 250 shares of treasury stock was authorized, in pursuance of which the fifty shares in question were issued to one of the directors present, which gave the directors voting for the issue control of a majority of the stock. No opportunity was given the other stockholders, including the plaintiff, to take up any part of the new issuo. Defendants contended that the stock was issued to put the corporation in funds to pay a note which the company had endorsed. There were other assets available for payment of the note. Held, (1) the finding that the issue was for the purpose of gaihing control of the corporation was amply supported by the evidence; (2) even had there been sufficient reason for the issuance of the new stock, the directors had no right to subscribe therefor without first notifying the stockholders and giving them an opportunity to take up the stock in proportion to their present holdings; (3) under the circumstances, the fact that no previous demand was made by the plaintiffs on the corporation to take action in the matter is immaterial, and (4) the decree granting the relief prayed for was properly entered.</p>

<p>Practice, Supreme Court — Appeals—Errors due to conduct of appellant's counsel — Assignments of error — Defective assignments.</p> <p>In an action of assumpsit brought by a physician to recover compensation for professional services, where the controlling questions of fact and law were not numerous, intricate or confusing, blit were made so by the conduct of counsel during the trial, and upon a review of the whole record, it appeared that, under the competent evidence submitted to the jury, there was no merit in tbe plaintiff’s claim, a verdict for the defendant will be sustained although there might have been technical errors, resulting from the conduct of counsel at the trial, especially where the rules relating to assignments of error were violated.</p>

Appeal, No. 153, Oct. T., 1917, by plaintiff, from final order of C. P. Armstrong Co., Sept. T., 1915, No. 99, refusing to take off nonsuit, in case of Joe Cossette v. Paulton Coal Mining Company. Trespass to recover damages for personal injuries. Before King, P. J. The opinion of the Supreme Court states the facts. Tbe court entered a compulsory nonsuit, which it subsequently refused to take off. Error assigned was in refusing to take off the nonsuit.

<p>Workmen’s compensation law — Award by Workmen’s Compensation Board — Appeal to Common Pleas Court — Order remanding case to board — Erroneous order — Practice, C. P.— Practice, Supreme Court — Interlocutory order.</p> <p>On appeal to the Common Pleas from a decision of the Workmen’s Compensation Board, affirming' the finding of a referee in favor of a claimant, the court should enter a final judgment awarding to each dependent the amount due him; and where the court remands the case to the Workmen’s Compensation Board for adjustment in accordance with the court’s opinion, the Supreme Court, on appeal, will remand the record to the Common Pleas with directions to enter a final judgment.</p>

Appeal, No. 42, Oct. T., 1917, by defendant, from judgment of C. P. Washington Co., Nov. T., 1915, No. 423, on verdict for plaintiff, in case… Held: that there was evidence tending to show that the defendant was negligent and that the plaintiff was in the exercise of due care; that whether the plaintiff assumed the risk was a question of fact for the jury; and that it could not be said as a matter of law that she appreciated the risk or that she was not acting under such an…

<p>Appeal, No. 139, Oct. T., 1917, by The Laurel Hill Valley Coal & Coke Company and Henry D. Green, from decree of O. C. Somerset Co., 1917, No. 9, refusing specific performance of a contract, in Estate of Cyrenius W. Kutz, Deceased.</p> <p>Petition for specific performance of a contract for tbe sale of real estate.</p> <p>Ruppel, P. J., filed tbe following opinion:</p> <p>While there has been considerable testimony taken, there is very little dispute as to the facts, and instead of stating the facts separately in order as requested by counsel for respondents, the court deems it sufficient to give a narrative statement- covering such facts as are important in the case.</p> <p>Cyrenius W. Kutz, a resident of Somerset County, ivas the owner of certain lands and minerals situate in Somerset County and on the 30th day of January, 1911, he executed two articles of agreement one relating to certain lands owned by Mr. Kutz, in fee simple, and the other relating to coal and other minerals. Both agreements are substantially the same in form and are made by Mr. Kutz of the first part, and “Henry D. Green, attorney for a proposed corporation of Pennsylvania, with $50,000 capital stock of the second part.” For the several tracts of land owned in the fee simple by Kutz, the consideration ivas fixed at $12,354, and for the coal and mineral only, the consideration was fixed at $12,604, to be paid “in the following manner: One dollar down at the signing of the agreement, 10 per cent, in capital stock in the proposed corporation above mentioned, and the remainder to be secured by a bond and mortgage of said corporation upon the premises described below, within three years from the date of said mortgage, interest to be paid at 5 per cent, after possession is delivered to mortgagor......And upon payment of said purchase-money provided above, the said party of the first part will at the proper charge of the said party of the second part, make, execute and deliver to the said party of the second part a good and sufficient deed, etc.. ■.. .And it is further agreed by and between the said parties that possession of the said premises shall be delivered to the party of the second part, his heirs or assigns, on the day possession is requested in writing by the said party of the second part, his heirs or assigns, until which time the said party of the first part shall be entitled to have and receive the rents, issues and profits thereof......It is further agreed that the said party of the first part will execute and deliver the deed of conveyance as above mentioned, to the directors of the proposed corporation after a charter has been granted and that upon delivery of, such deed, said corporation will execute the mortgage above referred to as part of the consideration, and make out certificates of stock to the said party of the first part for the amount of the purchase-money, which is to be payable in stock; said mortgage after execution and said stock after being issued, is to be placed in the hands of the directors of said corporation with the executed deeds, they to hold the same until the property is sold and thereby money is raised to pay off the mortgages and the amounts due on distribution among the stockholders.”</p> <p>On the 23d of October, 1911, an application was filed for a charter for the Laurel Hill Valley Coal & Coke Company; the purpose of the corporation being stated to be the mining, selling and shipping of coal and other minerals incidentally developed, and the making of coke and its products from such sale, and as far as may be necessary for the purposes of said business, acquiring, holding and disposing of coal, coal lands and other real and personal property, and transacting such other business as is incidental to said purposes. The amount of the capital stock of the corporation was fixed at $50,000 divided into 1,000 shares of the par value of $50 each. Among the subscribers to the capital stock is the Laurel Hill Lumber Company, 90 shares; C. W. Kutz, 52 shares; Cosmos D. Kutz, 2 shares; Daniel H. Schweyer, 12 shares, and Albert Knabb, 5 shares. The last of the three above-named paid their subscriptions to stock and are the only ones who paid any money on the stock subscriptions. The officers of the corporation sold stock of the company to the amount of $5,000 which was paid into the treasury.' This money was the only asset of the corporation. The charter was duly recorded in Berks County but was not recorded in Somerset County.</p> <p>On the 11th of November, 1911, at a meeting of the stockholders of the Laurel Hill Valley Coal & Coke Company, the following resolution was unanimously adopted: “Resolved, That in the mortgages directed to be given to the company according to the agreement of incorporation, they be made payable on or before July 1, 1914, and it be provided in said mortgages and deeds that the privilege be given to any landowner to withdraw his land after said date, upon cancellation of the mortgage and the shares of stock issued to him on account of the purchase-money.”</p> <p>On the 23d of January, 1912, a meeting of the stockholders of the Laurel Hill Valley Coal & Coke Company, held at Confluence, Pa., C. W. Kutz, George Dumbauld and Jacob Kregar were appointed a committee to prospect a number of tracts of land by examining the present openings, drilling of coal, obtaining surveys, engineers’ reports, analyses of the coal, etc., on lands which the corporation intended to purchase; the lands included those of the decedent, C. W. Kutz. This committee expended $3,644.56. No detailed report of the doings of this committee was made until May 5, 1915, when the committee submitted a report showing what had been done, the names of the surveyors and engineers employed, the amount of money expended, etc. This report in two sections, is dated as follows: 5-5-15 as of 7-1-14.”</p> <p>On June 17, 1915, Henry D. Green wrote to C. W. Kutz stating that the Laurel Hill Lumber Company, a corporation in some way connected with the Laurel Hill Valley Coal & Coke Company, had executed mortgages and stock certificates for the latter company, which were placed in escrow, and Mr. Green with his letter enclosed deeds for Mr. Kutz and his wife to execute in accordance with the articles of agreement of January 30, 1911; and Mr. Kutz is advised in this letter that his deeds upon receipt will be placed with the other agreements and papers in escrow; and the letter proceeds: “In other words, when a purchaser is found and the money paid, it will be paid to the trust company for payment tO' the property owners according to the terms of the agreement, and no title will pass to purchasers nor will any deed be delivered except upon the conditions set forth in the agreement. In this way the rights of all parties will be perfectly safeguarded. I am preparing deeds to be signed by other landowners according to the terms of their agreements and I will ask you to assist me in having as much of this land put into shape for sale as possible.</p> <p>On the 30th of June, 1915, Mr. Green again wrote to Mr. Kutz stating that he Avas Avaiting for a reply to his letter of June 17th.</p> <p>On the 1st of July, 1915, Mr. Kutz acknowledges receipt of these letters and says: “Will say in reply that so far as your letter of recent date is concerned and what you ask me to sign I Avill not do as I consider all options void since July 1, 191U. Had you and others of your committee tried as hard to effect a sale as Dumbauld, Kregar and myself did to get surveys made and prospecting done, Ave might not now be a company .Avithout property to dispose of......I will not sell any óf my lands for a Avorthless mortgage.”</p> <p>No further steps were taken during the lifetime of Mr. Kutz, who died May 16, 1916, and his daughter, Mrs. Barron, was appointed his administratrix. The agreements between Mr. Kutz and Mr. Green purport to have been signed by C. W. Kutz and Susannah C. Kutz his wife, and in that form were handed to Mr. Green by Mr. Kutz. D. H. Schweyer signed as an attesting witness to Mrs. Kutz. The agreements were not acknowledged before a magistrate, but after the death of Mr. Kutz, Mr. Green acknowledged his signature to the articles of agreement and had same placed upon record in Somerset County.</p> <p>On the 15th of January, 1917, the administrator of C. W. Kutz presented a petition for an order for the sale of real estate for the payment of debts. The petition sets forth that the debts of the decedent amount to over $55,-000 and the personal property less than $1,300, and asks for the sale of the real estate including the lands and minerals described in the agreement between Mr. Kutz and Mr. Green. An order of sale was granted on the 16th of February, 1917. The real estate described in the order was sold to J. C. Barron, husband of the administratrix for $8,000. Mr. Green for himself and as attorney for the Laurel Hill Valley Coal & Coke Company, filed exceptions to the sale, and also presented the petition for specific performance of contract. There were gross irregularities in the conduct of the sale, and if a proper party in interest had filed exceptions they would doubtless have been sustained, but as we have concluded that neither Mr. Green nor the Laurel Hill Valley Coal & Coke Company has any interest in the estate, we need give the exceptions no further consideration.</p> <p>The rule for decree of specific performance of contract was served upon the administratrix, the widow, and each of the eight children of the decedent, being all the legal heirs and representatives concerned in the estate. They have all filed answers practically admitting the facts as set forth in the petition, but denying the petitioners’ right to specific performance, alleging specifically the resolution of the Laurel Hill Valley Coal & Coke Company fixing the maturity of the mortgage as in 1914, and averring laches on the part of the petitioner; and also denying authority on part of Mr. Green as a representative of the Laurel Hill Valley Coal & Coke Company to institute and conduct the litigation. The widow, Susannah C. Kutz, filed an answer of similar import, but also in a manner denying her signature to the articles of agreement. This denial in her answer is in the following form: “......I think it is his genuine signature, but there appears upon said agreements with the name of Cyrenius W. Kutz, the name of Susannah C. Kutz. I was the wife of Cyrenius W. Kutz at the date said agreements purport to have been signed by him. My name does not appear on said agreements. The name of the widow of Cyrenius W. Kutz is Susan C. Kutz, and I, the widow of said decedent, have at no time written my name Susannah C. Kutz, and I have no recollection of signing-said agreements and I do not recognize the signature purporting to have been signed by Susannah C. Kutz as having been written by me, though there is some resemblance in those signatures with my own genuine signature.” The name of Daniel H. Schweyer appears on the agreements as an attesting witness to the signature of Mrs. Kutz; and depositions have been taken to prove the death of Daniel H. Schweyer, and that the signature on the agreement is the genuine signature of Mr. Schweyer; and the agreements in that form, with the name of Mrs. Kutz appearing thereon after the name of C. W. Kutz, were handed to Mr. Green by Mr. Kutz. Mr. Kutz was a very reputable citizen, and therefore for the purposes of this case, we find as a fact that the signature on the agreements is the genuine signature of Mrs. Kutz.</p> <p>Beginning with September 8, 1913, Mr. Kutz contracted indebtedness amounting to $22,472.82, and this indebtedness was subsequently increased until the amount with interest totaled $36,372.64 as of January 1, 1917. For this indebtedness Mr. Kutz executed a mortgage on his real estate including that in controversy here, to his son-in-law, J. C. Barron for himself and as trustee for the other creditors. The assets of the Laurel Hill Valley Coal & Coke Company were all expended in prospecting on lands of Mr. Kutz and others, spoken of as the pool, for the purposes of ascertaining the extent and quality of the coal and minerals thereon. The certificates of stock of the Laurel Hill Valley Coal & Coke Company for Mr. Kutz, as referred to in the optional agreements, were, never tendered to Mr. Kutz, in fact were never executed by the corporation. No- formal action has been taken by the corporation authorizing Mr. Green to prosecute these proceedings. In fact a number of the stockholders were called as witnesses and by their testimony indicated their hostility to this proceeding. There is no prospect for an immediate sale of the coal by the Laurel Hill Valley Coal & Coke Company were it to become the owner of the premises. Under these circumstances we are decidedly of the opinion that the relief sought for should not be granted. Were the parties reversed and the estate of Mr. Kutz seeking to enforce the contract there would be little prospect of success.</p> <p>The agreement with the attending circumstances therefore lacks mutuality, which is fatal to the petitioners’ case: Meason v. Kane, 63 Pa. 335.</p> <p>The vendee has slept too long on its rights, and under all the facts of the case has been guilty of laches.</p> <p>“In a suit for specific performance, the plaintiff must show he has performed, or was ready to perform his part of the contract, and that he has not been guilty of laches or unreasonable delay, and where the proof leaves the case doubtful, the plaintiff is not entitled to a decree”: Bouvier’s Law Dictionary, page 3106; DuBois v. Baum, 46 Pa. 537; Nickerson v. Nickerson, 127 U. S. 668 (L. Ed. 314); Wesley v. Eells, 177 U. S. 370 (L. Ed. 810).</p> <p>Tender of performance on part of the petitioner is a prerequisite to a decree of specific performance of contract : DuBois v. Baum, supra.</p> <p>“When a man has an option upon property, and has laid by for several years without exercising it, and it has greatly enhanced in value, if he claim a conveyance of it, he should at least show a tender of the purchase-money, or that his appointee has the means to pay for it”: Kellow v. Jory, 141 Pa. 144.</p> <p>“It is well settled that to entitle a plaintiff in ejectment —founded on an equity only — to recover, he must not only tender the money before suit brought, but he must show his readiness to perform by having it in court ready to be paid in the event of a verdict in his favor” : Dwyer v. Wright, 162 Pa. 405.</p> <p>Furthermore, the granting of relief by a chancellor is a matter of grace and not of right. True, the court must exercise a legal discretion, not rule the matter arbitrarily, but be governed entirely by equitable principles: Burk’s App., 75 Pa. 141; Rigg et al. v. The Reading & S. W. Street Ry. Co,, 191 Pa. 298; Federal Oil Co. v. Western Oil Co., 121 Fed. Rep. 674; Nickerson v. Nickerson, supra; Wesley v. Fells, supra.</p> <p>In this case the article of agreement provided for the securing of the purchase-money by a mortgage on the property to the vendor, and as is shown by the agreement and the subsequent correspondence, it was the purpose and intention of the parties at the time to sell the property, not to operate it, and it was expected that the mortgage should be paid out of the proceeds of such sales. The agreement itself is silent as to the time of the delivery of deed and security by mortgage, therefore the law would fix a reasonable time, in the absence of any proof; but the parties themselves seem to have considered that three years was a reasonable time ;. in fact, the agreement provides that the mortgage is to be made payable in three years from its date, and it is fair to presume that the parties contemplated an early issuing of the stock and exchange of papers. The charter was promptly obtained; then the action of the corporation fixing the first of July, 1914, as the time for the limitation of the mortgages, is in harmony with what appears to have been the understanding at the time the papers were executed. Within that time no demand was made of Mr. Kutz, and when a demand was made upon him a year later he promptly took advantage of the resolution passed by the stockholders of the petitioning corporation. From the light that we have now, were we to grant a decree of specific performance, it would simply mean that a deed should be executed to the Laurel Hill Valley Coal & Coke Company and a mortgage given by that company for the bulk of the purchase-money with no immediate prospect of a sale of the land in view, and with a strong probability that resort would have to be had to legal proceedings to enforce the payment of the mortgage, and probably result in a sheriff’s sale of the property, thus entailing great expense, long delay and unnecessary trouble.</p> <p>The court refused the relief prayed for. The Laurel Hill Valley Coal & Coke Company and Henry D. Green appealed.</p> <p>Errors assigned were as follows:</p> <p>1. The court erred in not decreeing the specific performance prayed for by the petitioner.</p> <p>2. The court erred in admitting a great deal of testimony entirely immaterial and irrelevant to the questions involved.</p>

<p>Principal and surety — Assignment of debt — Transfer of collateral security — Default—Sale of collateral — Application of proceeds to unsecured debt — Value of stock — Evidence—Discharge of surety.</p> <p>1. A purchase of a debt is a purchase of all securities for it, whether named or not named at the time of the assignment, unless expressly agreed at the time that they shall not pass.</p> <p>2. A surety is entitled to every remedy which the creditor has against the principal, to enforce every security and all means of payment, and to stand in the place of the creditor, not only through the medium of the security pledged but even of securities taken without his knowledge.</p> <p>3. If a creditor releases the principal from the payment of the debt, he thereby releases the surety entirely, but if he releases the principal from a part only, the surety is released only pro tanto.</p> <p>4. While ordinarily the price obtained for an article in the open market is the best evidence of its value, where a creditor sells a pledged security on default of the debtor and buys it at its own sale and improperly applies the proceeds to a debt other than the one secured, such appropriation easts sufficient discredit upon the bona tides of the sale to warrant a finding that the real value of the security was greater than the price obtained.</p> <p>5. Where collateral pledged as security for a note upon which there is a surety is applied by the holder of the note to the payment of another obligation of the maker, without the consent of the surety, the surety is relieved from liability on the note pro tanto.</p> <p>6. Where in such case the value of the collateral was sufficient to discharge the note and such collateral was sold and the proceeds applied to the payment of another obligation of the maker of the note, the debtor could not thereafter successfully claim any part of the proceeds of a sheriff’s sale of the real estate of the surety, although his judgment was prior to that of other creditors.</p>

<p>Appeal, No. 103, Oct. T., 1917, by George W. Thompson, Committee of Nelson Young and Frances Thompson Young, from decree of C, P, Allegheny Co., July T., 1915, No: 2316, refusing to set aside decree of adoption in case of In re Adoption of Helen Frances Young.</p> <p>Petition to set aside decree of adoption. Before Shaper, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court refused to set aside the decree. George W. Thompson, Committee of Nelson Young and Frances Thompson Young appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 104, Oct. T., 1917, by defendants, from judgment of O. P, Allegheny Co., April T., 1917, No. 1090, dismissing exceptions to decision of the Workmen’s Compensation Board, in case of Mary Dzikowska v. Superior Steel Company and Ætna Life Insurance Company.</p> <p>Exceptions to award of Workmen’s Compensation Board. Before Evans, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions. Defendants appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 138, Oct. T., 1917, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1915, No. 435, on verdict for plaintiff in case of W. L. Kann v. M. M. Kann.</p> <p>Assumpsit on account stated. Before Carpenter, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff generally for $1,845.95 with special findings that the $4,000 payment was properly applied on interest and the $1,000 payment should be applied on principal. Plaintiff appealed.</p> <p>Errors assigned were rulings on evidence, answers to points, and the charge of the court.</p>

<p>Criminal law — Statute of limitations — Misdemeanors—Flight— Return — Concealment within State — Act of March 81, 1860, P. L. 427-450, Sec. 77 — “Usual resident” — Words and phrases — Tolling of statute — Seduction—Promise to man-y — Evidence—Sufficiency —Charge—Case for jury.</p> <p>1. One who is charged with a crime committed in a rural district and floes from arrest to another state but subsequently takes up his residence in a large city within the State and lives under his proper name, may be denied protection of the statute of limitations by disavowing his identity at times for the purpose of evading arrest.</p> <p>2. The words “usual residence” within the meaning of the Act of March 31, 1860, P. L. 427-450, Section 77, requiring that all indictments for misdemeanors shall be brought within two years, provided “that if the person against whom the indictment shall be brought or exhibited, shall not have been an inhabitant of this State, or usual resident therein, during the said respective terms for which he shall be subject and liable to prosecution......such indictment shall and may be brought......against such person at any time within a similar space of time during which he shall be an inhabitant of or, usually resident within the State,” do not refer only to defendant’s place of residence but also to his manner of residence; “usual” when used in this sense means “customary” or “common”; to be a “usual resident” one must conduct himself in accordance with his customary mode óf life.</p> <p>3. One might commit an offense and move to another part of the State in an open manner, or even go from the State, if in military service, and not be barred from claiming the benefit of the statute of limitations, but this is not so where the offender flees from justice and subsequently by fraud and concealment, succeeds in avoiding arrest.</p> <p>4. Where a person indicted in 1916 for the crime of seduction committed in 1910, pleaded the statute of limitation, it appeared that defendant left the State on learning that a warrant had been issued for his arrest; that no accurate account of his whereabouts thereafter appeared until 1913, when he took up his residence in Pittsburgh where he continued to reside until arrested; that since 1913 he worked at his trade as carpenter in different parts of that city, used his proper name there and received mail from the general delivery and' at his various boarding houses, and paid taxes and voted in the district where he resided; that while a resident of Pittsburgh he frequently visited the rural district in which the crime was committed but on such occasions he denied his identity and used an assumed name, and that when arrested he denied his identity. Held, there was sufficient evidence to warrant a finding that defendant was not a “usual resident” of the State and that the statute of limitations should therefore be tolled, and the case was for the jury and a conviction in such case will be sustained.</p> <p>5. If defendant had moved openly to Pittsburgh immediately after the commission of the crime for the bona fide purpose of taking up his residence there, he would have been a “usual resident” within the meaning of the statute.</p> <p>6. Circumstantial evidence of an engagement of marriage is to be found in the proof of such facts as usually accompany that relation; among them may be mentioned letters, presents, social attentions of various kinds, visiting together in company, preparations for housekeeping, and the like.</p> <p>7. In a prosecution for seduction, evidence that defendant had been paying constant attention to prosecutrix for practically one year, that they became engaged to be married about three months after they first met, at which time he gave her a ring; that defendant called on her at least once a week for several months, accompanied her in public, and on one occasion repaired the engagement ring, sufficiently corroborated statement of prosecutrix that defendant promised to marry her.</p>

<p>Appeal, No. 147, Oct. T., 1917, by defendants, from judgment of Superior Court, April T., 1917, No. 195, reversing decree of C. P. Allegheny Co., Oct. T., 1916, No. 1733, dismissing bill in equity for injunction in case of John Dewar v. W. B. Carson, Pittsburgh Railways Company, The Federal Street & Pleasant Valley Passenger Railway Company, and George R. Bothwell and John Carson, Partners, trading as Bothwell & Carson.</p> <p>Appeal from the Superior Court. Before Orlady, P. J.</p> <p>The facts appear by the opinion of the Supreme Court and in 67 Pa. Superior Ct. 527.</p> <p>The Superior Court reversed the decree of the lower court dismissing the bill. Defendants appealed.</p> <p>Error assigned, among others, was the decree of the Superior Court.</p>