Volume 261 — Pennsylvania State Reports

<p>Negligence — Steamboats—Fogs—Collisions — Passengers— Case for jury.</p> <p>1. Unusual caution is required of those in charge of vessels passing through a fog.</p> <p>2. In añ action against a steamboat company for personal injuries sustained by plaintiff in consequence of a collision between a ferry boat and defendant’s steamboat upon which the plaintiff was a passenger, the case was for the jury where it appeared that the collision occurred in a dense fog and there was evidence that the captain of defendant’s steamboat failed to observe the regulations established by the government for boats in passing, as a result of which the accident occurred.</p> <p>Negligence — Damages—Evidence—Measure of damages — Present value — Expectancy.</p> <p>3. In an action for personal injuries, the admission of evidence as to the present value of money for different periods of expectancy-based upon total disability was not error where there was evidence of plaintiff’s earning power before she was injured, and that ¡she was totally disabled by the injuries which she sustained.</p> <p>4. In such case, the trial judge properly charged the jury, “If, however, you do not believe that she is totally incapacitated for work, but find as a fact, as one physician tells you, that she is now able to do light work, then you will consider compensation to her, instead of contemplating total loss of earning power, simply a diminution or lessening of earning power.”</p>

<p>Appeal, No. 263, Jan. T., 1917, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1915, No. 3876, on verdict for plaintiff, in case of Rebecca Twersky'v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $2,800 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v.</p>

<p>Appeal, No. 116, Jan. T., 1917, by defendants, from decree of C. P. Schuylkill Co., Nov. T., 1916, No. 1, awarding an injunction, in case of Hugh Dolan, for himself, and for such other taxpayers as may become parties, v. Jacob B. Schoen, Hiram S. Davies, J. Oren Bearstler, George W. Jungkurth, Councilmen; F. Pierce Mortimer, Mayor; Harry K. Portz, City Controller, and Frank W. Leib, Treasurer of the City of Pottsville; C. Messersmith, A. C. Hasler, Jacob F. Speacht, George M. Knoll, Charles O. Faust and H. W. Lord.</p> <p>Bill in equity for injunction. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing awarded the injunction. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of fact and law and the decree of the court.</p>

<p>Appeal, No. 329, Jan. T., 1917, by plaintiff, from judgment of C. P. Schuylkill Co., Nov. T., 1915, No. 276, entered for defendant non obstante veredicto in case of Harriet Caddy v. Harleigh-Brookwood Coal Company.</p> <p>Trespass for death of plaintiff’s husband. Before Moser, J.</p> <p>From the record it appeared that on June 1,1915, the time of the death of plaintiff’s husband, Arthur Caddy, he was employed in the mine of the defendant company. On that day he went into a tunnel with a fellow workman, named Timmons, in search of pipe. They found a piece of pipe about twelve feet long in the tunnel but, as it was not fit for use, they did not take it. Caddy examined the pipe from one end, while the other end was on the bottom of the tunnel. There was no evidence that Caddy lifted the pipe from the bottom of the tunnel, or that he touched the exposed electric wire in the tunnel with the pipe, or that there was any noise or flash indicating contact with the wire, or that there was any evidence of contact on the pipe or on the wires, or that there was any burn or any other mark from electricity on deceased’s body or on his clothing. Before he fell, deceased called out to Timmons to know where he was. Deceased was then seen to stumble from the middle of the track in the tunnel and on toward a gangway, with outstretched hands, and fall into a ditch. At the time he called for Timmons he had nothing in his hands, nor had he anything in his hands as he stumbled on toward the gangway. Caddy was lifted from the ditch and was carried to the bottom of the slope, where efforts were made to revive him, but without avail. In a short while the body was taken to the top of the slope where it was promptly examined by a doctor. He found nothing in or on the body or clothing indicating burns from electricity. The body was then conveyed to deceased’s home, where two of his fellow workmen removed the clothing from the body, washed it and turned it over to the undertaker who embalmed it and otherwise prepared it for burial. These men did not find anything on the clothing or body showing the presence of electricity. A small nickel watch was found in the upper left pocket of decedent’s vest and this was given to the widow who put it away in a cupboard drawer. The deputy coroner, a physician, called the next day, after the body had been embalmed, and as such officer made a cursory examination of it. There was no post mortem. He testified that Caddy suffered from incurable heart disease, mitral regurgitation, and that he had treated him for this. Almost a year and a half after Caddy’s death, and nearly a year after bringing suit, plaintiff discovered through a jeweler that the watch was magnetized or electrified. At the time of his death Caddy wore two shirts and a vest and in the upper left pocket of the vest he carried a nickel open faced watch. When this watch was taken from his clothing it was running, and there was a dark spot, on the back of it which Mrs. Caddy testified was not there when her husband went to work that morning. There was evidence that the watch remained in a drawer untouched from Caddy’s death until the date of its examination by the jeweler.</p> <p>Action was brought upon the theory that the electricity alleged to be found in the watch came from the exposed wires, that the pipe carried the current upon contact, and that the current entered Caddy’s body and killed him.</p> <p>Verdict for plaintiff for $3,695.80.</p> <p>Subsequently the lower court entered judgment for • defendant non obstante veredicto. Plaintiff, appealed.</p> <p>Error assigned, among others, was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 357, Jan. T., 1917, by plaintiffs, from order of C. P. Lackawanna Co., May T., 1917, No. 82, discharging rule for judgment for want of a sufficient affidavit of defense in case of J. C. Bell, W. B. Schaeffer, O. F. Reinhard, Henry W. Dunning and S. B. Earns, a committee for the protection of the bondholders of the Rohr McHenry Distilling Company, to the use of all bondholders entitled, v. The Scranton Trust Co.</p> <p>Assumpsit against trustee for failure to enforce the covenants of a corporation mortgage. ■ Before New-comb, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered an order dismissing plaintiffs’ rule for judgment for want of a sufficient affidavit of defense. Plaintiffs appealed.</p> <p>Error assigned, among others, was in dismissing the rule for judgment.</p>

<p>Appeal, No. 12, Jan. T., 1918, by defendant, from judgment of C. P. Lackawgmna Co., June T., 1917, No. 265, dismissing appeal from Workmen’s Compensation'Board in case of Louise Siglin, Gertrude Siglin, John Siglin, Francis Siglin and Elizabeth Siglin v. Armour & Company.</p> <p>Appeal from award of compensation by Workmen’s Compensation Board.</p> <p>The facts appear from the following opinion by New-comb, J.:</p> <p>The referee awarded compensation to tbe widow and children of one Harry Siglin, who came to bis death by accident while in defendant’s employ. Tbe award was affirmed by tbe Board of Compensation and from that decision defendant takes this appeal. Deceased was fatally hurt by a fall from bis employer’s motor truck, on its return from an out-of-town delivery of goods, in . charge of a driver to whom deceased was a helper. He was standing on tbe running board, or at least with one foot on tbe board, and was thrown off- by a jolt occasioned by an obstruction in tbe road. Tbe driver and two girls on tbe seat were not disturbed by tbe jolt. Deceased bad voluntarily given up bis seat and taken to tbe running board, in order to give tbe girls a ride when they were overtaken on tbe road. That circumstance gives rise to tbe question raised by appellant, viz: whether deceased was at that particular time in tbe course of bis employment, to which some color is lent by tbe fact that of bis own volition be bad stopped tbe car, given up what proved to be a place of safety and taken one obviously of less safety, not in furtherance of tbe master’s business but to help tbe girls on tbe way home from their work.</p> <p>Appellant takes tbe negative and its contention is supported by a very able argument; but tbe impression remains that it only convicts deceased' of contributory negligence which can avail nothing in cases of this kind. • Had be suffered an injury while on tbe ground for the purpose of taking on tbe passengers, a different question would be presented. But having resumed bis- appointed journey, he was no doubt in course of bis employment thereafter, no matter in what part of the truck he placed himself. The finding of the referee having been affirmed by the board, the burden must be deemed to be on the appellant to clearly establish the alleged error, and of that we are not c.onvinced.</p> <p>The lower court dismissed the appeal from the Workmen’s Compensation Board. Defendant appealed.</p> <p>Error assigned, among others, was in dismissing the appeal from the Workmen’s Compensation Board.</p>

<p>Appeal, No. 34, Jan. T., 1918, by defendant, from judgment of C. P. Lackawanna Co., June T., 1915, No. 532, on verdict for plaintiffs in case of Robert Nevins and Anna Nevins v. The Delaware and Hudson Company.</p> <p>Trespass for the death of plaintiffs’ son. Before Maxwell, P. J., specially presiding.</p> <p>From the record it appeared that on the afternoon of December 23, 1914, Joseph Nevins, the deceased, and several companions were coasting upon a public road upon a bobsled. They had gone down three times and were going up the hill from their third trip when they passed John Coleman, defendant’s mule driver, coming down the road on his way to the mule barn, riding one mule and leading another by a rope or chain. The boys reached the top of the hill and after waiting three or four minutes for the mules to get out of their way started down the hill again on their fourth trip. After they had gotten part way down they discovered the mules still in the public road. They then called to Coleman who pulled the mules into the opposite gutter so that as the sled passed them the mules were standing diagonally across the road close to the gutter. The hind mule, the one that was being led, was approximately four or four ánd a half feet from them. As they passed this mule he kicked with his hind feet or foot and struck two of the boys in the head, slightly injuring one and crushing the skull of Joseph Nevins. From the effects of the injury he died on January 3,1915.</p> <p>It appeared that Thomas McGowan, an eighteen-year-old boy, was riding in front of the bobsled and was steering at the time of the accident, and that Joseph Nevins was the fourth on the sled as they came down the hill.</p> <p>There was evidence that the mule which kicked the deceased was of a vicious and bad disposition; that it had been owned by defendant company for some four or five years prior to the accident; and that the defendant company, through its mine bosses or assistant mine bosses or driver, had actual knowledge of the vicious tendencies of the mule as to its kicking and biting. There was proof that the mule had kicked other persons on numerous occasions.</p> <p>Verdict for plaintiffs for $5,013 which was subsequently reduced by the court to $2,864.79, representing the estimated probable earnings of the deceased during his minority, less the cost of maintenance and education. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Principal and, agent — Gratuitous agent — Bale of real estate— Judgment on mortgage — Failure to inform purchaser of judgment —Alleged neglect of duty — Judgment for defendant n. o. v.</p> <p>Plaintiff purchased a saloon property and business and as part consideration therefor assumed payment of indebtedness of the seller to the defendant which was secured by mortgages oh the property. In order to safeguard its interests defendant assisted in arranging for the conveyance of the real estate and in procuring a transfer of the license. Three years thereafter the property was sold on a levari facias issued upon a judgment on the first mortgage which judgment defendant had secured prior to the purchase. Thereafter plaintiff brought an action of trespass against the defendant complaining that he had failed to inform him that the first mortgage had been reduced to judgment at the time of the purchase. There was no evidence that defendant undertook to examine the title to the premises for the plaintiff or to insure him against encumbrances. At the time of the settlement plaintiff’s attorney was present and had in his possession a report showing that the first mortgage had been reduced to judgment. The lien on. the first .mortgage was no greater in amount after judgment had been entered upon the scire facias than before, alb costs and overdue interest having been paid upon the judgment. The jury found a verdict for the plaintiff upon which judgment was entered. Held, judgment should have been entered for the defendant non obstante veredicto.</p>

<p>Appeal, No. 185, Oct. T., 1917, by defendants, from decree of C. P. Allegheny Co., July T., 1917, No. 101, awarding injunction in case of Herbert Dupuy v. David B. Johns, Simon A. Merkle and John C. Kaiser, constituting the Board for the Assessment and Revision of Taxes in the County of Allegheny; E. D. Friebertshauser, Treasurer of said County of Allegheny, and Frank J. Harris, A. C. Gumbert and Gilbert Myer, Commissioners of Allegheny County.</p> <p>Bill in equity for an injunction. Before Brown, J.</p> <p>The opinion of the Supreme Court states the facts. •</p> <p>The court on hearing on bill and answer awarded an injunction. Défendants appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of fact and conclusions of law and decree of the court.</p>

<p>Decedents’ estates — Collateral inheritance tax — Beal estate — Appraisement — Practice, Supreme Court — Appeals—Findings of fact —Acts of May G, 1887, P. L. 79, and April 22, 1905, P. L. 258.</p> <p>1. Under the collateral inheritance tax Acts of April 22, 1905, P. L. 258, and May 6, 1887, P. L. 79, the appraiser in determining the</p> <p>clear value of the real estate is not necessarily restricted to a consideration of what the properties would bring at public sale after due notice, but may take into consideration the price which the property would bring at private sale and other evidence tending to legitimately affect the value of the land.</p> <p>2. Findings of fact by the Orphans’ Court upon an appeal from a collateral inheritance tax appraisement, based upon evidence, will not be disturbed by the Supreme Court in the absence of clear error.</p>

<p>Appeal, No. 349, Jan. T., 1918, by Commonwealth of Pennsylvania, from decree of O. C. Delaware Co., on appeal from collateral inheritance tax appraisement in Estate of Margaretta Smith, Deceased.'</p> <p>Appeal from collateral inheritance tax appraisement. Before Broomall, J. ’ ’■ ‘</p> <p>The opinion of the Supreme Court'states the facts.</p> <p>. The court reduced the appraisement of the estate from $75,969.48 to $52,750. The Commonwealth of Pennsylvania appealed. ' ■'' ” -</p> <p>Error assigned was the decree of the court.'</p>

<p>Constitutional law — Constitution of Pennsylvania, Article IV, Section 8 — Public officers — Banking commissioner• — ■Nomination by governor — Rejection by senate — Appointment by governor after adjournment of senate — Validity — Constitutional construction — Refusal of auditor general to pay salary — Mandamus — Parties plaintiff — Act of June 8, 1893, P. L. 315 — Action at relation of banking commissioner — Practice, C. P.</p> <p>1. Under tbe Act of June 8, 1893, P. L; 345, Section 4, providing, inter alia, that when a mandamus proceeding “is sought to enforce a duty affecting a particular public interest of the State, it shall be on the relation, of the officer entrusted with the management of such interest,” such a proceeding is properly brought in the name of the Commonwealth on the relation of a banking commissioner against the auditor general and State treasurer to compel the payment of the commissioner’s salary, which was refused on the ground that he had not been legally appointed by the governor. While the relator has also a private interest in his salary, yet the payment of his compensation, as well as the payment of other expenses of his office, is a necessary incident to the administration of the affairs of the department, and, being paid out of public funds, is a mattér of public concern and the duty of the officials having charge of such payment is a public duty.</p> <p>2. To the general rule that title to public office cannot be inquired into by mandamus proceedings there is an exception where there are no conflicting claimants to the office, but there is involved merely a question of right to salary, which in turn depends upon whether claimant properly holds office.</p> <p>3. A constitution is to be construed in the popular and ordinary sense of the language used, and in the light of the circumstances attending its formation, so as to give effect to the intent of the framers and of the people in adopting it, and also with a view to carry out, the general principles of government.</p> <p>4. In construing particular clauses of the Constitution, it is but reasonable to assume that in inserting such provisions the convention representing the people had before it similar provisions in earlier constitutions in this and other states, which it used as a guide; and that in adding to or subtracting from the language of such constitution, the change was made deliberately and was not merely accidental.</p> <p>5. A court lias no right to instruct the governor as to matters which involve his duty only and not his power.</p> <p>6. There is a presumption that a public official will not abuse his trust or act with a view to evading the duties of his office.</p> <p>7. Where the senate has rejected the nomination by the governor to an office subject to his appointment, the governor may, under authority of Article IV, Section 8, of the Constitution, after the adjournment of the senate, appoint the rejected nominee until the end of the next session of the senate; but the governor cannot make an appointment of such person for a full or unexpired term without the advice and consent of two-thirds of all the members of the senate.</p> <p>. Practice, Supreme Court — Statement of questions involved — Absence of assignment of error covering question.</p> <p>8. A question not raised in the assignments of error will not be considered by the Supreme Court although it appears in the statement of the questions involved.</p> <p>Mr. Chief Justice Brown, Mr. Justice Potter and Mr. Justice Mosohzisker dissent.</p>

<p>Contracts — Sales — Refusing to perform — Cancellation of contract — Construction—Intention.</p> <p>In an action for the breach of an executory contract for the sale-of 300 tons of potash to be delivered f. o. b. cars shipper’s works, in carload lots of not less than fifteen tons as ordered by buyers, brought by the buyer against the seller, it was provided “Buyers to give the seller reasonable notice of all shipments wanted. Final shipments under this contract to be completed by May 30, 1915, and any balance unshipped on the latter date through failure of buyers to furnish' instructions, may, at the option of the sellers, be either shipped on this contract or cancelled.” By supplemental contract dated May 21,1915, the time for the delivery of the potash was “extended until and completed by July 1, 1915, instead of May 30, 1915, as given in the original contract.” It appeared that one month after the contract was made, defendant shipped to plaintiff fifteen tons of potash, that plaintiff never ordered further shipment until June 30th following and none was meanwhile shipped. On June 30th, plaintiff advised defendant that it had assigned the contract to a third party. The representative of the assignee delivered notice of the assignment to defendant on the morning of June 30th; and at four o’clock in the afternoon, the assignee and plaintiff made demand on defendant for the balance of the potash which was refused. It appeared from all the evidence that there was not left sufficient time between four o’clock and twelve o’clock midnight in which to make delivery of all the potash f. o. b. cars, shipper’s works. The lower court subrditted the case to the jury which found a verdict for plaintiff upon which judgment was entered. Held, that as defendant did not have sufficient time to make delivery of the entire balance of tons called for by the contract, before its expiration, the defendant was justified in cancelling the contract and the plaintiff was not' entitled to recover, and judgment was reversed and entered for defendant.</p>

<p>Equity — Equity practice — Findings of fact — Appeals — Party walls — Acts of Fed. 21f, 1121,1 8m. L. 125, and May 5,1899, P. L. 198.</p> <p>1. Findings of fact of a lower court will not be reversed on appeal where they are based upon competent evidence, although there is sufficient evidence upon the record from which the lower court might have reached a different conclusion.</p> <p>2. In a suit in equity brought by an owner of a building to enjoin an adjacent property owner from using a party wall, constructed by the plaintiff, until it had paid the plaintiff the appraised value of its new use of the wall, and certain measuring charges, where defendant contended that an old wall which the parties had formerly used was not entirely removed, but was simply reconstructed, but where plaintiffs produced abundant evidence that the old wall had been taken down and a new one erected, a finding by the lower court in accordance with plaintiffs’ contentions was conclusive upon appeal, and a decree, under the Acts of Feb. 24, 1721, 1 Sm. L. 125, and May 5, 1899, P. L. 193, requiring defendants to pay half the cost of the new wall was affirmed.</p>

<p>Appeal, No. 13, Jan. T., 1918, by defendant, from judgment of C. P. Montgomery Co., Dec. T., 1916, No. 54, dismissing exceptions to findings of fact and conclusions of law, in case of Mary L. Rowan v. Commonwealth of Pennsylvania.</p> <p>Appeal from the award of jury of view in condemnation proceedings. Before Miller, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The case was tried by a judge without a jury who found in favor of the plaintiff for $6,500.</p> <p>Exceptions to the findings of the trial judge were dismissed and judgment was entered on the findings. The Commonwealth appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Negligence — Street railway companies — Contributory negligence —Conflicting statements — Case for fury.</p> <p>1. In an action for personal injuries, tbe plaintiff is not required to disprove contributory negligence, but only to make out a case clear of it.</p> <p>2. In an action for tbe death of plaintiff’s husband where from one part of plaintiff’s testimony it appeared that deceased was guilty of contributory negligence, but from another part it appeared that he was not, and there were no other witnesses of the accident, the case was for the jury.</p> <p>3. Where in an action against a street railway company to recover damages for the death of plaintiff’s husband who was killed by a trolley car while endeavoring to cross the highway at a crossing, plaintiff testifies that the accident occurred in the evening after dark; that she saw her husband as he approached the track; that he looked up and down the track and that she did the same, but neither could see a car approach; that both listened and heard nothing to warn anyone; that she was following her husband; and that when he had advanced over the nearest track, he was struck by a car running at great speed, the ease was for the jury and the fact that plaintiff also testified that she was within two feet of the car and her husband immediately in advance of her when he attempted to cross the track did not warrant the court in disposing of the case as a matter of law.</p>

<p>Contracts — Municipalities—Construction work — Extra work — Directions of city engineer — Arbitration and certificate clauses— Capricious decision by engineer — Case for jury.</p> <p>1. In an action against a municipality to recover for extra work done in connection with the construction of certain filter beds, the contract provided “wherever excavations are carried on beyond the lines and grades furnished by the engineer, the contractor shall, at his own expense, refill such places with concrete or other, material selected by the engineer. Wherever materials are encountered which are not suitable for supporting the structures, the excavation shall be carried to such additional depth as may be specified by the engineer. Excavation and concrete necessary for such additional depth will be paid for [by the city] at the prices bid [by the contractor] for excavation and concrete masonry.” Plaintiffs produced evidence to show that while the ground was being prepared for construction, defendant’s engineer determined that the rock material encountered was not suitable for supporting the structure and directed excavations to be carried to a suitable depth specified by him; that plaintiffs made the additional excavations to the extent claimed. Defendant contended and offered evidence to prove that when the engineer decided that materials encountered were not suitable for support, and ordered .additional excavations, these were allowed and paid for; and that the excavation for which claim was made was necessitated by the negligence of plaintiffs’ engineer in blasting out rock, and was not caused by encountering unsuitable material. The trial judge submitted the ease to the jury which found a verdict for plaintiffs upon which judgment was entered. Held, no error.</p> <p>2. In such case a provision that “the decision of the engineer shall be final and conclusive in all disputes which may arise between the parties to the agreement” and “the engineer shall in all cases determine the amount or quantity of the several kinds of work which are to be paid for and the compensation to be paid,” will not prevent the submission of the case to the jury, as the question of the conduct of the engineer was involved.</p> <p>3. Where in such case the contract stipulated that if quantities shall be increased from any cause which may enhance the expense of construction, “such increases shall be paid for at the rates herein provided”; and plaintiffs claimed for furnishing additional concrete for the construction of filter bed roofs, and alleged that defendant’s engineer compelled them to mix the concrete in a loose, liquid state rather than in a “stiff paste” as required by the contract, and that thereby a greater quantity of concrete became necessary, the case was for the jury; and defendant’s rights were sufficiently protected by instructions to the effect that the jury’s allowance on this account should be limited to occasions where the necessity for increasing the quantity of concrete arose purely from a change in the consistency thereof ordered by the defendant’s engineer; but that no allowance should be made where the use of additional material was traceable to any shortcomings or omissions on the part of the plaintiffs.</p>

<p>Appeals, Nos. 30 and 31, Jan. T., 1918, by George R. Gregory, and the Berks County Trust Co., defendants, from judgment of C. P. Berks Co., Jan. T., 1916, No. 57, on verdict for plaintiff, Colonial Trust Co., in case of Commonwealth of Pennsylvania, for the Use of Colonial Trust Company, of Reading, Pa., Ancillary Administrator d. b. n. c. t. a. of Joseph Middle-by, deceased, The Marshall Auto Company, -Nelson B. Bates, and Knapp-G-reenwood Company, Inc., v. George R. Gregory, and The Berks County Trust Company.</p> <p>Assumpsit on register of wills’ official bond. Before Wagner, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff, Colonial Trust Co., for $30,000 and judgment thereon. Defendants appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No. 372, Jan. T., 1917, by Farmers & Merchants Trust Company of Chamfcersburg, Garnishee, from judgment of C. P. Franklin Co., Oct. T., 1917, No. 224, entered against Garnishee under attachment execution in case of Mary A. Benedict v. J. L. Benedict, Defendant, and Farmers & Merchants Trust Company, of Chambersburg, Garnishee.</p> <p>Attachment execution. Before Gillan, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered judgment against the garnishee for $2,506.20 for want of sufficient answers to interrogatories. The Farmers & Merchants Trust Company of Chambersburg, Garnishee, appealed.</p> <p>Error assigned', among others, was in entering judgment against the garnishee.</p>

<p>Appeal, No. 182, Jan. T., 1917, by Morris W. Gowen, from decree of Orphans’ Court, Philadelphia County, Jan. T., 1881, No. 367, dismissing exceptions to'adjudication in Estate of Morris S. Wickersham, deceased.</p> <p>Exceptions to adjudication. Before Gummey, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions in an opinion l, Anderson, J. Morris W. Gowen appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 248, Jan. T., 1917, by defendant, from judgment of Superior Court, Oct. T., 1916, No. 328, affirming judgment of Q. S. Philadelphia County, Jan. Sess., 1916, No. 560, on verdict of guilty in case of Commonwealth of Pennsylvania v. H. Matthias Puder.</p> <p>Appeal from Superior Court. Opinion by Williams, J., 67 Pa. Superior Ct. 11.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The defendant was found guilty of violation of the Act of June 17, 1915, P. L. 1012, regulating the business of loaning money in sums of $300 or less, and sentenced to pay a fine of $100 and the costs of prosecution. The Superior Court affirmed the sentence of the Court of Quarter Sessions. Defendant appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 279, Jan. T., 1917, by plaintiff, from judgment of Superior Court, Oct. T., 1916, No. 310, affirming judgment of Municipal Court, Philadelphia County, May T., 1916, No. 268, for defendant in case tried without a jury, in case of William C. Wheeler v. Remedial Loan Company of Philadelphia.</p> <p>Appeal from Superior Court. See Commonwealth v. Puder, 261 Pa. 129.</p> <p>Plaintiff brought suit to recover a sum charged by defendant for the use of money in excess of six per cent., alleging that such charge was usurious. Defendant admitted payment by plaintiff as alleged, but averred that it was a licensed money lender under the Act of June 17, 1915, P. L. 1012; and that the amounts charged were proper under the said statute. The case was tried by a judge without a jury, who found in favor of defendant, upon which judgment was entered. Plaintiff appealed to' the Superior Court, averring that the said Act of 1915 was unconstitutional. The Superior Court affirmed the judgment of the Municipal Court. Plaintiff appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeal, No. 296, Jan. T.,.1917, by Charles T. Maxwell, from decree of Superior Court, Oct. T., 1916, No. 281, affirming decrees of O. C. Philadelphia Co., July T., 1908, No, 254, and Oct. T., 1909, No. 368, dismissing exceptions to adjudication, in Estates of John Maxwell and Elizabeth Maxwell, Deceased.</p> <p>Appeal from Superior Court. Opinion by Head, J., 67 Pa. Superior Ct. 63.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Orphans’ Court, in an opinion by Lamorelle, J., dismissed exceptions to the adjudication of Gest, J. The Superior Court affirmed the decree. Charles T. Maxwell appealed.</p> <p>Errors assigned were in dismissing exceptions.</p>

<p>Negligence — Railroads—Master and servant — Hea,d-on collision —Injuries to conductor — Alleged failure to warn of approaching train — Conflicting evidence — Case for jury — Erroneous charge— New trial.</p> <p>1. " Where in an action to recover damages for personal injuries sustained by conductor on a railroad train as a result of a collision between the train of which he was in charge and a train on the same track which was approaching from the opposite direction, it appeared that plaintiff’s train consisted of an engine and a combination baggage and passenger coach which was ahead of the engine, añd two witnesses testified without objection that for a period of two years that particular train had sometimes run with the engine ahead and at other times behind, pushing the passenger coach, a third witness was properly permitted to testify to substantially the same facts, as such evidence tended to prove that the plaintiff was free from contributory negligence in making up his train with the passenger coach ahead of the engine.</p> <p>2. Where in such case there was evidence on behalf of the defendant that a clerk in the office of defendant, at the station from which plaintiff’s train started, had notified plaintiff verbally to hold his train until the freight train which subsequently collided with him had arrived, and plaintiff denied having received the order, and testified that such clerk told him he' could go “as soon as (the conductor of another freight train) was out of the road” and after such train had left plaintiff started without knowing that the freight train which collided with him was on the track ahead of him, and the collision resulted, a point for charge presenting as an important and controlling issue of fact in the case, the question whether defendant’s clerk directed plaintiff to hold his passenger train until the freight train which collided with him had arrived, should have been unqualifiedly affirmed, and the refusal to affirm such point was reversible error.</p> <p>3. In such case, the trial judge erred in charging the jury that they must find whether the order alleged to have been given by the defendant’s clerk to the plaintiff was given in a proper manner, as the jury might have found under the charge that the order should have been given in writing, and that defendant was negligent in having given it verbally; and the trial judge further erred in'permitting the jury to infer that the defendant had been negligent in not having informed plaintiff that if he disobeyed the order he might be in peril of a collision, as the defendant was not required to inform plaintiff of so obvious a fact.</p>

<p>Receivers — Bad faith — Improper payments — Surcharge — Services — Compensation—Exceptions to account — Burden of proof— Continuation of husiness — Expenses—Preferred claims — Liens.</p> <p>1. Funds allowed the receiver of an insolvent corporation for necessary improvements and current expenses cannot be diverted by him to the payment of certain unsecured creditors of the corporation, thus giving 'them an unlawful preference, whether it be done directly or indirectly. .Knowingly or negligently paying a fictitious value for property will result in a surcharge of the receiver; and such charge is not relieved because the excess is applied to a preexisting indebtedness which the receiver had no authority to pay.</p> <p>2. Where a receiver of a street railway company paid $15,000 ostensibly for two ear bodies which were turned over to the road by the bondholders’ committee who had previously been in charge thereof, and it appeared that the car bodies were not worth the price paid therefor, and the payment was in reality made not only for the car bodies, but also to cover a balance due the committee for money expended on the road, the court properly surcharged the receiver with the difference between the value of the ear bodies and the amount paid for them.</p> <p>3. Where a receiver paid a State tax which had been assessed against the corporation prior to his appointment and prior to the Act of June 15, 1911, P. L. 955, dispensing with the necessity of filing a lien for taxes against the property of a corporation in order to create a lien therefor, and it appeared that the assessment of taxes had not been filed of record, the court properly surcharged the receiver with the amount of such payment where the funds were not sufficient to pay unsecured creditors in full.</p> <p>4. Where it appeared that, prior to the receiver’s appointment, a contract had been made with another traction company for the extension to its lines of defendant’s road, but before the extension was made defendant went into the hands of a receiver, and thereafter the written agreement expired and the receiver obtained leave of court and made the extension, which was of some value to the company, and which passed to the purchaser of the road at the receiver’s sale, the court properly refused to surcharge the receiver with the amount expended for making such connection.</p> <p>5. Where specified exceptions are filed to certain credits claimed in the account of-a receiver or other trustee, the burden is cast upon him of supporting the same by proof and where he fails to do so the exceptions will be sustained.</p> <p>6. Where .a receiver issued certain receiver’s certificates of the face value of $30,000 which he was authorized by the court to sell at not less than 90 per cent, of the par value, and employed an agent who sold such certificates at 94 per cent, and kept 4 per cent, as a commission and turned the balance over to the receiver, the court properly refused to surcharge the receiver with the amount of such commission, where it appeared that the receiver acted in good faith and without knowledge of what his agent received for the certificates.</p> <p>I. Where a receivership extends over a term of years, a single act of misfeasance, by which the receiver profits nothing, will not necessarily deprive the receiver of all compensation. The allowance to a receiver for services is largely a matter for the court, whose officer he is, to determine and with which an appellate court will only interfere to correct an abuse of discretion and such a finding- will not be reversed by an appellate court unless error clearly appears.</p> <p>8. Where it appeared that the receivership lasted four years and the auditor allowed the receiver $5,000 for his services which was increased by the court to $8,000, the contention that the receiver should not be allowed any compensation because of his connivance with the bondholders’ committee in paying more than the fair value of the car bodies was without merit on appeal, especially where it appeared that the receiver had made no profit personally and where there was nothing else to show that the lower court had abused its discretion in fixing the receiver’s compensation.</p> <p>9. The general rule is that the- court, which appoints a receiver for a public service corporation, may allow for operating expenses and necessary improvements out of the corpus of the estate and as preferred claims, even against mortgage lien Creditors, although this power is to be exercised sparingly and with great caution.</p> <p>10. Where a court directed its receiver to continue a trolley road as a going concern, and the receivership lasted four years and the road was subsequently sold at receiver’s sale divested of liens, expenses incurred in connection with the running thereof, in addition to the receiver’s certificates issued under the direction of the court, were properly allowed as a preferred claim against the fund.</p> <p>11. Where a receiver kept honest, although not expert, accounts, and his surcharge exceeded his commissions, the lower court properly decided that the costs should be paid out of the fund.</p>

<p>Appeal, No. 184, Oct. T., 1917, by James B. Secrist, Receiver, from decree of C. P., Allegheny Co., Jan. T., 1912, No. 447, dismissing exceptions to auditor’s report in case of Traction Materials Company v. Pittsburgh, McKeesport & Westmoreland Railway Company.</p> <p>Bill in equity for the appointment of receiver.</p> <p>Exceptions to report of auditor. Before Davis, J.</p> <p>The facts appear in Traction Materials Company v. Pittsburgh, McKeesport & Westmoreland Co., 261 Pa. 153.</p> <p>The court dismissed the exceptions. James Y. Secrist, Receiver, appealed.</p> <p>Errors assigned were in dismissing the exceptions.</p>

<p>Appeal, No. 138, Jan. T., 1917, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., Dec. T., 1915, No. 4302, dismissing bill in equity, in case of Albert S. Longbottom, Trustee in Bankruptcy of the Estate of John W. Emery, v. John W. Emery, Ida W. Emery et al.</p> <p>Bill in equity to compel payment to plaintiff of the cash surrender value of an insurance policy. Before McMictiael, 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>Error assigned was the decree of the court.</p>

<p>Actions — Actions in personam — Service of process — Service by publication — Service outside jurisdiction — Failure to serve — Fffect —Beneficial associations — Death benefit certificates — Suits—Time for bringing suits — By-laws—Construction.</p> <p>1. Where the entire object of an action is to determine the personal rights and obligations of the defendants, that is, where the suit is merely in personam, constructive service by publication upon a nonresident is ineffectual for any purpose. Process from the tribunals of one state can not run into another state, and summon parties there domiciled to leave its territory and to respond to proceedings against them. Publication of process or notice within the state where the tribunal sits can not create any greater obligation upon the nonresident to appear. Process sent to him out of the state, and process published within it, are equally unavailing in proceedings to establish his personal liability.</p> <p>2. A beneficial society organized under the laws of Massachusetts and a similar society organized under the laws of Tennessee were consolidated by an agreement whereby the entire membership of the Massachusetts society was merged in the membership of the Tennessee society. Thereafter a suit in equity was brought in Tennessee against both societies, alleging that the Tennessee society had no right to form said consolidation and praying that the agreement of merger be cancelled. The Massachusetts society was not served with process and did not appear; hut notice was given to it by publication in accordance with the laws of Tennessee. A decree pro confesso was entered for the plaintiff. In an action by a beneficiary under a death benefit certificate which had been issued by the Massachusetts society prior to the merger, against the Tennessee society, defendant contended that the agreement of merger between the two societies had been cancelled by the Supreme Court of Tennessee, and that, therefore, the plaintiff had no claim against the defendant. The trial judge directed a verdict for plaintiff upon which judgment was entered. Held, that the action of the Tennessee court in cancelling the agreement of merger was not binding upon the plaintiff because the Massachusetts society had never been served with process, and that the service by publication was not binding upon the Massachusetts society, and the judgment was affirmed.</p> <p>Timberlake v. Golden Cross, 208 Mass. 411, followed.</p> <p>3. In such case it appeared that plaintiff’s husband was received by defendant as one of its members under the agreement of consolidation; that'defendant did not issue a new certificate to him, but merely assumed the liability of the Massachusetts company with an unimportant modification; and that a by-law of the Massachusetts society provided that “no action......shall be brought ■......unless such action is brought within one year from the time when such right of action accrues.” It further appeared from the certificate that payment was to be made to the plaintiff upon satisfactory evidence of the death of the member and that there was no right to bring an action until proof of the member’s death had been furnished; that a by-law of defendant provided that “no action ......shall be brought......unless the same is commenced within two years from the time when such right of action accrues. Said right of action accrues when official notice of death is received by the supreme keeper of the records.” It further appeared that the action was brought within two years of the death of plaintiff’s husband and within one year from the date when proofs of loss were furnished. Held, that the action was brought within the time required by the by-laws. .</p> <p>• Practice, Supreme Court — Questions which will he°considered on appeal.</p> <p>4. No other questions except those raised in the statement of the question involved will be considered, on appeal.</p>

Appeal, No. 260, Jan. T., 1917, by defendant, from judgment of C. P. Schuylkill Co., May T., 1917, No. 169, for plaintiff for want of sufficient affidavit of defense, in case of Nortlnvestern Consolidated Milling Company y. George D. Young. Assumpsit for money had and received for plaintiff’s. use. Rule for judgment for want of a sufficient affidavit of defense.

<p>Appeal, No. 281, Jan. T., 1917, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1916, No. 195, on directed verdict for plaintiff, in case of Edwin D. Buell, Trustee of the G. A. Webster. Company, v. Williamsport Staple Company.</p> <p>Assumpsit on a contract. Before Whitehead, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff by direction of the court for $2,-957.20 and judgment thereon. Defendant appealed.</p> <p>Error assigned was in directing a verdict for the plaintiff.</p>

<p>Appeals — Practice, Supreme Court — Attachment—Violation of injunction decree — Findings of fact.</p> <p>A decree dismissing- a rule for an attachment sought on the ground of an alleged violation of an injunction decree, will not he disturbed on appeal where the lower court, after a hearing and upon careful investigation, found as a fact that the defendant had fully complied with its decree.</p>

<p>Appeals, Nos. 48 and 49, Jan. T., 1918, by plaintiff, from decrees of C. P. Lackawanna Co., March T., 1916,' Nos. 1 and 2, dismissing bills in equity for an injunction, in case of Adam Kroshinsld v. The School District of the Borough of Dickson City, and the Dickson Lumber Company.</p> <p>Motion to continue preliminary injunction. Before Edwards, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court on final hearing dissolved the injunction which it had issued and dismissed the bill. Plaintiff appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of fact and conclusions of law and the decree of the court.</p>

Appeal, No. 205, Jan. T., 1917, by Charles J. Nolan, from decree of O. C. Berks Co., June T., 1916, No. 9, refusing issue devisavit vel non, in Estate of Francis Reilly Nolan, deceased. Petition for issue devisavit vel non. Before Wilhelm, P. J., specially presiding. The opinion of the Supreme Court states the facts. The court refused the issue. Petitioner appealed. Error assigned was the decree of the court.

<p>Appeal, No. 136, Jan. T., 1917, by plaintiffs, from decree of C. P. Berks Co., Equity Docket, 1917, No. 1188,. sustaining demurrer and dismissing bill in equity for an injunction in case of Margaret E. McCarty Jones and Richmond L. Jones, her husband, v. The Wyomissing Club, Owner, and Andrew J. Fink, Contractor.</p> <p>Bill in equity for an injunction.</p> <p>Endlich, P. J., filed the following opinion sur defendants’ demurrer to the bill.</p> <p>Mrs. Jones, the principal plaintiff, and the Wyomissing Club, the principal defendant, are the owners of adjoining properties in the City of Reading fronting on Fifth street, the plaintiff deriving title through successive holders from one Sallade, and the defendant similarly from one Dunn. On plaintiffs’ property there is a house (plaintiffs’ residence),'and on defendant’s property there was one until recently, when it was demolished to make room for a new building.</p> <p>, The purpose of this action is to inhibit the defendant, in the erection of the new structure, from building three and one-half feet west of a certain line which, it is stated in the bill as now amended in the fourth paragraph, was in 1848 agreed upon as a building line by the then owners of the respective properties and subsequently by Sallade when he became the owner of and built upon plaintiffs’ property, the former also constructing the north wall of his house (the side towards plaintiffs’ property) as a party wall, which, however, is not alleged to have been utilized by Sallade.</p> <p>Defendant has demurred to the bill, specifying a number of grounds, of which, since the amendment of the bill, the significant ones are the seventh and eighth, to the effect that the bill avers neither the appearance of any such agreement and restriction in the title of the property to be affected thereby, nor any notice of the same to defendant or any of its predecessors in title under Dunn.</p> <p>The portions of the bill, as amended, which are important for present purposes, 'are as follows:</p> <p>“4 That on or about August 30,1848, James L. Dunn, Esq., erected the building on the corner of Fifth and Walnut streets, which the defendant club building is now succeeding. He and the then owner of the adjoining property fronting on Fifth' street, now owned by the plaintiffs, made an agreement whereby they established a line twenty feet east of the street line for the Ideation of all future buildings to be erected upon these premises. Pursuant thereto the said James L. Dunn erected a building twenty feet back from the street line, and erected a party wall between him and the adjoining .'owner, the western end of which was twenty feet back from the Fifth street line. That subsequently, to wit, on or about April 1, 1850, Andrew M. Sallade, Esq.,.who succeeded to the title of the premises now owned by the plaintiffs, pursuant to and in compliance with the said agreement, built upon the line established as aforesaid, observing the said building line and restriction for the purpose of mutually increasing the value and comfortable enjoyment of their respective premises; each party observing and confirming the servitude or easement established by agreement as aforesaid in favor of the estate of the other, for their mutual advantage and benefit.</p> <p>“5. That notwithstanding the restriction and servitude thus imposed upon the lot of the defendants, they have commenced the erection of a building on said Fifth street to extend three and one-half feet west of said covenant building line (being the line of plaintiffs’ residence), established by the predecessors in title of the parties to this action more than sixty years ago and maintained continuously and uninterruptedly in good faith and mutual understanding ever since.</p> <p>“6. That the said plaintiffs and the prior owners of 209 North Fifth street have enjoyed, since said buildings were erected, an open area and unobstructed space in front of said buildings to the west, with the attendant comforts of light and air; and the owners of the property north of the Dunn property, in subsequently building, followed the covenant line thus established for future buildings, as appears by the marks upon the ground, covering the seven buildings now thereon erected.”</p> <p>In a bill in equity, every fact essential to the right to the relief prayed for must be averred: Thompson’s App., 126 Pa. 367; P. S. V. R. R. Co. v. P. & R. R. R. Co., 160 Pa. 277; Finletter v. Appleton, 195 Pa. 349; Luther v. Luther, 216 Pa. 1; Rittenhouse v. Newhard, 232 Pa. 433; Spangler Brewing Co. v. McHenry, 242 Pa. 522; and a demurrer admits only what is adequately stated in the bill, not conclusions of law or argumentative or doubtful inferences from facts detailed: Com. v. Allegheny Com’rs, 37 Pa. 277, 279; Getty v. Pa. Inst. for Blind, 194 Pa. 571, 575; Bussier v. Weekly, 4 Pa. Superior Ct. 69, 72. A right of the kind here asserted over another’s land must, save in exceptional conditions not found in this case, rest upon express agreement: Rennyson’s App., 94 Pa. 147, 153, (and see Haverstick v. Sipe, 33 Pa. 368), which, in order to avail against succeeding owners, must clearly and positively appear to have been intended, not only to bind the immediate parties to it, but permanently to control the situation: Hubbell v. Warren, 8 Allen (Mass.) 173, 178. Nor is it or can it be disputed, or I’O quired to be demonstrated by the citation of authorities, that subsequent purchasers cannot be affected by such agreement Unless they have notice, actual or constructive, of the restriction created thereby. And that notice must have reached every one in the line of the title of the party against whom the right is asserted; for if any one purchased without notice, that party, though himself visited with notice, is protected by the equity of the unnotified purchaser: Filby v. Miller, 25 Pa. 264. Of course, the fact of notice is one which is bound to appear affirmatively on the face of the bill: Finletter v. Appleton, 195 Pa. 349, 353; Gilkeson v. Thompson, 210 Pa. 355, 358-9, either by express and formal averment or by deduction from facts explicitly stated which admit of no other conclusions, so that from them the inference of notice must necessarily follow: Ibid.</p> <p>There seems to be in this bill no express averment of notice of the alleged agreement or restriction to defendant or any of its predecessors in title under Dunn,— nothing to suggest such notice beyond what may be argued to have been conveyed to them by the facts that the houses already spoken of and several others occupying the remainder of the original tract north of the Dunn property stood a uniform distance back of the city building line and that the first one was built with a party wall on the north side. Neither of these circumstances, however, can be regarded as conclusive in the sense above pointed out. It is virtually decided by Judge King in Scott v. Burton, 2 Ashm. 312, 329-30, that the mere location of the houses is not ordinarily notice to a purchaser of any restrictive agreement such as is here contended for; and the same doctrine may fairly be gathered from Haverstock v. Sipe, 33 Pa. 368, 371; Keats v. Hugo, 115 Mass. 204. As ordinarily, so in the present instance, that location, so far as regards anything to be indicated by it, may have been a mere matter of neighborly accommodation, of personal convenience, of individual taste, without any contractual basis or possibly of an agreement intended to hold only the immediate parties to it. On the other hand, the existence of the party wall, apparently unused by the adjoiner, affords no reason for believing that the latter might not build out further,— no more than for treating it as evidencing an agreement not to build higher. The object in putting it up may well have been simply to serve the then present convenience of the first builder, and perhaps the supposed future convenience of the adjoiner as far as the wall went. Besides, its erection being the act of one party, not followed by any act of the other making it Ms also, it can hardly be deemed evidence or notice of an agreement between them. To both of the matters in question, the rule appears applicable that a fact or facts equally consistent with two contrary inferences cannot be accepted as the sole basis for either: Breuckmann v. Twibill, 89 Pa. 58, 59; Mead v. Conroe, 113 Pa. 220, 228; Alexander v. Penna. Water Co., 201 Pa. 252, 256. If the facts averred clearly involved the inference of notice of a restrictive agreement designed to be perpetual, there would be no need for an express allegation of such notice. But in view of their inconclusiveness, the allegation is essential to the completeness of the bill, and it lacks ground for demurrer under the authorities above cited. <</p> <p>No doubt the averments of this bill state the plaintiffs’ case as strongly for her side as it can be stated. It can only be adjudged that, in the particulars discussed, it falls short of what is needful to warrant a decree granting the relief prayed. Hence there is no alternative but to consider the demurrer in those particulars to be good.</p> <p>The defendants demurred to the bill.</p> <p>The court sustained the demurrer and dismissed the bill. Plaintiffs appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Contracts — Sales of real estate — Variation by parol — Measure of proof — Reforming written instrument — Showing different consideration — Theory of trial — Issue—Appeals—Change of issue on appeal — Assignments of error — Failure to except.</p> <p>1. Where' a father-in-law executed a deed for a house and lot to a daughter-in-law for the expressed consideration of $2,000.00, and a week later executed a bill of sale for the household furniture and other personal property for a consideration of $75.00, and defendant paid a mortgage of $600.00 which was upon the property, but made no further payment on account of either realty or personalty; and alleged in a suit for the considerations expressed in the written instruments that the transfer was intended as a gift in consideration of defendant’s promise to pay the mortgage debt; and as that had been done, no further amount was due, and the evidence was conflicting, the court properly charged the jury that the writings must prevail unless the jury were “clearly satisfied......by the evidence, beyond any reasonable doubt, as strongly as oral testimony can satisfy the mind,” that defendant’s statement of the transaction was true.</p> <p>2. Where in such case it was contended on appeal that the issue was merely one of showing a different consideration from that expressed in the deed, ánd that the ease was not within the rule as to the degree of proof necessary to reform a written instrument, but was within the rule that a different consideration from that measured in the instrument may be shown by merely a preponderance of evidence, but where it appeared from the affidavit of defense that the issue was not that the consideration was less than that expressed in the deed, but that the transfer was in fact a gift and not a sale, and where it further appeared that the case was tried by all parties and the court on this theory, the judgment was affirmed.</p> <p>3. Assignments of error complaining of parts of tbe charge to the jury are defective where they do not show that exceptions were taken to the charge.</p>

<p>Appeal, No. 35, Jan. T., 1918, by plaintiff, from judgment of C. P. Montour Co., June T., 1917, No. 15, entered for want of a sufficient statement of claim in case of William Elwood Davis v. George D. Edmondson.</p> <p>Trespass for personal injuries.</p> <p>The facts appear from the following opinion by Evans, P. J.:</p> <p>The affidavit of defense in this case is practically a demurrer to the plaintiff’s statement — that the statement does not set forth a cause of action against the defendant. Therefore every material allegation of fact stated therein must be regarded as true for the purpose of determining the question now before the court.</p> <p>The “Practice Act” of May 14, 1915, P. L. 483, abolish.es a demurrer as a possible pleading in actions of assumpsit and trespass, except for libel and slander, brought in the Common Pleas. Section 4 of the act reads as follows:</p> <p>• “Demurrers are abolished. Questions of law heretofore raised by demurrer shall be raised in the affidavit of defense, as provided in section twenty.”</p> <p>Section 20 of the act reads as follows:</p> <p>“The defendant in the affidavit of defense may raise any question of law, without answering the averments of fact in the statement of claim; and any question of law, so raised, may be set down for hearing, and disposed of by the. court. If in the opinion of the court the decision of such question of law disposes of the whole or any part of the claim, the court may enter judgment for the defendant, or make such other order as may be just......”</p> <p>The plaintiff in this case claims to recover damages for personal injuries because of the failure of the defendant to erect a guard rail around a platform three by six feet erected in a private alley in the rear of the opera house building in the Borough of Danville in this county.</p> <p>The facts upon which the plaintiff bases his right to recover as disclosed by the statement and amended statement are as follows:</p> <p>■ 1. On and prior to February 17, 1917 (date of accident) , the defendant was the owner of a four-story brick building at the northeast corner of Mill and Mahoning streets in the Borough of Danville.</p> <p>2. The defendant rented a room on the ground floor in said building to Mrs. Jacobs for the purpose of conducting dancing classes and the holding of dances therein.</p> <p>3. During the time the room was so rented and occupied and at the time of the accident there existed a narrow private alley or passageway in the rear of the building.</p> <p>4. A door opened from the rear of the room directly on a wooden platform about three by six feet extending across the private alley at a level of from five to seven feet above tie ground. The platform was directly outside of the door and doorway in the rear of the room leased to Mrs. Jacobs and was unguarded by railing or barrier of any kind.</p> <p>5. During the time dances were going on in the room it was customary for the tenant to open said rear door and for dancers and musicians and others attending to pass through the .same, go upon, stand on and temporarily occupy the said wooden platform.</p> <p>6. On the night of February 17,1917, the plaintiff was employed as one of the musicians who played for the dance held that night in the room leased to Mrs. Jacobs. During an intermission between the dances he passed through said door and.doorway, out on the said small wooden platform and stepped off and was injured.</p> <p>7. The plaintiff was not familiar with the said small wooden platform, did not know of its existence, had. never been in the dance room before that night.</p> <p>8. Some one other than the plaintiff opened the door on the night of the accident and during an intermission the plaintiff walked out through the open door on the little wooden platform. He could not see the ends thereof because of the darkness of the night and he walked off of the platform and was injured.</p> <p>Upon this statement of facts the defendant contends in the affidavit of defense that the plaintiff is not entitled to recover:</p> <p>1. Because the statement does not show any liability on the part of the defendant, entitling the plaintiff to recover the damages claimed.</p> <p>2. Because .the statement does not aver any negligence upon the part of the defendant, making him liable for the damages claimed.</p> <p>3. Because the statement shows no cause df action against the defendant.</p> <p>Upon the argument on the part of the plaintiff it was contended that ’the defendant rented his room for a dance hall, knowing that it would be used for such purpose; that it had a doorway in the rear opening upon the narrow, unguarded and unlighted platform, that if attendants upon dances passed through the doorway and attempted to stand on the platform in the nighttime they were in danger of stepping off of the same by reason of its being unguarded and únlighted; that he knew that the opening of such a door and the passing out on this platform by those attending the dance, was the usual, ordinary and probable act to be expected and anticipated ; that dancers or musicians engaged in violent exercise in a heated room would open this rear door, and during intermissions step out on the platform to temporarily occupy the same for air and relaxation, and this was such a natural, reasonable and probable use of !he premises as should have been foreseen and anticipated and the danger incident thereto guarded against and, the defendant having failed to do so, was guilty of negligence.</p> <p>On the other hand on the part of the defendant it was contended that the plaintiff is not entitled to recover for the following reasons:</p> <p>1. Because no negligence is alleged or shown; that the statement nowhere shows any negligence on the part of' the defendant which would entitle the plaintiff to recover ; that the room was rented as shown by the third paragraph of the statement to Mrs. Jacobs; that the defendant landlord owed no duty outside of the room to third parties, the patrons of his tenant; that the private alley or passageway in the rear of the building paved with cobble stones was no part of the room leased and that the lease gave the tenant no right to. the said alley or passageway; and</p> <p>2. Because the plaintiff’s statement clearly shows and convicts him of contributory negligence.</p> <p>As the court views this case the plaintiff’s contributory negligence as disclosed by his statement is decisive.</p> <p>In the trial of a negligence case where damages are claimed for personal injuries the plaintiff is not required to disprove contributory negligence but only to make out a case clear of contributory negligence. If he fails to make out a case clear of contributory negligence a verdict should be directed for the defendant. The universal rule is that if negligence on the part of the person injured contributed to the injury he is not entitled to recover therefor, and the rule applies although the contributory negligence is of a negative character, such as a lack of vigilance: 29 Cyc. 507.</p> <p>In the opinion of the court the 13th, 14th, 15th and 16th paragraphs of the plaintiff’s statement clearly convict him of contributory negligence. He was employed as one of the musicians to play for the dance on the night of the accident; he had never previously attended any of the dances held in the room leased to Mrs. Jacobs; he did not know of the existence of the little three by six foot wooden platform erected across the private alley or passageway in the rear of the building. Some one other than the plaintiff opened the door earlier in the evening on the night of the accident, and the plaintiff, a total stranger to the place and surroundings, walked out through the doorway in the darkness of the night on the little wooden platform and because he could not see the ends of the platform he stepped off and was injured.</p> <p>In Sweeney, Appellant, v. Barrett, 151 Pa. 600, the syllabus of the case reads:</p> <p>In an action for damages for personal' injuries a non-suit is properly entered where it appears that plaintiff, on a dark night, stepped from the rear door of the saloon leased to the defendant with the intention of going on to a lot with which he was unfamiliar, and turning as he stepped out, fell down an outside open stairway leading to a cellar, there being no evidence that the stairway was built in an improper or unskillful manner.</p> <p>In Johnson v. Wilcox, 135 Pa. 217, it was held that where a plaintiff, while on his way to a dance-room in the third story of a building having a safe entrance by a well-lighted hall and stairway, stepped aside through a door on the second floor out in the dark, upon a platform which he thought Avas protected by a railing, but fell and was injured, was guilty of such contributory negligence that in an action against the owner of the building it was proper to direct a verdict for the defendant.</p> <p>The injury of which the plaintiff complains in this case was so clearly the result of his own carelessness or negligence that he is not entitled to recover. He did not even know of the existence of the platform as he walked out through the open door in the darkness of the night and stepped therefrom.</p> <p>Defendant filed an affidavit of defense in the nature of a demurrer.</p> <p>The lower court entered judgment for the defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was in entering judgment for the defendant.</p>

<p>Negligence — Automobile—Motorcycle—Head-on collision — Ccur driven by repairman — Owner in car — Owner’s liability — Presumption — Buie of road — Passing to right — Ordinance—Act of July 7, 1918, P. L. 67!8 — Points ■assuming existence of disputed fads— Conflicting evidence — Contributory negligence — Case for jury.</p> <p>1. Each driver of approaching vehicles has the right to assume that the other will use due care.</p> <p>2. There is a presumption that an owner present in his car has power to control it.</p> <p>3. The owner of a car is not relieved of responsibility for its management merely because he is not personally at the wheel, where another is acting as driver with his permission, especially where the owner tacitly assents to the manner in which the car is driven.</p> <p>4. One may not drive recklessly or with undue speed even on his own side of the street and does not necessarily escape liability for an accident because he was on the proper side.</p> <p>5. A city ordinance requiring vehicles to keep to the right of the centre of the street in the direction in which they are going is not per se evidence of negligence but may properly be considered in connection with the evidence in the case.</p> <p>6. The Act of July 7, 1913, P. L. 672, requiring the driver of a motor vehicle, when overtaken,’ to turn reasonably to the right of the centre of the highway allowing the other vehicle free passage to the left, does not change the rule of the road, or conflict with an ordinance requiring approaching vehicles to pass to the right.</p> <p>7. A regulation requiring .vehicles to keep to the right of the centre of the street may be practicable in cities but not in country districts, while the rule of turning out to the-right applies to both.</p> <p>8. A request for charge which assumes, the existence of disputed facts cannot be granted.</p> <p>9. In the trial of an action for damages arising from a collision between two vehicles where the evidence was conflicting as to whether plaintiff was on his right side of street at the time of the collision, and as to which vehicle ran into the other, points assuming the existence of either contention were properly refused.</p> <p>10. In an action to recover for death of plaintiff’s husband, a motorcycle driver, resulting from a head-on collision with an automobile while the former was ascending a steep grade after passing through a subway under a railroad track, the case was for the jury and a verdict and judgment for the plaintiff will be sustained where the evidence was conflicting as to the respective speeds of the two vehicles, and as to whether deceased and defendant were on their respective right sides of the road; and it appeared that the collision occurred in daytime after deceased and defendant had been in view of each other for over 300 feet; and that at the time of the collision a repairman, who was to make repairs to the automobile, was driving it to see what repairs were needed, and that the owner sat beside him but made no requést or suggestion as to the driving of the car.</p>

<p>Appeal, No. 213, Jan. T., 1917, by Metta C. Reisher, Grace Gilbert, Hazel Spahr and Farmers & Merchants Trust -Company of Chambers-burg, Guardian of Arthur 8. Reisher, Theodore Reisher, Walter E. Reisher, Mildred E. Reisher, Gladys M. Reisher, Rosalie L. Reisher and John L. Reisher, from decree of O. C. Franklin Co., dismissing exceptions to sheriff’s inquisition in partition proceedings in estate of Samuel Reisher, deceased.</p> <p>Petition for partition of a decedent’s real estate. Before Gillan, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed the exceptions to and confirmed the sheriff’s inquisition. Metta C. Reisher, Grace Gilbert, Hazel Spahr and Farmers & Merchants Trust Company of Chambersburg, Guardian of Arthur A. Reisher, Theodore Reisher, Walter E. Reisher, Mildred E. Reisher, Gladys M. Reisher, Rosalie L. Reisher and John L. Reisher appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 319, Jan. T., 1917, by defendant, from .judgment C. P. Northampton Co., June T., 1915, No. 46, on verdict for plaintiff in case of James DeNardo v. Stephens-Jackson Co.</p> <p>Trespass to recover damages for personal injuries. Before McKeen, J.</p> <p>The facts appear from the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $2,167.00 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing to enter judgment for defendant non obstante veredicto.</p>

<p>Wills — Construction—Gift to children of testators son — Subsequent adoption of child by son — Intention.</p> <p>1. The law makes a distinction between a natural and an adopted child. It gives the latter- the right to inherit but does not change his identity or make him a child in fact.</p> <p>2. Ordinarily and by common usage the word children is understood to mean immediate offspring or descendants.</p> <p>3. Courts are disposed to confine and limit the word children in its application, when it occurs in a will, to its natural import, except where the testator has clearly shown by other words that he intended to use the term in a more extensive sense.</p> <p>4. Under a bequest to children, grandchildren and other remote issues are excluded, unless it be the apparent intention of the testator, disclosed by his will, to provide for the children of the deceased child; but such construction can only arise from a clear intention or a néfeessary implication, either (1) when the will would remain inoperative unless the sense of the word “children” were extended beyond its natural import, or (2) where the testator has clearly shown by other words that he did not intend to use the term “children” in the proper actuál meaning, but in a more extensive sense.</p> <p>6. Testator gave his residuary estate in trust for his son for life, and on his death “absolutely to his child or children and their heirs .......in the event of my said son......dying without leaving any child or children then” over. The son died leaving no natural-born child or children, but was’ survived by a child adopted four years after the death of the testator. There was nothing in the will suggesting that so far as testator knew the adoption of a child was contemplated by his son and there was no evidence of extrinsic facts indicating that testator intended that any one not of his blood should share in his bounty. Held, (1) the adopted child was not a child within the meaning of the will, and (2) the gift overtook effect.</p>

<p>Appeal, No. 287, Jan. T., 1917, by defendant, from judgment of C. P. Sullivan Co., Dec. T., 1916, No-. 35, on verdict for plaintiff in case of John G. Scouton v. The Stony Brook Lumber Company.</p> <p>Assumpsit for money loaned. Before Terry, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $5,465 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment non obstante veredicto.</p>

<p>Negligence — Vehicle driver — Narrow street — Horse on trot — Slack rein — Shying of horse — Throwing of wagon on sidewalk— Injury to pedestrian — Case for jury.</p> <p>In .an action for personal injuries, where it'appeared that the driver of defendant’s horse and wagon drove the horse at a trot, with loose rein, along a six and one-half foot roadway bordered by a sidewalk only two feet in width, and that the horse suddenly shied and moved sidewise, throwing a wheel of the wagon upon the sidewalk and striking plaintiff, a small boy, the questions whether the driver had exercised due care in proceeding at such speed and with slack rein were for the jury, and a verdict and judgment for the plaintiff were sustained.</p>

<p>Appeal, No. 382, Jan. T., 1917, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., March T., 1914, No. 409, refusing to take off compulsory nonsuit in case of Onney B. Doyle v-. Philadelphia Rapid Transit Company.</p> <p>Trespass for personal injuries.</p> <p>The facts appear by the following from the remarks of Ferguson, J., in entering the compulsory nonsuit:</p> <p>In this case we have nothing but the fact that there fcvas a collision. We have an automobile standing against the curb on the north side of Arch street east of Broad street (in the City of Philadelphia); we have the wagon of Mr. Field standing on the north side of Arch street east of Broad street, thirty feet back of the automobile, and from the horse’s head to the tailboard of the wagon was sixteen feet, so the distance between the automobile and the wagon was just about twice the length of the horse and wagon. The case absolutely depends upon the testimony of Mr. Field, if there is any case at all, because Doyle saw nothing. All he knows is that there was a crash, and, as I said before, the mere fact that there was a crash and that he was injured as a result of the crash does not prove that the transit company was negligent, because when there is another wagon, which is a free agent in the streets and may go wherever the driver directs it, you can easily see that it might possibly be that a collision would have resulted no matter how careful the motorman might have been. Mr. Field says that when he came out of the cigar store he saw the car coming west on Arch street and crossing Thirteenth street, and he walked down to the curb and got into his wagon and looked through the window in the back and saw the car was coming. He did not tell us where it was; he did not tell us how close it was. He took the reins and drove ahead, and at some point between where the wagon had been standing and where the automobile was, as to which he leaves us entirely in the dark, he pulled his horse out to straddle the track in order to get around the automobile and was struck by the car. That that resulted from the negligence of the motorman of the car there is nO‘ evidence. The car had the right of way, and the motorman had the right to assume that a man driving a wagon in the street ahead of him alongside of the track would not drive the wagon in front of the car. If he did pull the wagon in front of the car, it did not make the motorman negligent. He could only be held negligent under circumstances such as are indicated in this case if the wagon had been on the track or approaching the track a sufficient distance from the car for the motorman to have stopped the car and to have avoided the collision. ■ Those distances are not given to us, and juries are not permitted to guess what must have been the fact. They have to have the evidence, and they have to have an opportunity of determining whether they will believe it or not, but, assuming that, they believe it, they have to have evidence'from which they could conclude that there was negligence. That evidence does not appear in this case, and for that reason I enter a nonsuit.</p> <p>The lower court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing to take off nonsuit.</p>

<p>Evidence — Booh entries — Verification—Records hept by third persons — Discretion of court — Inadmissibility — Trials - — ■ Examination — Evidence tending to discredit witness — Admissibility.</p> <p>1. What is sufficient verification of hook entries to warrant their admission is largely a question for the discretion of the trial judge.</p> <p>2. Where in an action to recover damages from a railroad company for personal injuries sustained in a collision, it appeared that plaintiff was on her way to Atlantic City; and that, after the accident, she completed her journey and remained there three days, and her condition while there was a controverted question at the trial, and a photograph was offered in evidence showing the plaintiff in a bathing suit, it was not error to refuse to permit the introduction in evidence of records of the establishment where the photograph was made, tending to show that it was taken two days after the accident, where the person who took the photograph was not called as a witness, and where there was nothing to show that the records relating to the photographs were in his .handwriting; and where further there was nothing to show that any effort had been made to locate him and bring him to the trial.</p> <p>8. Evidence of a threat to give false testimony made to one party by a witness of the other is relevant as affecting the truthfulness of such witness, and will not be excluded because expressly made to induce settlement of the case.</p> <p>4. Where in such case, it appeared that plaintiff had had some discussion with an uncle who was in the employ o£ defendant relative to the settlement of the ease, and the uncle appeared as witness for the defendant and testified that plaintiff was not injured, it was not error to admit in rebuttal evidence to show that the' witness had threatened to “lie the plaintiffs out of c<?urt” if they did not settle the case.</p> <p>Practice, Supreme Court — Assignments of error.</p> <p>5. Error can be assigned only to so much of the charge as was made the subject of exception.</p>

<p>Appeal, No. 261, Jan. T., 1917, by defendant, from judgment of C. P. Schuylkill Co., March T., 1917, No. 249, for plaintiff, for want of a sufficient affidavit of defense, in case of William L. Hunt, use-plaintiff, v. William Snyder.</p> <p>Assumpsit on a judgment recovered against defendant in the Supreme Court of Niagara County, New York.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Bechtel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered judgment for plaintiff for want of a sufficient affidavit of defense. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff for want of a sufficient affidavit of defense.</p>

<p>Execution — Attachment execution — Funds in custodia legis— Bail in hands of cleric of court — Cash hail accepted without authority — Act of Ma/rch Ilf, 1877, P. L. 8 — Agreement of counsel — Construction — Validity of attachment.</p> <p>1. A fund held by a clerk of court in his official capacity by virtue of authority of law is in custodia legis and is exempt from attachment, but where held by such officer in his private capacity, and not by statutory provision, the fund is attachable.</p> <p>2. A general power to take bail does not authorize the receipt of a deposit of money in lieu thereof.</p> <p>3. Under the Act of March 14, 1877, P. L. 3, authorizing the clerk of the Quarter Sessions to take bail in certain cases, the clerk is not authorized to accept a deposit of money in lieu thereof and if he does so the fund so held is not in custodia legis and is attachable.</p> <p>4. Where judgments were entered on the bonds of a tax collector against the collector and his surety, and upon refusal of the court to open the judgments, an appeal was taken from the order entered as to one of the judgments only and counsel agreed that the disposition of the appeal taken from the refusal of the court to open such judgment should be conclusive of the facts in the other judgments, such agreement only meant that the judgments from which no appeal was taken should be opened only if the judgment whoso validity was questioned before the Supreme Court should be directed to be opened and did not prevent the issuing of process on the other judgments, pending the appeal.</p> <p>5. Where in such case, the tax collector was convicted of embezzlement and was allowed to appeal to the Superior Court from the sentence imposed by the Court of Quarter Sessions and in allowing the appeal the Superior Court ordered him to enter into a recognizance in the sum of $5,000 for his appearance if the judgment should be affirmed, and the surety on his bond as tax collector deposited $5,000 cash with the clerk of the Court of Quarter Sessions, the clerk was not authorized to accept such deposit and the funds in his hands were not in the custody of the law and were therefore properly attached on writ of attachment execution issued against the surety.</p>

<p>Bankruptcy — Bankruptcy Act, Section 67f — Construction—Liens —Judgments—Void liens.</p> <p>1. An adjudication of bankruptcy ipso facto renders null and void all liens obtained through legal proceedings against the bankrupt within four months prior to the filing of the petition in bankruptcy against him. Whether the bankrupt’s estate is administered by a trustee or there is a composition by the bankrupt with his creditors, the effect of a discharge in bankruptcy is the same, if the composition is confirmed by the court.</p> <p>2. In proceedings to determine the validity of the lien of a judgment entered against a partnership and the individual members thereof, where it appeared that within four months after the judgment had been, entered, proceedings in bankruptcy were instituted against the firm and its individual members, and that they were subsequently adjudged bankrupts and filed schedules wherein they named plaintiffs as creditors, and thereafter made a composition with their creditors which was confirmed by the bankruptcy court and was carried out by the bankrupts, the lower court properly held that the judgment which had been entered was rendered void by the bankruptcy proceedings.</p>

<p>Decedents’ estates — Executors and administrators — Surcharge— Liquor business — 'Continuation of business — Losses—Advance payments — Rents.</p> <p>1. Where the personal representative of a decedent engaged in the sale of liquor continues the decedent’s liquor business after his death without obtaining a transfer of the license, the continued sale of liquor is a violation of the law by which no legal or equitable claim to reimbursement is acquired if loss results therefrom.</p> <p>2. Where a will gives no authority to continue the testator’s business, the executor or administrator may not, as a general rule, properly do so; when he does so, the gain, if any, belongs to the estate, while the loss falls upon him.</p> <p>3. Where the personal representative of a decedent engaged in the liquor business continued her decedent’s liquor business after his death without obtaining a transfer of the license for a period of almost nine months, and incurred a net loss of $1,060.79, a claim for credit in her account for the amount of such loss was properly-refused.</p> <p>4. In such ease, it was error to surcharge the accountant, in addition to the amount of such- loss, with certain expenses which she had incurred in the sale of eatables, amounting to $1,665.65, where it appeared that the estate was credited with the amount received-from the sale of such eatables.</p> <p>5. An admink+rator has no right to make advance payments to certain general creditors in full to the exclusion of others; and in so doing takes the risk of the solvency of the estate.</p> <p>6. Where in such case before the account was filed, the administratrix expended over $3,000 in paying in full certain creditors of the estate, while she had paid nothing to other creditors of equal rank, and-the fund was not sufficient to pay all creditors in full, the court.properly surcharged her with the amount of such payments without prejudice to her right to take the place of creditors so paid and pro rate with those unpaid in the fund for distribution.</p> <p>7. A charge for rent received by an administratrix from real estate and a credit for expenditures thereon are .properly stricken from her account, as real estate has no proper place in an administration account except as authorized by the will or where sold for payment of debts.</p>

<p>Negligence — Railroads—Automobiles—Grade crossing — Collision Approach through covered bridge — Obstruction of view — Death of passenger — Unfamiliarity with locality — Ringing of bell — Absence of sufficient warning — Contributory negligence — Sudden danger— Imputed negligence — Case for jury.</p> <p>1. Where in an action against a railroad company to recover for the death of plaintiff’s husband, who was killed in a grade crossing -collision while a passenger in an automobilé, it appeared that the car was traveling about twenty miles an hour along a road which paralleled a creek and turned sharply to the right and up grade to and across a covered bridge, the sides of which were entirely enclosed; that defendant’s' railway crossed the highway thirty-one feet from the far end of the bridge; that at the moment of emerging from the bridge, a view of defendant’s track was obtainable for a distance of 400 feet; that there was a crossing sign attached to the entrance of the bridge farthest from the tracks, but there was no “stop, look and listen” sign at the crossing; that the automobile and the train approached the crossing at approximately the same speed; that although a whistle was blown at a whistling post a quarter of a mile from the crossing, the evidence was’ conflicting as to whether a hell was rung or any other signal given of the approach of the train; that when the automobile approached the track, the driver was not aware of the railroad until within eight feet therefrom, and believing a. stop on the near side impossible, endeavored to cross ahead of the train and the rear of the automobile was struck when it had nearly completed the crossing, the question whether sufficient warning was given to notify travellers approaching the crossing was for the jury.</p> <p>2. Where in such case the driver and deceased were both unfamiliar with the road, it was for the jury to say, in view of the narrow roadway, the sharp curve and the necessity of being on the lookout for other vehicles, whether the driver was guilty of contributory negligence in attempting to drive ahead of the train instead of coming to a stop on the near side of the track.</p> <p>3. Whether the driver’s choice was a wise one is not the question; as the danger was sudden and imminent, he was not bound to pursue the safest and wisest course in attempting to avoid an accident.</p> <p>4. Where in such ease, it appeared that the automobile was hired to take deceased and some friends to a particular destination and was in the immediate control, aside from the destination and route to he traveled, of the driver; that deceased was sitting in the front seat conversing with his friends, with his back in the direction from which the train came; and where there was nothing to show that he was aware of the proximity of the railroad crossing until the engine was upon them, the negligence of the driver was not imputable to him and he was not guilty of contributory negligence as a .matter of law, and verdict for the plaintiff will be sustained.</p>

<p>Appeal, No. 179, Jan. T., 1917, by defendant, from judgment of C. P. Northampton County, April T., 1916, No. 68, on verdict for plaintiff, in case of Katherine B. Kerb, Administratrix of Samuel H. Kerk, deceased, v. Arthur E. Peters.</p> <p>Trespass to recover damages for the death of plaintiff’s decedent. Before McKeen, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $5,500 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant, in refusing to enter judgment for defendant n. o. v., rulings on evidence and the charge to the jury.</p>

<p>- Negligence — Street railways — Automobiles—Dangerous, crossing — Right-angle collision — Passenger in automobile — Gratuitous guest — Death—Familiarity with locality — Contributory negligence —Judgment for defendant n. o. v.</p> <p>In an action against a street railway company to recover for death of plaintiff’s husband resulting from a’right-angle collision between an automobile and one of defendant’s cars, deceased was guilty of contributory negligence as a matter of law and judgment was properly entered for the defendant non obstante veredicto where it appeared that deceased was a guest of the driver of the automobile, beside whom he was seated; that both were familiar with the locality; that the railway tracks were on the near side of the intersecting road; that the view down the tracks was so obstructed that persons in the automobile could not see in the direction from which the car was coming until the automobile was from ten to fifteen feet from the tracks; that-a “stop, look and listen” sign was posted several hundred feet from the crossing and was plainly visible to deceased and the driver; that the automobile did not stop but slackened its speed from twenty to ten miles per hour, and neither the motorman nor the driver saw each other until the street car and the automobile were less than tweiity feet apart, and it was too late for either to avert the collision.</p> <p>Dunlap v. Philadelphia Rapid Transit Company, 248 Pa. 130, followed.</p>

<p>Appeal, No. 293, Jan. T., 1917, by plaintiff, from decree of C. P. Schuylkill Co., Nov. T., 1917, No. 3, dissolving an injunction, in case of The Pottsville Union Traction Company v. The Borough of St. Clair — W. W. Thorn, F. P. Post, Michael Brennan, Albert Mansell, Charles Hughes, Geo. W. Wolff, George Scherr, W. A. Reese and John' Schuster, Councilmen, and W. S. Hirst, Chief Burgess.</p> <p>Bill in equity for an injunction.</p> <p>Bechtel, P. J., filed the following opinion:</p> <p>And now, October 6,1917, we dissolve the preliminary injunction granted in this case, for the reason, first, that we do not feel that we have any jurisdiction, under the decision in the case of the Bellevue Borough, Appellant, v. Ohio Valley Water Co., 245 Pa. 114; and for the further reason that we feel that the evidence has not disclosed any immediate or impending damage to the plaintiff; it discloses rather an apprehension of danger.</p> <p>Other facts appear in the opinion of the Supreme Court.</p> <p>The court dissolved the preliminary injunction which it had granted. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Courts — Records—Erroneous entries — Power to correct — Rubber stamping of date — Slipping of stamp — Impression of wrong month —Evidence—Sufficiency.</p> <p>1. Every court of record is the guardian and judge of its own records and is clothed with full power to control and inquire into them and to set them right if incorrect.</p> <p>2. Where in a proceeding to strike off a mechanic’s lien for master appearing of record, the docket showed that the lien was filed July 7, 1913, and that the nqtice was not filed until August 18, 1913, but the lower court found on convincing evidence that the return of service had actually been filed July 18, 1913, but through an error had been docketed as of August 18, 1913, as the result of the slipping of the rubber dating stamp, and the court discharged the rule without correcting the record, the record was remitted by the Supereme Court with instructions that the record be amended and that the application to strike oil the lien then be discharged.</p>

<p>Worhmen’s compensation law — Jurisdiction—Practice—Referee ■ — Board—Common Pleas — Appellate courts — Evidence—Hearsay—Circumstantial evidence — Sufficiency and competency-Presumption — Wool sorter — Scratch—Anthrax—Death—“Accident” — Occupational diseases — Assumption of rislcs — Appeals—Certiorari— Record — Act of June 2,1915, P. L. 786.</p> <p>1. A compensation referee is an officer of the Workrhen’s Compensation Board, vested with defined duties and powers, and all records made by him belong to the files of that body, and, on appeal, are before it for review, within the limitations of the Workmen’s Compensation Act of June 2, 1915, P. L. 736.</p> <p>2. The Workmen’s Compensation Act of 1915 contemplates and requires that, if, after inspection and consideration of the adjudication and evidence, the board does not' sustain the referee’s final .decision, before the former may reverse on a question of fact, it must grant a hearing de novo, make investigation, and substitute its own findings of fact, and conclusions thereon, for such findings of the referee as are not adopted; but, when an appeal is based on an alleged error of law, the board must act solely upon the record of the referee, and must either sustain, reverse or modify the latter’s final order.</p> <p>3. Appeals to the board are taken under either Section 420 or Section 421 of the Workmen’s Compensation Act, the first amounting to a writ of error and the second to a motion for a new trial, the new trial to be had before the board instead of the referee.</p> <p>4. A finding of fact without any evidence at all is an error of law.</p> <p>5. Where the ultimate finding of a referee is cast in the form of a mixed cpnelusion of fact and law, and the classification of an appeal is not made plain by the appellant, the board must exercise its discretion in determining the nature thereof.</p> <p>6. Where the attack upon the finding of a referee is upon the ground that the testimony was insufficient in fact to justify the referee’s findings and not that there was no legal evidence whatever to warrant them, a question of fact, not of law, is raised and, under Section 431, the board is- obliged either to sustain the referee or grant a hearing de novo.</p> <p>I. On a hearing de novo under Section 421, the depositions taken before a referee may, by agreement of the parties, be accepted by the board as proofs in the case, either for the purpose of finding its own facts or formally adopting those found by the referee; but, on a hearing solely to determine a point of law, raised by appeal under Section 420, the testimony cannot be reexamined for the purpose of finding new facts, because those found by the referee, being unappealed from, are final under Section 409.</p> <p>8. The word “appeal,” at the present time, in our law, has no conclusive meaning, and it is therefore necessary in each instance to look at the particular act giving the right of appeal, to determine just what powers are to be exercised by the appellate court.</p> <p>9. The appeal from the board to the Common Pleas is in the nature of a certiorari, the legislative purpose probably being to prevent appeals to the courts, except for errors of law, and thus, to hasten the final determination of claims under the act.</p> <p>10. While on certiorari judicial review is usually limited to a mere inspection of the record, to ascertain whether the judgment on the record is in conformity therewith, or to ascertain whether the tribunal which rendered such judgment exceeded its jurisdiction or abused its discretion, and the opinion of the lower tribunal is ordinarily no part of the record, nevertheless in statutory proceedings such as under the Compensation Act of 1915, even on certiorari an appellate court may examine the opinion of the court below to see the basis on which it acted.</p> <p>II. The notes of testimony are not properly a part of the record sent up on appeal by the compensation board to the Common Pleas, and, if they are mistakenly included in the record, they should not be considered.</p> <p>12. The right of review by the Supreme and Superior Courts in a compensation claim is on certiorari alone, and their jurisdiction is more analogous to that exercised upon the examination of equity proceedings than on the review of common law actions, and the court may examine all that i,s properly contained, according to the provisions of the Workmen’s Compensation Act of 1915, in the record sent to the Common Pleas, including the findings and reasons stated in the adjudications of the referee and board, and the reasons given by the court below as the basis of its decision, but not the notes of testimony.</p> <p>13. Statutes of the character of the Workmen’s Compensation Act of 1915 contemplate liberality in the admission of proofs, and the inferences reasonably to be drawn therefrom; but the evidence must be relevant and competent. -</p> <p>14. The probable nature of an accident followed by death for which compensation is claimed may be established by circumstantial evidence alone. ■</p> <p>15. Neither tbe referee nor the board has the right to find material facts on hearsay alone.</p> <p>16. While the Workmen’s- Compensation Act permits liberal investigation by hearing and otherwise, yet after all the data has been gathered without regard to technical rules, all irrelevant and incompetent testimony must be put aside and. the findings made to rest upon such relevant and competent evidence of sound, probative character as may be left, whether circumstantial or direct.</p> <p>17. Under Section 301 of the Workmen’s Compensation Act, which provides, inter alia, that “the terms ‘injury’ and ‘personal injury’ shall be construed to mean only violence to the physical structure of the body, and such disease or infection as naturally results therefrom,” the injury to the physical structure of the body need not be external violence but may originate from lifting heavy weights or from other provable causes, such as intense heat operating directly on the part of the body internally affected. If the incident which gives rise to the injurious results complained of can be classed properly as a mishap or fortuitous happening, or an untoward event, which is not expected or designed, it is an accident within the meaning of the workmen’s compensation law.</p> <p>18. Compensation can be allowed where death results from a germ infection if the disease in question must have been a sudden development from some abrupt violence to the physical structure of the body and not the mere result of gradual development from long continued exposure to natural dangers incident to the employment of the deceased person, as in cases of occupational diseases, the risks of which are voluntarily assumed. ,</p> <p>19. As on certiorari the testimony is not before the courts, they are obliged to assume that the evidence was competent, relevant and sufficient in the absence of findings as to the character of the evidence.</p> <p>20. On the hearing of a compensation claim for death of claimant’s husband it appeared that deceased was a wool sorter in the employ of defendant, and that he died of external anthrax, a disease carried by sheep; that deceased when he left defendant’s plant in the afternoon had a small scratch or abrasion on his neck, although he had no such mark when he left for work in the morning; and that this was the beginning of external anthrax from which he died within three days. The findings showed that professional medical experts testified that if deceased had no marks on his neck on the day in question and sustained an abrasion and the neck immediately began to swell and external anthrax developed, this condition was probably brought' about by the anthrax germ entering through the abrasion. Held, in view oí the character of the employment of the deceased, the findings by the referee to the effect that the scratch upon the neck of deceased occurred during the course of his employment and at. that time the anthrax germ entered his body, causing his death, justified the conclusion that he died as the result of an injury by an accident while acting in the course of his employment, and the claimant was entitled to compensation.</p> <p>21. In such ease where there were findings that on the' afternoon on which deceased last left defendant’s mill he remarked to his son “I got scratched with a sticker,” and also that immediately upon his arrival home he told his wife that one of the stickers in the wool which he was carrying had torn him in the neck, such evidence was hearsay, and standing alone would be insufficient to sustain the findings in favor of the claimant made by the referee.</p>

<p>Appeal, No. 346, Jan. T., 1917, by defendant, from judgment of C. P. No'. 2, Philadelphia Co., Sept. T., 1917, No. 5224, affirming decision of the Workmen’s Compensation Board, allowing claim, in case of Mary Lane v. Horn & Hardart Baking Co.</p> <p>Appeal from Workmen’s Compensation Board. Before Barratt, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court affirmed the decision of the Workmen’s Compensation Board. Defendant appealed.</p> <p>Error assigned was, inter alia, the order of the court.</p>

Appeal, No. 50, Jan. T., 1918, by plaintiff, from judgment of C. P. Philadelphia Co., Dec. T., 1917, No. 788, dismissing appeal from Workmen’s Compensation Board sustaining findings of fact by referee in case of Myrtle Messinger v, Lehigh Valley Railroad Co. Appeál from Workmen’s Compensation Board. Before Barratt, J/ The facts appear by the opinion of the Supreme Court. The lower court dismissed the appeal from the Workmen’s Compensation Board. Plaintiff appealed.

<p>Appeal, No. 63, Jan. T., 1918, by claimant, upon judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1917, No. 1996, quashing appeal from Workmen’s Compensation Board in case of Elizabeth Mooney v. Lehigh Valley Railroad Co.</p> <p>Appeal from Workmen’s Compensation Board. Before Audenried, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The lower court quashed the appeal from the Workmen’s Compensation Board. Claimant appealed.</p> <p>Error assigned, among others, was in quashing the appeal.</p>

<p>Negligence — Automobiles—Street railway car — Head-on collision —Injury to motorman — Automobile passing over bridge — Gloud of smoke — Obstructed, view — Ghaufeur’s failure to stop — Contributory negligence — Case for jury.</p> <p>Where in an action by the motorman of a street car against the owner of a motor truck to recover for personal injuries sustained by plaintiff in a head-on collision with defendant’s truck, it appeared that the truck was being driven eastward on the eastbound car track which passed over a bridge across railroad tracks; that in order to permit a ear to pass it the truck driver turned to the left onto the westbound track although there was sufficient space between the eastbound track and the curb; that just as the eastbound car passed the truck a cloud of smoke was thrown over the tracks by a locomotive passing under the bridge; that the smoke completely concealed from the view of defendant’s chauffeur the approach of the westbound car on which plaintiff was motorman, but the truck continued along the westbound track for nearly seventy feet and just as it emerged from the smoke-cloud, collided with plaintiff’s car, after making a quick attempt to turn to the right when within ten feet of the car, the questions whether defendant’s chauffeur was negligent in turning into the westbound track and in traveling eastwardly with his view obstructed by smoke, and also whether plaintiff was negligent in not avoiding the collision, were for the jury and a recovery by the plaintiff was sustained.</p>

<p>Appeal, No. 364, Jam T., 1917, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1915, No. 1227, on verdict for plaintiff in case of John M. Milligan v. Philadelphia & Reading Railway Company.</p> <p>Trespass for personal injuries. Before Ferguson, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $9,940 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Negligence — Railroads — Pedestrian — Grade crossing — “Stop, looh and listen” — Sudden danger — lDeath—Contributory negligence — Case for jury.</p> <p>In an action against a railroad company to recover for death of plaintiff’s husband resulting from his being struck at a grade crossing, the question of the contributory negligence of deceased was for the jury and a verdict and judgment for the plaintiff will be sustained where it appears that as deceased was walking eastward along a street which crossed defendant’s double track line, for the purpose of boarding a street car standing on the far side of the crossing, he stopped and looked in- both directions; that he stopped, looked and listened a second time within four feet of the southbound (near) track; that a long freight train was then being • drawn by four engines up a heavy grade at from two to five miles per hour and was at a point 200 feet distant; that deceased then proceeded to cross and when between the north- and southbound tracks hesitated an instant and then continued across, and when on the far rail of the northbound track was struck by the engine of a train which had come around a sharp curve 490 feet distant without sounding a whistle or other warning of its. approach; and it appeared that there was no watchman at the crossing to give warning of the approach of the train.</p>

<p>Appeal, No. 374, Jan. T., 1917, by plaintiffs, from order of C. P. No. 2, Philadelphia Co., Dec. T., 1917, No. 219, dissolving attachment in case of Henry Mindlin and Louis Eosenman, Copartners, trading as Mindlin and Eosenman, v. Saxony Spinning Company, Defendant, and William H. Lorimer Sons Company, Garnishee.</p> <p>Foreign attachment in assumpsit. Eule by garnishee to show cause of action. Before Wessbl, J.</p> <p>The facts appear in the opinion of the Supreme Court.</p> <p>The court dissolved the attachment. Plaintiffs appealed.</p> <p>Error assigned, inter alia, was the order of the court.</p>

<p>Negligence — Railroads — Contributory negligence — Passenger alighting from train — Duties of brakeman — Proximate cause— Court and, jury.</p> <p>1. It is the duty of a common carrier of passengers to exercise the highest practical degree of care and to afford them a safe means of ingress and egress to and from the car or other vehicle of transportation.</p> <p>2. A railroad company is liable for the negligent acts of employees while assisting passengers to and from its cars.</p> <p>3. In an action of trespass by a husband and wife to recover for personal injuries to the wife, it appeared that plaintiffs took passage on one of defendant’s excursion trains to go to a certain park with a large party for an annual picnic. Where the trains stopped at the park there was a gravel or cinder walk used as a platform, which was at least three feet below the bottom step of passenger cars; making’ a step or jump-down of that distance in alighting. The evidence for plaintiffs was to the effect that the train was filled with passengers and as it stopped the brakeman at the rear of the car in which they were riding called “This way out”; and that the husband was the first passenger to go out the rear door and off the car; and that he, seeing a brakeman there to assist the ladies, went in search of a table and benches for the picnic dinner; that the wife coming out after several other passengers, walked down the car steps and saw a brakeman standing on the walk, who with his left hand was assisting lady passengers from said ear down to the walk and with his right hand was performing a like service for ladies alighting from the next car; that, as he took her left hand, she released her hold from the hand rail, and, just as her foot was leaving the bottom step, when she was committed to the act of alighting, he suddenly and without warning jerked his hand away, causing her to fall to the ground and strike her knee upon the rail of an adjoining track, inflicting the injuries complained of. Held, that the questions of defendant’s negligence and plaintiff’s contributory negligence were properly left to the jury and judgments on verdicts for the plaintiffs were sustained.</p> <p>4. Where the real cause of the accident, as claimed by plaintiffs and found by the jury, was. the act of the brakeman in suddenly withdrawing his hand at the critical moment, it cannot be said as a matter of law that the wife’s seeming want of care, in not looking out for her own safety, contributed to the accident.</p> <p>5. As a brakeman was present to help, it cannot be affirmed as a .legal conclusion that the husband was negligent in failing to wait and assist his wife to alight.</p>

<p>Appeal, No. 73, Jan. T., 1918, by John G. Hoffman, from decree of O. P. No. 1, Philadelphia Co., Sept. T., 1917, No. 4557, overruling demurrer and awarding an injunction on bill in equity in case of Samuel Englander, Executor of Estate of Matilda DeWitt, deceased, v. Charles Osborne, and John G. Hoffman, Hoffman, DeWitt & McDonough Co., Lydia Hoffman, James Gates, W. Aden, P. Carton, Penna. Co. for Insurance on Lives, Etc., Executor of Estate of Manuel DeWitt, deceased.</p> <p>Bill in equity to. enjoin the declaration of a dividend on the common stock of a corporation. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The court below overruled a demurrer to the bill and entered a decree enjoining the declaration of the dividend. John G. Hoffman, defendant, appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Statutes — Construction—General act — Inconsistency with earlier act — Implied repeal.</p> <p>1. When a statute establishing a general system for government is silent as to the repeal of former statutes relating to the same subject, an intention to repeal the earlier statutes arises by implication.</p> <p>Corporations — Stockholders—Refusal of right to inspect books— Action for penalty — Acts of April 7, 1849, Section 24, P. L. 668; April 11, 1869, P. L. 71; April 29, 1874, P• L. 78 — Demurrer— Judgment for defendant.</p> <p>2. A necessary result of Section. 46 of the General Corporation Act of April 29, 1874, P. L. 73, ■which repealed the Act of April 7, 1849, P. L. 563, and the supplements thereto, “so far as they provide for the creation of corporations for any of the purposes provided” by the Act of 1874; was to confine the Act of 1849, in its operation to companies already formed thereunder and engaged in some branch of manufacture for which no provision was made in the general corporation act of 1874.</p> <p>3. As tha Acts of 1849 and 1874 both make provision for the inspection of books and records of corporations by the stockholders thereof, it is evident that both were not intended to operate in the case of corporations chartered under the Act of 1874, and the provisions of the Act of 1849, since the passage of the Act of 1874, can apply only to corporations chartered under the Act of 1849.</p> <p>4. In an action of assumpsit brought by a stockholder of a corporation organized under the Act of 1874, to recover the penalty provided by the Act of 1849 for the refusal of a corporation to allow a stockholder to inspect its books; held, that the penalty provided by the Act of-1849 could be recovered only against corporations organized thereunder; and a judgment for defendant on demurrer to plaintiff’s statement of claim was affirmed.</p>

<p>Appeal, No. 85, Jan. T., 1917, by defendants, from judgment of C. P. No. 4, Philadelphia Co., June T., 1916, No. 1625, on verdict for plaintiff, in case of Robert A. Maynard v. William Barrett, President of Adams Express Company, a joint stock association.'</p> <p>Trespass to recover damages for personal injuries. Before Audenried, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment non obstante veredicto.</p>

<p>Negligence — Death—Substitution of administratrix as plaintiff —Abatement—Laches—Waiver—Presumption—Trial eight years after issue — Act of April 15,1851, P. L. 669, Sec. 18■ — Construction —Practice, C. P. — Trial—Evidence.</p> <p>1. Where an action is brought for personal injuries and before the trial of the case the plaintiff dies, his administratrix may be substituted as plaintiff and such substitution may take place more than one year after the death of the decedent. Section 18 of the Act of April 15, 1851, P. L. 669, authorizing the substitution' does not fix the time in which substitution shall be made and the court cannot invade the province of the legislature and fix a time by construction.</p> <p>2. The usual and proper practice, where unreasonable delay in prosecution or laches is urged as the ground for abatement of a suit, is a motion or rule taken by defendant and not objection to testimony on the trial of the cause. The defendant can and may waive the default- or laches and go to trial on the merits and where he takes no steps to' abate the action until the plaintiff has incurred the expense of the preparation for the trial, he cannot at the trial defeat the plaintiff’s right to recover by objection to evidence of her authority to bring suit.</p> <p>3. In an action to recover damages for personal, injuries, it appeared that plaintiff brought suit on March 26, 1907, for injuries sustained in July, 1906; that the statement was filed and a rule to plead was issued on June 3, 1907, that defendant pleaded “not guilty” on June 17, 1907; that plaintiff died on November 2, 1907,</p> <p>. and that his death was suggested in 1915, and on June 5, 1916, his death was again suggested of record and his administratrix was substituted as plaintiff; that at the trial of the ease, defendant objected to the admission in evidence of' the letters of administration on the theory that the plaintiff’s right to be substituted was barred because not asserted within one year after the decedent’s death. Held, the letters were properly admitted in evidence.</p> <p>Negligence — Street railways■ — Passenger boarding car — Premcoture starting — Death —- Conflicting evidence— Case for fury — Charge — Reference to statement of claim not offered in evidence— Erroneous instructions — New trial.</p> <p>4. In an action against á street railway company to recover for personal injuries sustained by. plaintiff’s decedent while attempting to board one of- defendant’s cars, the 'case is for the jury where the testimony of the only two eyewitnesses to the occurrence was in direct conflict as to whether the car was in motion or still at the time of the accident, and plaintiff’s witness was contradicted by signed statements made by deceased and his witness that the car was in motion.</p> <p>5. Where defendant introduced a written statement by deceased under oath to the effect that the car was in motion when he attempted to board it, the trial judge erred in charging that the plaintiff “did ten months and thirteen days afterwards swear to another paper which he signed by making his mark, that paper being the statement of claim in this case, in which he swore that the car was standing still,” where the statement of claim had not been offered in evidence, and where the plaintiff had not referred thereto as evidence contradicting the signed admission of the deceased.</p> <p>6. Where there was no evidence that the affidavit and signature of the deceased to the paper offered by the defendant were procured by fraud, coercion or undue influence, the court committed reversible error in refusing to so charge on request of the defendant.</p>

<p>Appeal, No. 87, Jan. T., 1917, by defendant, from judgment of C. P. Lackawanna Co,, Oct. T., 1910, No. 505, on verdict for plaintiff, in case of Jacob Suravitz v. Prudential Insurance Company of America.</p> <p>Assumpsit on a policy of life insurance. Before Maxwell, F. J., specially presiding.</p> <p>The facts appear in the opinion of the Supreme Court and in Suravitz v. Prudential Insurance Company, 244 Pa. 582.</p> <p>Verdict for plaintiff for $2,040 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing a new trial, answers to points, instructions to the jury and rulings on evidence.</p>

<p>Appeal, No. 43, Jan. T., 1918, by relator, from judgment of C. P. Lackawanna Co., Jan. T., 1918, No. 320, refusing judgment of ouster in quo igarranto proceedings in case of Commonwealth ex rel. George W. Maxey, District Attorney, y. Joseph Zalewski.</p> <p>Suggestion for writ of quo warranto-. Before Edwards, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The respondent demurred to suggestion for the writ. The court entered judgment for the respondent on the demurrer. Belator appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 8, Jan. T., 1918, by defendant, from judgment of C. P. Berks Co., Oct. T., 1916, No. 28, on verdict for plaintiff, in case .of S. Kathryn Knecht v. Elmer Knecht.</p> <p>Assumpsit for money had and received to plaintiff’s use. Before Wagner, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Yerdict for plaintiff for $1,747.30 and judgment thereon. ■ Defendant appealed.</p> <p>Errors assigned were in refusing to direct a verdict for defendant and in refusing to enter judgment for defendant n. o. v., answers to points and instructions to the jury-</p>

<p>Appeal, No. 352, Jan. T., 1917, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1915, No. 1058, on verdict for defendants, in case of Oscar D. Loeb v. Louis Davidson and Charles Goldman.</p> <p>Rule to open judgment entered upon a bond.</p> <p>From the record it appeared that.the court opened the judgment and an issue was framed to determine whether or not plaintiff was entitled to recover the amount which he had paid on account of the purchase-price of certain properties which defendants had agreed to. sell him, and which he had refused to accept.</p> <p>The case was tried before Ferguson, J.</p> <p>Other facts appear in. the opinion of the Supreme Court.</p> <p>Verdict for defendants and judgment thereon. Plaintiff appealed.</p> <p>Errors assigned were instructions to the jury and rulings on evidence.</p>

<p>Negligence — Street railways — Pedestrian—Stepping in front of approaching car — Danger—Speed of car — Conflicting evidence— Contributory negligence — Case for jury.</p> <p>1. While a person has no right to pnt himself in a position of danger and rely entirely upon the assumption, that another who controls the source oí such danger will see that he is protected, yet everyone who exercises due care, according to the circumstances, has an abstract right to rely on the assumption that others will do likewise and use ordinary care to protect him and his property from injury.</p> <p>2. A pedestrian is not negligent in attempting to cross a street at a place set apart for that purpose merely because a car is approaching at a distance, although in plain sight. In such case the rights of the pedestrian and the street railway company are mutual and each is bound to exercise the care required by the circumstances.</p> <p>3. The danger a pedestrian is bound to foresee and avoid is that of being injured by cars operated in a proper and legal manner.</p> <p>4. In an action against a street railway company to recover for injuries to a pedestrian at a crossing by being struck by one of defendant’s cars, the case is for the jury and a verdict for the plaintiff will be sustained where it appeared that when plaintiff started to cross the street he saw the car coming on the near track 2Y5 feet distant, and apparently slowing down; that he proceeded to cross and when on the near rail he saw the car two lengths away and still thought it was slowing down; that when he had gotten almost across he was struck, and was picked up 165 feet away, having been carried that distance on the fender of the ear; although defendant’s evidence was that the collision occurred at the point where plaintiff was picked up on the opposite side of the crossing, and that the car stopped within its length after the collision.</p>

<p>Appeal, No. 375, Jan. T., 1917, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1916, No. 2395, on verdict for plaintiff, in case of Thomas J. MacEvoy and Hugo Ristelhueber, copartners trading as Thomas J. MacEvoy, v. James D. Kerr.</p> <p>Assumpsit on a contract of suretyship. Before Shoe MAKER, J.</p> <p>The opinion of the Supreme Court states the facts. Verdict for plaintiff for $1,626.13 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were answers to points and in refusing to direct a verdict for defendant.</p>

Appeal, No. 377, Jan. T., 1917, by Thos. S. Shoemaker, from decree of O. C. Philadelphia Co., April T., 1913, No. 445, dismissing exceptions to adjudication, in Estate of Mary P. Plumly, deceased. Exceptions to adjudication. Before Dallett, P. J. The opinion of the Supreme Court states the facts. The court dismissed the exceptions in an opinion by Gummey, J. Errors assigned were dismissal of the exceptions.

<p>Appeal, No. 379, Jan. T,, 1917, by defendant, from judgment of C. P. No. 3, Phila-' delphia Co., Dec. T., 1905, No. 906, on verdict for plaintiff, in case of Ella M. Fay, Administratrix of the Estate of Edward Fay,' Deceased, v. James S. Moore.</p> <p>Assumpsit for balance alleged to be due plaintiff’s decedent under a building contract. Before McMichael, P. J.</p> <p>The opinion of the Supreme Court states the facts,</p> <p>Yerdict for plaintiff for $1,793.94 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing to direct a judgment for-defendant, refusing to enter judgment n. o. v., rulings on évidence and instructions to the jury.</p>

<p>Appeal, Nos. 362 and 363, Jan. T., 1917, by defendant, from judgments of C. P. No. 2, Philadelphia Co., March T., 1914, No. 2123, on verdicts for plaintiffs in case of Zortman Stidfole, by his next friend and mother, Nettie Stidfole, and Nettie Stidfole in her own, right, v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for presonal injuries. Before Barratt, P. J.</p> <p>From the record it appeared that the plaintiff while being pursued and struck at by defendant’s brakeman, was thrown by,the bumping of the car that he was on, down upon the rail, so that his left leg was run over and so injured that amputation became necessary.</p> <p>The facts further appear by the opinion of the Supreme Court.</p> <p>Yerdict for plaintiff for $9,750.00 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and Ins truetions to the jury, the refusal of the court to direct a verdict for defendant and to enter judgment for defendant n. o. v.</p>

<p>Negligence — Building erection — Freshly placed stone — Stone carver worhing beloiv — Fall of stone — Oontributory negligence— Judgment for defendant n. o. v.</p> <p>In an action to recover for the death of plaintiffs husband, a stone carver, occasioned by the fall of a large stone under which he was working, deceased was guilty of contributory negligence as a matter of law and judgment will be entered for defendant non obstante veredicto, where it appeared that defendants were engaged in setting the stones on a building and that deceased was the employee of the company doing the carving work; that immediately after’the placing of the stone in question, plaintiff started to carve a stone under it and others which, had been recently placed, although, according to plaintiff’s own witness, he had been warned not to work there until the mortar should dry; and there was no direct evidence as to the cause of the fall of the stone.</p>

Appeal, No. 76, Jan. T., 1918, by Samuel Sternberger, from decree of C. P. No. 3, Philadelphia Co., Dec. T., 1917, No. 3329, refusing order upon receivers for the payment of rent in case of Joseph J. Lifter, trading as Lifter Ice Cream Company, v. The Earle Company. Bill in equity for the appointment of a receiver. Before McMichael, P. J. Petition for order upon receivers of a corporation to pay rent of premises occupied by the receiver.

<p>Practice, Supreme Court — Appeals—Verdict's—-JSxcessive verdict —Consideration iy Supreme Court.</p> <p>Where on appeal to the Supreme Court from a judgment on a verdict for plaintiff, the only assignment of error pressed by the appellant complains that the verdict was excessive, the judgment will be affirmed, as the question of the reasonableness of the verdict was for the court below .to determine under all the evidence, on motion for a new trial.</p>

<p>Practice, Supreme Court — Charge to the jury — Waiver of errors.</p> <p>In an action of assumpsit for board alleged to have been furnished to plaintiff’s mother-in-law, under an express contract, where the issues were entirely of fact, the circumstance that the trial judge unduly commented on the probabilities in favor of the plaintiff was not reversible error, when at the conclusion of his charge to the jury, he inquired of counsel for defendant whether there' was anything in the court’s statement of facts or instructions concerning the law that he objected to specifically and counsel for defendant replied: “Not at this time.”</p>

<p>Appeal, No. 298, Jan. T., 1917, by plaintiff, from decree of C. P. No. 4, Philadelphia Co., June T., 1917, No. 3335, dismissing bill in equity for an injunction, in case of Walter R. Taylor, Appellant, v. City of Philadelphia, Thomas B. Smith, Mayor of the City of Philadelphia; George E. Datesman, Director Department of Public Works of the City of Philadelphia; Board of Trustees of the Free Library of Philadelphia, naming them; John Ashhurst, Librarian of the Free Library of Philadelphia; Horace Trumbauer, Architect, and John P. Gill and Kernode F. Gill, trading as John Gill & Sons, Contractors, Appellees.</p> <p>Bill in equity for injunction. Before Audenried, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The defendant demurred to the bill. The court sustained the demurrer and dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Contracts — Sales—Breach—Measure of damages — Special damage — Loss of profits — Idleness of defendant’s mill — Notice—Knowledge — Contract price — Market value — Affidavit of defense — Insufficient averments.</p> <p>1. Tbe general rule governing tbe measure of damages for breach of contract is that they are such as may 'be fairly and reasonably considered as naturally arising from the breach according to the usual course of business and under circumstances contemplated by the parties at the time the contract was entered into; but damages resulting from particular circumstances connected with the transaction cannot be recovered unless such circumstances were known to the defaulting party to the contract and were such as may be supposed to have entered into the contemplation of the parties.</p> <p>2. The measure of damages to a purchaser for the failure of the vendor, to deliver goods according to contract is the difference between the contract price and the market value of the article at the time and place of delivery.</p> <p>3. In an action on a book account for goods sold and delivered where defendant attached to its affidavit of defense copies of writings under which it alleged the goods were delivered and which it contended were the contracts in the case upon which suit should have been brought, but where it appeared that the writings were not orders but simply confirmations of sales, sent out by plaintiff in accordance with the usual business custom to acknowledge orders received, whether verbally or in writing, and where there was nothing in the affidavit to show whether the orders which had been given were in writing or merely verbal, the court properly entered judgment for want of a sufficient affidavit of defense for the amount claimed, less the excess over the contract price defendant claimed it was obliged to pay to procure in the market goods in place of those not delivered.</p> <p>4. In such case a counter-claim for damages resulting from the closing of the defendant’s mill because of plaintiff’s failure to deliver other materials ordered, was properly disallowed where there were no averments that plaintiff knew that his failure to deliver the materials would result in the stoppage of defendant’s mill, or that defendant was unable to procure other goods in the open market, or of anything to indicate special circumstances from which it could be inferred that the parties contemplated anything beyond tbe usual measure of damages resulting from breach of contract to deliver tbe goods.</p>

<p>Eminent domain — Municipalities—Measure of damages — Damages for delay — Reasonableness of demand — Evidence—Charge— Burden of proof.</p> <p>In proceedings to ascertain damages caused by tbe taking of lands by a municipality, the burden is upon the municipality of showing facts excusing its delay in making payment, and where in such case there was no evidence to show that the plaintiff had stubbornly refused to come to an agreement with the city as to what it should pay him, or that he was responsible in any way for the delay in paying him, and it did not appear on the trial which party had appealed from the award of the viewers, he is entitled to compensation for the delay; and where the court failed to so charge ¿nd left to the jury the question as to whether the plaintiff had unjustifiably caused the delay, it committed reversible error which was not cured by other instructions that were correct.</p>

<p>, Appeal, No. 196, Jan. T., 1917, from decree of O. C. Luzerne Co., No. 241 of 1915, directing administrator to apply for order of court to sell decedent’s real estate in the estate of Rosalie Maslowski, Deceased.</p> <p>Petition for order directing an administrator to apply for leave to sell the decedent’s real estate for the payment of debts. Before Feeas, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court granted the prayer of the petitioner. Alexander Maslowski appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 67, Jan. T., 1918, by plaintiff, from judgment- of C. P. Luzerne Co., March T., 1916, No. 667, on verdict for defendant in case of Cbid Keller v. Blanche Lawson.</p> <p>Issue devisavit vel non. Before Woodward, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The jury found the will invalid for want of testamentary capacity on the part of deceased. Chid Keller appealed.</p> <p>Error assigned, among others, was in refusing plaintiff’s motion for judgment non obstante veredicto.</p>

<p>Criminal law — Murder of first degree — Killing in perpetration of robbery — ■Forcible taking in presence of, but not from person of victim — Charge.</p> <p>1. While robbery is the felonious and forcible taking from the person of another of goods or money to any value by violence or putting in fear, the offense is complete if they are taken in the presence of, although not from the person of the owner, by putting in fear.</p> <p>2. A conviction of murder of the first degree will be sustained where it appears that the dead body of a woman was found in a beaten condition at her home late at night; that her bureau drawer had been pried open and $70 taken therefrom; that the bedroom showed evidence of a violent struggle; that on the evening of the murder defendant was arrested and admitted he had committed the crime; that defendant’s clothes were spotted with blood and he bore numerous scratch marks; that just before his arrest he had displayed a roll of bills and stated that he had $50, although he was almost without funds just before the commission of the crime.</p>

<p>Courts — Jurisdiction, C. P. — Corporations—Process—Service— County where corporate franchise is exercised — Principal office in another county — Special appearance — Plea in abatement — Trial on merits — Acts of June 18, 1886, Sec. 1¡.2, P. L. 568; March 21,18^2, Sec. 8, P. L. 145, and March 17, 1856, P. L. 888.</p> <p>1. The common law rule that a corporation could be sued only-in the territorial jurisdiction where it had its legal domicile and chief plkce of business, has been enlarged by the Acts of June 13, 1836, Sec. 42, P. L. 568; March 21, 1842, See. 8, P. L. 145, and March It, 1856; P. L. 388, so that a corporation of this State now exists in any county where it has property and exercises its corporate franchise, and, being lawfully served, must respond to any transitory action brought there against it.</p> <p>2. In an action against a railroad company to recover for personal injuries, service was properly had upon the defendant in a county where part of its system was situated, although not the county where the injury occurred or where the company’s principal office was located; in such case where defendant entered a special appearance and pleaded in abatement to the jurisdiction of the court, the plea was properly overruled, and the effect of the defendant thereafter going to trial on the merits not considered.</p> <p>Damages — Earning capacity — Professional education — Injury before beginning to practice — Graduate forester — Evidence — Competency.</p> <p>3. In a negligence suit lessened capacity to earn in any actually available occupation may be shown by proper and satisfactory proof.</p> <p>4. In an action to recover for injuries resulting from defendant’s negligence, plaintiff, who had just completed a four-year course in forestry a year prior to the accident, but had not taken up that work, was properly permitted to offer evidence as to the minimum salary of a graduate forester, in connection with evidence that the accident disabled him from pursuing that occupation, as bearing upon loss of earning power.</p> <p>Practice, Supreme Court — New trial — Refusal — Absence of manifest abuse of discretion.</p> <p>5. The refusal of a new trial is a matter within the discretion of the trial court and will not be interfered with except to correct a manifest abuse of discretion.</p>

<p>Appeal, No. 267, Jan. T., 1917, by defendants, from judgment of C. P. Centre County, September T., 1916, No. 182, awarding writ of peremptory mandamus, in case of Commonwealth of Pennsylvania ex rel. Francis Shunk Brown, Attorney General, v. Daniel A. Grove, William H. Noll, Jr., and Isaac Miller, Commissioners of Centre County.</p> <p>Mandamus.</p> <p>The facts appear from the following opinion by Quigley, P. J.:</p> <p>The Commonwealth of Pennsylvania prays that a peremptory mandamus may issue commanding the commissioners of Centre County to repair two certain bridges along what is known as Route 56 of the system of State highways as defined and described in the Act of May 31, 1911, said bridges being immediately west of the village of Lemont, Centre County, one of which is over Slab Cabin branch of Spring creek, and the other over the main branch of Spring creek.</p> <p>It is admitted that these two bridges are in bad and unsafe condition and repair, and are unsafe and insufficient to accommodate the public with the usual means of travel, and that said bridges are necessary for the safe and convenient travel of the public in, along and over said highway.</p> <p>It is also admitted that the part of said Route 56 between Lemont and State College is laid out over what was formerly known as the Agricultural College and Junction Turnpike Road, and that the same was duly condemned by proceedings in the Quarter Sessions of this county entered to No. 2 December Sessions, 1907, the final decree of condemnation having been entered January 27, 1908, and the damages assessed thereunder having been paid by the county.</p> <p>It is also admitted that at the time of the passage of the Act of May 31, 1911, aforesaid, no duty or responsibility rested upon the supervisors of College Township to build, repair or maintain the said bridges or either of them.</p> <p>The question before us is whether the burden of repairing and putting in good order and condition these two bridges is upon the Board of Commissioners of Centre County or upon the Highway Department of the Commonwealth of Pennsylvania.</p> <p>As we view it the recent case of Commonwealth of Pennsylvania ex rel. v. Bird, appellant, 253 Pa. 364, controls this case.</p> <p>Judge Maxwell there held that the burden of building and maintaining county bridges that were located upon the State highways under the Act of May 31, 1911, was upon the county.</p> <p>The defendants urge that the difference in the nature of the bridges raises a distinction; that the bridge involved in the Bird case was established as a county bridge by proceedings under the 35th Section of the Act of June 13, 1836, while the bridges in question were not so established but reverted to' the county upon condemnation of the turnpike and because of the fact that they were not formally declared county bridges under the Act of 1836 ingeniously argue that there is a clear distinction. In effect they argue that a county bridge within the meaning of the act is one that is created by due process of law and requires the joint action and approval of three different bodies, viz: the grand jury, the Court of Quarter Sessions, and the county commissioners, and unless so created they should not be treated as county bridges.</p> <p>By the Act of April 20, 1905, P. L. 237; April 25, 1907, P. L. 104, and March 15, 1911, P. L. 21, the repair and maintenance of the road, including these bridges between Lemont and State College, formerly the Agricultural College and Junction Turnpike road, rested at the passage and approval of the Sproul Act of May 31,1911, upon the County of Centre, and this being the case the bridges in question were to all intents and purposes county bridges.</p> <p>If this is a proper conclusion, and we think it is, the duty of the county to maintain these bridges is clear under the ruling in Commonwealth v. Bird (supra), part of which we quote as follows: “The duty to maintain a bridge forming part of a State highway built under the Act of May 31, 1911 (P. L. 468), rests upon the county and not «the Commonwealth where the duty to maintain it rested upon the county at the time of the passage of the act, and mandamus will properly issue against the county commissioners to compel them to construct and maintain a suitable bridge.”</p> <p>The lower court awarded a writ of peremptory mandamus directing defendants to immediately repair the bridges in question and put the same in good order and condition, suitable and safe for public travel. Defendants appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 51, Oct. T., 1918, from judgment of O. & T. Beaver Co., June Sessions, 1917, No. 8, on verdict of guilty of voluntary manslaughter in case of Commonwealth v. Emil Balanzo.</p> <p>Indictment for murder. Before Corbet, P. J,</p> <p>From the record it appeared that defendant, Emil Balanzo, in company with four other men, was walking along a public street in the Borough of Midland, Beaver County, about midnight on May 12, 1917. They met Michael T. Ford and Edward McKay, two police officers of the said borough, on duty. Ford wore the full uniform of a police officer, but McKay was in plain clothes.</p> <p>The prisoner and the men in company with him, on the approach of the officers, started to scatter. The officers then commanded defendant and the others to stop and to submit to a search. The men in company with the defendant stopped and were searched, but the prisoner attempted to get away.</p> <p>Ford followed defendant and was in the act of turning him around preparatory to making a search for concealed weapons when defendant drew a revolver and fired five shots at him, one of which passed through his chest, one through his abdomen, and one through the ball of his foot. Ford died about nine hours later in a hospital.</p> <p>On the trial no dying declaration of the deceased was offered in evidence, the only evidence as to what he said being that while in the hospital he made certain incoherent utterances.</p> <p>The trial judge sustained an objection to the question put to one of the Commonwealth’s witnesses, on cross-examination, as to what statement the doctors made to the deceased in the hospital (3, 4, 5, and 6).</p> <p>On the trial the district attorney exhibited deceased’s coat to the jury stating “this is the place where the bullet came out” (indicating) (14). Later during the trial he stated that the story of one of defendant’s witnesses was “cooked up” (26), and at another time that “defendant was telling his story the way his attorneys wanted him to tell it” (27), the court directed the jury to disregard the first and last mentioned utterances and ruled that the reference to the testimony of defendant’s witness as “cooked up” was not improper, as it was made by the district attorney in addressing the court in reference to what he intended to prove in rebuttal, and no exception to- such ruling was taken at the time.</p> <p>Defendant’s fifth point for charge and the court’s answer thereto were as follows:</p> <p>"There is no evidence in this case that the deceased and his fellow officer had any information or even suspicion that the prisoner had a weapon on his person, and it being admitted that there was no warrant against the prisoner or any of his companions, the attempted search of the prisoner for weapons was an unlawful act upon the part of the deceased and his fellow officer.</p> <p>"Answer. Affirmed. Nevertheless, a mere attempted search without more, would not justify or excuse the killing of the officer. One is not warranted in taking human life to repel or redress a wrong of small magnitude.</p> <p>Defendant’s sixth point for charge and the court’s answer thereto were as follows:</p> <p>"If the prisoner and his companions were walking quietly and peaceably along the public street, the deceased and his fellow officer had no legal right to stop them and search them without a warrant, and in so doing the deceased and his fellow officer were guilty of an unlawful act.</p> <p>"Answer. Affirmed. Nevertheless, so doing, without more, would not justify or excuse the killing of Michael T. Ford.”</p> <p>Defendant’s seventh point for charge and the court’s answer thereto were as follows:</p> <p>"If the jury believed from the evidence that the deceased assaulted the prisoner with his club, and the prisoner’s life was in danger, or he was actually in danger of great bodily harm, or if it so reasonably appeared to him, and the danger, either real or apparent, was so great that it could not be averted, without inflicting serious injury upon the deceased or even taking his life, the prisoner would be excusable under the law in so doing, in order to save his own life or avert great bodily harm.</p> <p>“Answer. Affirmed. But reasonable apprehension of such danger as is referred to in this point, where the apparent danger turns out to be apparent only, and not actual, must have a reasonable basis on which to rest, before the taking of human life would be warranted thereby.”</p> <p>The jury found a verdict of guilty of voluntary manslaughter upon which the maximum sentence was thereafter imposed. Defendant appealed.</p> <p>Errors assigned, among others, were various rulings on evidence (3, 4, 5, and 6), alleged improper remarks by the district attorney (14, 26, and 27), and the charge of the court (32, 33, and 34) and the judgment of sentence.</p>

<p>Appeal, No. 141, Oct. T., 1917, by defendants, from decree of C. P. Allegheny Co., July T., 1915, No. 820, in equity, declaring cancellation of- deed in case of Steve Pusic v. Anna Salak, Mitro' Salak and Mary Pusic.</p> <p>. Bill in equity for cancellation of deed and accounting. Before Carnahan, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court granted the relief prayed for. Defendants áppealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Appeal, No. 92, Jan. T., 1918, by plaintiff, from decree of C. P. Potter Co., Sept. T., 1917, No. 1, in equity, dismissing bill in equity for specific performance in case of Y. & S. Bottle Company v. Mountain tías Company.</p> <p>Bill in equity for specific performance of contract to supply gas and for an injunction. Before Heck, P. J.</p> <p>From the record it appeared that on October 30,1913, plaintiff and defendant entered into an agreement under which the latter agreed to sell and deliver to the former at the price of eight cents per thousand cubic feet, based on an eight-ounce pressure, delivered at the place hereinafter mentioned, for the term of five years, and ten cents per cubic feet based on the same pressure, such quantities of natural gas as required by the party of the second part (plaintiff) to supply its factory with natural gas for fuel, light, heat and other necessary purposes, for the proper and successful operation of said factory, for and during the term of ten years from the date thereof; said gas to be used at the factory of said party in the Village of Roulette, Potter County, Penna.</p> <p>The contract further provided that the plaintiff should furnish the necessary pipes, regulators and meters.</p> <p>The Mountain Gas Company, on December 22, 1913, filed a tariff fixing the price of natural gas to manufacturers in quantities of 100,000 cubic feet daily at ten cents per thousand cubic feet.</p> <p>The defendant, subsequent to January’1,1914, refused to supply gas to the plaintiff for less than the rate required by such tariff. Plaintiff brought this bill in equity to compel the specific performance of its contract of October 30, 1913.</p> <p>The lower court found' that the agreement in question gave, the plaintiff company special privileges forbidden by Section 8, sub-division A and B of the Public Service Act of July 26,1913, P. L. 1374, and that such agreement was rendered inoperative from the time the said act went into effect January 1, 1914, and dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Wills — Beneficiaries—Relinquishment of rights during testatrix’s lifetime — Failure of testatrix to modify will — Testatrix’s declaration that such beneficiary should share in estate — Devisee’s right to share.</p> <p>Where a testatrix by will devised all her property equally to her son arid two daughters and thereafter the son executed a paper relinquishing all his right, title and interest in his mother’s estate, but the testatrix made no modification of the will, although she lived for three years thereafter, and, according to the testimony of one of her daughters (testifying against her own interest) testatrix had declared three weeks before her death “do you think I am going to deprive (the son naming him) of the things that are coming to him? Tie has just as much right to the things as you and (the other daughter, the exceptant),” the court properly refused to give effect to the paper signed by the son, and permitted him to share equally with his sisters in the estate.</p>

<p>Appeals, Nos. 52, 53, 54 and 160, Jan. T., 1917, from decree of O. C. Lycoming Co., March T., 1913, No. 26, dismissing exceptions to auditor’s report in Estate of Harry W. Lentz, Deceased.</p> <p>Appeal from adjudication. Before Whitehead, P. J.</p> <p>The lower court dismissed the’ exceptions to and confirmed the report of the auditor, James B. Krause, Esq. George W. Lentz, Sarah Lentz, Mary J. Lentz; and William P. Beeber and William L. Colt, surviving executors of the last will and testament of J. Artley Beeber, deceased, who was executor of the last will and testament of Harry W. Lentz, deceased, exceptants, appealed.</p> <p>Error assigned, among others, was in dismissing exceptions to the adjudication.</p>

<p>Appeal, No. 16, Jan. T., 1918, by Joseph Wild & Son, from decree of O. C. Lackawanna Co., 1916, No. 3, dismissing exceptions to adjudication in Estate of Moses L. Seidman, Deceased. Also like appeal, No. 15, Jan. T., 1918, by Trorlicht-Duncker Carpet Co.</p> <p>Appeal from adjudication. Before Sando, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court dismissed exceptions to the adjudication. Joseph Wild & Son appealed.</p> <p>Errors assigned, among others, were in dismissing exceptions to the adjudication.</p>

<p>Appeal, No. 145, Jan. T., 1917, by defendant, from judgment of C. P. Crawford Co., May T. 1916, No. 18, on verdict for plaintiff in case of William H. Gasldll v. Pittsburgh Life & Trust Company.</p> <p>Assumpsit brought, after alleged improper eancellation. of life insurance policy, for recovery of premiums paid. Before Reibee, P. J., specially presiding.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $6,815.46 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment n. o. v.</p>

<p>Appeals, Nos. 81 and 82, Jan. T., 1918, by plaintiff and defendant, from judgment of C. P. Crawford Co., Sept. T., 1916, No. 96, on verdict for plaintiff in case of Max Bone and Max Bone, Use of D. E. Kelley, Trustee, v. Detroit National Fire Insurance Company of Detroit, Michigan.</p> <p>Assumpsit on a fire insurance policy. Before Prather, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for plaintiff for $1,697.25 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were the charge of the court, various rulings on evidence and in refusing defendant’s motion for judgment non obstante veredicto.</p>

<p>Wills — Bequests of business — Bights and liabilities of legatees —0 onstruction — Intention.</p> <p>A testatrix having five sons and two daughters directed that three sons (naming them), continue the manufacturing business owned by the testatrix in the factory also owned by her; that they should pay rent therefor to the other children as long as they continued to run the business; that they should also pay the debts of the business at the time of the death of the testatrix; and that they should divide the profits which they should make between them after the payment of said rental. Testatrix further directed that when the sons should cease to continue the business, the property should be sold and the proceeds paid into the estate. One of the sons who was executor under the will acquired the interests of the other two. He bought the adjoining properties in which he installed machinery and which he used in connection with the business. The daughters petitioned for a citation to compel the sale of the property alleging that the son was a trustee of the business and that he was mingling it with his own, in violation of this trust and prayed for termination of the business and a sale of the property. Held, (1) the son was not a trustee, but a tenant; (2) the daughters had no interest in the business, but simply the right to require that when such son should cease to run the business he should pay to the estate the value of the property as it was at the death of the testatrix, and (3) the petition was properly dismissed.</p>

<p>Beal estate — Charges upon land — Assignee for creditors — Public sale — Purchase by person for whom charged — Payment of bid— Claim for deduction — Refusal. :</p> <p>1. A sum charged by law upon real estate cannot be divested by any act of the devisee of the land nor by his assignee for creditors, even under an order of court authorizing the sale of the property.</p> <p>2. Where a testator devised a farm to his son and charged thereon $3,000 during the natural lifetime of his wife and provided “interest upon said sum at 5 per cent, shall be paid to her semiannually by the son......” and thereafter the farm was sold by the assignees of the son “subject to the above charge in favor of Sarah E. Lamaster” and the wife bought the farm and agreed to pay the purchase-money “according to the conditions of the sale and in all respects to keep and comply with the same,” the wife was not entitled to deduct from the amount of her bid the amount of the charge- in her favor, as the charge was not for the payment of that sum, but only to secure to her the payment of the interest on the sum charged.</p>

<p>Lunatics — Nonresident lunatics — Property in this State — Transfer — Act of April IS, 1868, P. L. 9h — Statutes—Construction.</p> <p>1. Powers given to public functionaries or others for public purposes, or the public benefit, are always to be exercised when the occasion arises.</p> <p>2. Whenever a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized when the case arises .and its exercise is duly applied for by a party interested and having the right to’make the application; the exercise depends not on the discretion of the court or judges, but upon proof of the particular case out of which the power arises.</p> <p>3. A nonresident lunatic does not become a ward in chancery in Pennsylvania because he has property here. The courts of Pennsylvania can not adjudge a nonresident to be a lunatic and the powers of the courts of Pennsylvania go no further than conserving the property of such lunatic as lies within the State.</p> <p>4. Where the guardian of a nonresident lunatic duly declared such by the courts of his state, makes application to the Court of Common Pleas under the Act of April 13, 1868, P. L. 94, for an order upon the committee in Pennsylvania in charge of such lunatic’s property to transfer the same to the guardian, the court has no discretion to refuse the application where the petitioner has complied with every requirement of the act. 5</p>

<p>Appeal, No. 305, Jan. T., 1917, by defendant, from judgment of C. P. Blair Co., Oct. T., 1917, No. 95, on verdict for plaintiff, in case of E. J. Kennedy and J. S. Ginter, Cashier Farmers’ and Merchants’ National Bank, Tyrone, Pa,, now for use of E. J. Kennedy, v. E. W. Rothrock Co., Inc., a corporation chartered under the laws of the State of Delaware.</p> <p>Assumpsit on promissory notes and written contract. Before Baldrige, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $4,712.90 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were in refusing defendant’s motion in arrest of judgment, instructions to the jury, rulings on evidence and .answers to points.</p>

<p>Appeal, No. 9, Jan. T., 1918, by plaintiff, from judgment of C. P. Clearfield Co., Sept. T., 1917, No. 267, on verdict for defendants in case of Corona Coal &' Coke Company, a Pennsylvania Corporation, v. Margaret A. Dickinson, Mary G. Dickinson, W. E. Dickinson, Julia Shugart, Anna N. Dickinson, Bernice Dickinson, S. B. Isenberg, Agent .for William- R. Dickinson Heirs, and Ira C: McCloskey, Bailiff.</p> <p>Replevin for property seized- by landlord’s warrant. Before Bell, P. J.</p> <p>The opinion of the Supreme Court states'-the case.</p> <p>Verdict for the defendants for $4,662.63 and judgment thereon.-</p> <p>Érrors assigned were certain rulings on evidence, the action of the court in directing a verdict for the defendants, and in refusing binding instructions in favor of the plaintiff.</p>

<p>- Criminal law — Murder—Charge—Effect of reputation evidence —Self-defense—Measure of proof — Scope of cross-examination — Discretion of court — Loss of indictment — Substitution of copy— Substitution in absence of defendant — Interpreter—Duty to swear ■ — Correctness of interpretation — •New trial.</p> <p>1. On the trial of an indictment for murder, it was not error to charge that character evidence was not offered on the theory that a man of good -reputation could not commit a crime, for' frequently such a man has become involved in crimes which belie his reputation, where the trial judge explained fully the difference between character and' reputation, and further -charged that evidence of reputation for good character is substantive evidence and is to be considered with the other evidence in the case, and in some instances may create a reasonable doubt of defendant’s guilt, and affirms without qualification points presented by the defendant on this branch of the case, which correctly stated the law on the subject.</p> <p>2. In charging the jury on the matter of self-defense, where defendant admitted that he shot and killed deceased, but claimed it was done in self-defense, it was not reversible error for the trial judge to say that such defense should be established by “satisfactory proof,” where the remaining portion of the charge showed clearly that he did not thereby mean that self-defense should be established beyond a reasonable doubt, and -where he further charged that such defense need not be established beyond a reasonable doubt, but by what is called in law a fair preponderance or weight of the evidence, and that if on the whole they had a reasonable. doubt as to defendant’s guilt, they should acquit him.</p> <p>, 3. It was not error to tell the jury that the defense was self-defense.</p> <p>4. The cross-examination of witnesses is largely within the discretion of the trial judge, and where a question has been fully answered, his refusal to allow a repetition is not error.</p> <p>5. Where a statement signed by defendant, relating to the homicide, was in evidence, it was not error for the judge to remark in the course of the examination of a witness “The question is whether it was read to the prisoner or whether the prisoner accepted it as his statement. That is the question.”</p> <p>6. It is the inherent right of a prisoner in ¿ capital case to be present at every stage of the proceedings, from his arraignment to the rendition of the verdict; neither court nor judge can take any step affecting his rights in his absence.</p> <p>T. When during a trial for murder it becomes necessary to amend an indictment or substitute a copy, the application therefor should be made in open court, in the presence of the defendant and on notice to his counsel, that all rights may be safeguarded, and it was reversible error for the court to permit an assistant district attorney to prepare a copy of the indictment without notice to the defendant and in his absence, and file the same in place of the original which had been mislaid,'and permit such copy to be given to the jury when they retired to consider the case, especially where it appeared that the names of some of the Commonwealth’s witnesses were omitted from the copy although written on the original indictment, and that defendant’s plea of not guilty was not entered on the copy, although it did appear on the original.</p> <p>8. Where a witness is called to interpret the testimony of a witness, the interpreter should be properly sworn. .</p> <p>9. Whether testimony given in a foreign language was correctly interpreted is a question of fact with which an appellate court will not interfere except in case of manifest error.</p>

<p>Practice, C. P. — Trials—‘Interested witness — Cause of injury— Charge — Sufficiency — Failure to request further instructions — Court and jury — Assignments of error — Incomplete quotation — Insufficient assignments — Practice, Supreme Court.</p> <p>1. One who has no personal interest in the pending suit, is not an interested witness merely because he has a suit growing out of the same accident against both parties thereto.</p> <p>2. It is for the jury alone to decide whether facts testified to are established by the evidence.</p> <p>3. As assignment of error is bad which quotes only a portion of the-general charge dealing with the subject-matter of which complaint is made.</p> <p>4. A failure to explain the-difference between interested and disinterested testimony is not reversible error, where appellant remained silent when asked if there was anything further to which he desired the attention of the jury to be called.</p>

<p>Negligence — Automobiles ■ — ■Pedestrian standing in road — Collision — Examination of witness — Speed—Warning — Conclusion from facts — Failure to answer point — Charge—Sufficiency—Disinterested witness — Comment by court.</p> <p>1. Failure to answer a point does not constitute error if its subject-matter is elsewhere passed upon in the charge.</p> <p>2. While a pedestrian may lawfully use any part of a highway he must do so with regard to the rights of other lawful occupants thereof and to the customs of the road.</p> <p>3. Standing in a public highway at a point usually traveled only by vehicles is not a proper use thereof, and if one so standing is struck by a vehicle properly using the highway, as a rule he cannot recover from the driver thereof, who had no reason to anticipate his being, there.</p> <p>4. A trial judge may properly advise the jury as to the effect to be given to the testimony of the important, disinterested witnesses in the case.</p> <p>5. Ordinarily it is for the jury alone to draw conclusions from the facts stated to or known by the witnesses.</p>

<p>Appeal, No. 71, Jan. T., 1918, by plaintiff, from decree of C, P. Columbia Co., Sept. T., 1917, No. 2, in Equity, sustaining demurrer to bill in equity in case of Henry Schlanger v. The Borough of West Berwick; W. C. Sponsler, President, George Knecht, John C. Crisman et al., Members, and William Karshner, Secretary, of the Borough Council of West Berwick; and Conway W. Dickson, Solicitor of said Borough.</p> <p>Bill in equity for injunction. Before Evans, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court sustained defendant’s demurrer and dismissed the bill. Plaintiff appealed.</p>