Volume 262 — Pennsylvania State Reports

<p>Workmen’s compensation — Injury in course of employment— Referee’s finding of fact — Practice, Supreme Court and Compensation Board — Act of June 2, 1915, P. L. 786.</p> <p>1. Where a miner met his death from noxious gases in a part of his employer’s mine to which he had gone to get tools with which to work, although he had been told not to go into that part of the mine, his death was the result of an accident occurring in the course of his employment within the meaning of the Workmen’s Compensation Act of June 2, 1915, P. L. 756, Section 301.</p> <p>2. A compensation referee should make his findings of fact so comprehensive and explicit as to disclose the full story of the accident, where a question is raised as to whether the accident occurred in the course of decedent’s employment.</p> <p>3. The Workmen’s Compensation Board, where there is no hearing de novo, should not find facts in addition to those stated by the referee, but where it does find additional facts and their correctness is conceded by both parties, the Supreme Court may determine the issues involved upon the facts so found.</p>

<p>Appeal, No. 60, Jan. T., 1918, by plaintiffs, from judgment of C. P. Snyder Co., Feb. T., 1917,' No. 45, on verdict for defendants in case of J. Luther Kanawell, Maggie E. Davis, Palmer Kanawell, Mrs. Jacob Boose, Henry D. Kanawell, Calvin Kanawell, Tina Kanawell, L. C. Moses, Ida Wieand and Wm. Kanawell v. Charles A. Miller and Fred. Musser.</p> <p>Ejectment for recovery of land in Snyder County. Before Johnson, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for defendants and judgment thereon. Plaintiffs appealed.</p> <p>Error assigned, among others, was in refusing plaintiffs’ motion for judgment non obstante veredicto.</p>

Appeal, No. 97, Jan. T., 1918, by Sarah Alice Hartman and Gideon T. Biehl, Executors and. Testamentary Trustees under the last will and testament of John W. Shaffer, deceased, from decree of O. O. Union Go., Jan. T., 1918, No. 2, refusing citation in Estate of John W. Shaffer, deceased. Petition for citation to show cause why respondent should not be required to accept a devise and assume the dower, debt and interest, or forfeit all claims to the land in question.

Appeals, Nos. 69 and 70, Jan. T., 1918, by defendant, from judgment of C. P. Cumberland Co., Feb. T., 1917, Nos. 153 and 154, in cases of Daniel H. Wingert v. Philadelphia and Reading Railway Company. Trespass for personal injuries to plaintiff and damage to plaintiff’s automobile. Before Sadler, P. J. The facts appear by the opinion of the Supreme Court. Yerdict for plaintiff for $4,200 and judgment thereon. Defendant appealed.

<p>Negligence — Railroads—Automobile-—Collision—Grade crossing ■ — -Death of passenger in automobile — Former recovery by driver of automobile — Contributory negligence of passenger — Imputed negligence — Interference with driver — Increase of danger — Case for jury.</p> <p>1. In an action to recover for death of plaintiff’s wife, a passenger seated in the tonneau of an automobile at the time of its collision with a train at a railroad grade crossing, she could not be declared guilty of contributory negligence in joining with the driver in testing a manifest danger where there was a verdict in favor of the driver of the automobile in his action against the defendant tried with the present case, such verdict establishing the fact that the driver stopped, looked and listened and that no train was in sight or hearing.</p> <p>2. In such case, assuming deceased saw or was bound to see the approaching train, since the driver also saw it there was no necessity for interference by her with the operation of the car, as such interference might only have served to increase the danger.</p>

<p>Appeal, No. 62, Jan. T., 1918, by plaintiff, from decree of C. P. York Co., Oct. T., 1916, No. 1, in equity, dismissing bill in equity for injunction in case of John Edward Vandersloot v. Pennsylvania Water & Power Co.</p> <p>Bill in equity for injunction to require removal of flash-boards on part of defendant’s dam west of line dividing York and Lancaster Counties and for other relief. Before Ross, J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Further facts appear in Vandersloot v. Pa. W. & P. Co., 259 Pa. 99.</p> <p>The lower court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned, among others, was in dismissing bill.</p>

<p>Collateral security — Duty of holder — Supine negligence — Overdue indebtedness — Debtor's request to convert to- other security— Refusal..</p> <p>1. A holder of collateral security must exercise due care there-over, and will he held liable if loss results, from his supine negligence.</p> <p>2. But if the collateral security consists of an indebtedness which was overdue when he received it, he is not required, at the request of his debtor, to convert it into some other kind of security; especially if it would be expensive so to do.</p> <p>3. Under such circumstances the debtor’s only right is to pay the debt and receive back the collateral.</p>

<p>Appeal, Nos. 28 and 51, Jan. T., 1918, by defendant, from judgment of C. P. Adams Co., April T., 1915, No. 169, on verdict for plaintiff in case of Annie K. Eline v. Western Maryland Railway Co.</p> <p>Trespass for death of plaintiff’s husband. Before McPherson, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Verdict for the plaintiff for $10,000 and judgment thereon. Defendant appealed.</p> <p>Error assigned, among others, was in refusing defendant’s motion for judgment non obstante veredicto1.</p>

<p>Appeal, No. 36, Jan. T., 1918, by plaintiff, from judgment of C. P. Lancaster Co., June T., 1917, No. 50, entered for defendants on affidavit of defense in nature of a demurrer, in case of LeRoy Worst v. Catharine E. DeHaven, Annie M. Worst, Harry L. Worst.</p> <p>Assumpsit for recovery of rents collected by defendants. Before Hassler, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>Defendant filed an affidavit of defense in the nature of a demurrer. The lower court entered judgment for the defendants. Plaintiff appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 242, Jan. T., 1918, by defendant, from judgment of C. P. Lancaster Co., March T., 1915, No. 41, entered for want of a sufficient affidavit of defense in case of Fulton Farmers Association v. D. R. Bomberger.</p> <p>Assumpsit for commissions. Before Hassler, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The lower court entered judgment for plaintiff for $4,287.70 representing the amount of the claim as to which the affidavit of defense was insufficient, with leave to the plaintiff to proceed to trial for the balance of its claim. Defendant appealed..</p> <p>Error assigned was the judgment of the court.</p>

<p>Wills — Construction—Gift of realty for life with power to consume — Power in devisee to direct sale and demand proceeds — Sale of realty by testator — Ademption—Intention.</p> <p>A testator owning real and personal property, bequeathed all his estate in trust, to place the “money” at interest, lease the real estate and pay over the entire net income annually to his only daughter, during her life, and provided that if at any time she should ask the trustees to sell the real estate they should do so and pay her, out of the proceeds, such sum as she might in writing request, her receipt therefor to be a sufficient release. The will further provided that at her death “whatever estate remains” is to go to certain collateral legatees. Before his death testator converted his real estate into securities. Held, the securities passed under the will as personal estate and an award thereof to the daughter at her request could not be made, her only interest therein being for life.</p>

<p>Contracts — Sales—Beal estate — Agreement to vacate road — Taking of road by railroad — Action for purchase-price — Becital in deed subsequent to suit.</p> <p>1. In an action to recover the balance of the purchase-price of land sold by the plaintiff to the defendant it appeared that the agreement of sale stipulated that plaintiff should secure the vacation of a street which, was located at one end of the property and wholly within its bounds. Plaintiff took steps for the vacation of the road but before its vacation could be accomplished a railroad condemned the road, and subsequently compensated defendant for the loss thereof. Defendant contended he was not liable for the balance of the purchase-price, plaintiff having failed to have the road vacated. The ease was tried without a jury. Meld, (1) the taking for railroad purposes extinguished the easement and (2) its ex-tinguishment, no matter by whom or for what cause, enured to plaintiff’s benefit, and the court properly found in his favor.</p> <p>2. In such case plaintiff’s rights could not be prejudiced by the recitals in the deed from defendant to the' railroad company, executed subsequent to the present suit.</p> <p>3. The fact that the railroad may not occupy the street without the consent of the Public Service Commission and the municipality is immaterial as between plaintiff and defendant.</p> <p>4. Where, land held for one public use is lawfully taken for another inconsistent public use, the former is destroyed.</p>

<p>Equity — Executors and administrators — Beal estate —■ Management of — Agency—Tenants in common. — Partnership—Death of partner — Accounting.</p> <p>1. In the absence of evidence to prove that real estate owned by partners jointly was held by them for partnership purposes, the presumption is that such real estate was not partnership property.</p> <p>2. Where, upon' the death of partners, possession of real estate owned by the two partners jointly, was retained under a lease by the sons of the former partner, who continued the business as a new firm, such real estate, even though formerly partnership property, ceased to be such on the dissolution of the old firm.</p> <p>3. In the absence of necessity, and in default of express provisions in the will, an executor or administrator, as such, is without authority or control over the realty belonging to- the estate. Such property descends directly to the heirs or to the persons designated in the will, and, although the executor or administrator may undertake to collect rent received from such real estate, he does so not in his official capacity, but merely as agent for the heirs.</p> <p>4. A member of a partnership died, leaving his interest in his business to his son; one-third of his remaining property to his wife for life, and, upon her death, to his son and daughter, and the remainder to his son and daughter; the son and daughter were named executors of the decedent’s estate. The old partnership was dissolved and the son formed a new partnership with a son of the surviving partner, and continued the business of the old firm. Certain realty held by both partners jointly was leased to the new firm, at an annual rental of $3,000, decedent’s wife and the two executors joining in the lease. On the expiration of the term, the new firm continued to occupy the premises for eighteen years as tenants from year to year, during which time the real estate greatly enhanced in value. During such period the son managed the affairs of the family and of the estate, and collected the rent from all the decedent’s real estate and properly accounted therefor. In a suit in equity brought by the wife and daughter against the son, to compel him to account for the rental value of the property over and above the rent paid, it appeared that plaintiffs had had notice of the increase in value, but had nevertheless acquiesced in the rental received; that the real estate leased to the new firm was not partnership property of the old firm and was not therefore part of decedent’s personal estate and that in collecting the rents thereof, the son acted as agent for himself and the other heirs and not in his capacity as executor, and there was no question as to the fairness of the lease at the time when it was made. Held, the lower court properly dismissed the bill.</p> <p>5. In such case, defendant was not liable as a tenant in common, since in that capacity he did not sustain the relation of agent to the others except so far as expressly or impliedly agreed between them.</p> <p>Mr. Justice Stewart dissents.</p>

<p>Appeal, No. 26, Jan. T., 1918, by Mildred M. Mizener, Guardian of Mathilda Mizener, from decree of O. C. Erie Co., Nov. T., 1916, No. 58, dismissing petition for a citation, in Estate of F. A. Mizener.</p> <p>Petition for a citation. Before Rossiter, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the petition. Petitioner appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 53, Jan. T., 1918, by plaintiff, from decree of C. P. No-. 1, Philadelphia Co., Sept. T., 1916, No. 1089, in equity dismissing bill in equity to compel a corporation to pay dividends on preferred stock in case of Calvin Pardee, Ario Pardee, Calvin Pardee, Jr., and Louis Pickert, Jr., v. The Harwood Electric Company.</p> <p>Bill in equity to compel a corporation to declare dividends on preferred stock. Before Patterson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the bill. Plaintiffs 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. 366, Jan. T., 1917, by defendants, from decree of C, P. Columbia Co., surcharging defendants in case of Ferdinand Steinmetz, The Philadelphia and Reading Coal and Iron Company, the Lehigh Valley Coal Company, City of Philadelphia, Trustee under the Will of Stephen Girard, Deceased, v. William J. Fennessy, Hiram W. Watson, Martin Monahan, Anthony Mohan and Richard J. Kane, Directors of the School District of Conyngham Township1, Columbia County.</p> <p>Appeal from report of auditors of the school district of Conyngham Township, Columbia County. Before Evans, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>The lower court surcharged the defendants, the school directors of the said township, with the amount of the salaries paid school teachers in excess of the amount of said salaries as fixed at the beginning of the school year. Defendants appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Negligence — Banks and banking — Collection of check — Principal and agent — Extent of collecting bank’s liability.</p> <p>1. An action for negligence can be maintained only for the breach of some duty, express or implied, which defendant owes to plaintiff, either specifically or as a part of the general public.</p> <p>2. .For negligence in collecting a check the collecting bank is liable only to the person or corporation who employed it to make the collection.</p>

Appeal, No. 66, Jan. T., 1918, by defendant, from judgment of C. P. Fayette Co., June T., 1916, No. 583, on verdict for plaintiffs in case of duela F. Soisson and William H. Soisson, her husband, v. School District of the City of Connellsville. Appeal from award of viewers.

<p>Appeal, No. 90, Jan. T., 1918, by plaintiffs, from decree of C. P. Payette Co., No. 904, in equity in case of John Oberly and Mary Oberly v. H. C. Prick Coke Company, a Corporation.</p> <p>Bill in equity for injunction.</p> <p>Reppert, J., filed the following opinion:</p> <p>Findings op Pact.</p> <p>I.</p> <p>By deed dated October 19, 1889, recorded in the recorder’s office of Payette County in Deed Book No. 91, page 329, James P. Hustead, the owner of the fee, with his wife, conveyed to Gilbert T. Rafferty and Charles Donnelly all the nine foot or Connellsville vein of coking coal in and underlying all that certain tract of land situate in North Union Township, in said county, describing it by metes and bounds, containing 109 acres and 46 perches.</p> <p>“Together with the free and uninterrupted right of way under said land at such points and in such manner as may be necessary and proper for the purpose of digging, mining, draining, ventilating and carrying away said coal, hereby waiving all damages arising therefrom or from the removal of all the said coal, together with the privileges of mining and removing through said described premises other coal belonging to said parties of the second part, their heirs and assigns, or which may hereafter be acquired.”</p> <p>II.</p> <p>By sundry mesne conveyances title to the said coal and mining rights became vested in H. C. Frick Coke Company, a corporation of Pennsylvania, defendant, and title to 99 acres and 38 perches of said tract of land, excepting and reserving the said vein of coal and mining rights, became vested in the plaintiffs.</p> <p>III.</p> <p>On or about February 27,1918, the defendant entered upon the surface of plaintiffs’ land, and began preparations for drilling a bore hole ten inches in diameter for the purpose of releasing gas from its mines, the coal being about 520 feet beneath the surface.</p> <p>IY.</p> <p>The Hustead tract of coal is part of defendant’s Lemont No. 1 mine and is now being operated as part of the workings of that mine. The coal is transported through the underground workings to an opening on the surface two and a half miles distant. The mines are ventilated by a fan located the same distance from this tract. The current of air from the fan is distributed through the mine. A portion of the Hustead coal has been entirely mined, the supports removed, and falls from the overlying strata, called gob, loosely occupies the space from which the coal has been taken. Explosive gas endangering the mine and those working therein, caused by the removal of the coal, has accumulated over the gob. It is impossible to reach the accumulation of gas by an air current from the fan. Its removal is necessary to the operation of the mine. It is lighter than air and the only practicable method of removing it is by a bore hole from the surface to the high point of the gob, thus allowing it to escape. Under such circumstances the law requires that this be done.</p> <p>Y.</p> <p>The superintendent of the mine and the mine inspector of the defendant company testify that the gob from the mining of the coal under the surface of plaintiffs’ land causes the accumulation of gas .complained of, and ■that if the defendant was not engaged in mining the coal under that tract the bore hole would not be needed. There is no denial of this testimony and no reason to doubt the facts thus testified to. For the purpose and in the manner above described the bore hole when completed will be a part of the ventilating system of the mine.</p> <p>DISCUSSION.</p> <p>The plaintiffs allege that the action and conduct of the defendant in entering upon their land with the object of drilling and maintaining said bore hole, are unlawful and without authority or right under the grant of the coal owned and operated by the defendant company.</p> <p>The rights of the owner of coal when severed from the surface as to working and surface rights are thus set forth in “The Law of Mines and Mining,” Barringer & Adams, Edition of 1897, page 576:</p> <p>“It is a general rule of law that, when anything is granted, all the means of attaining it and all the fruits and effects of it are also granted; when uncontrolled by express words of restriction all the powers pass which the law considers to be incident to the grant for the full and necessary enjoyment of it. Consequently, a grant or reservation of mines gives the right to work them, to enter and to mine, unless the language of the grant itself provides otherwise or repels this construction. And this right is so inseparable from a grant of minerals, that not only is it necessarily an implied incident thereof, but it and its derived rights, cannot be restrained or excluded by a special affirmative power to do other acts, or by a grant of other privileges necessary or convenient to the working of mines.</p> <p>“The right to work the mine involves the right to penetrate the surface of the soil for the minerals, to remove them in the manner most advantageous to the mine owner, and to use such means and processes in mining and removing them as may be necessary in the light of modern improvements in the arts and sciences......</p> <p>“The bare right to work carries with it the right to use so much of the surface as is reasonably necessary. The mine owner has the right to enter and take and hold possession even as against the owner of the soil, and to use the surface so far as may be necessary to carry on the work of mining, even to the exclusion of the owner of the soil. What is necessary and reasonable may be determined by reference to what is customary, and is a question of fact.</p> <p>“Most frequently the privileges above described as impliedly incident to the right to mine are expressly granted or reserved in the instrument creating a mineral estate; but their character and extent are not altered by this expression, though there may be of course express privileges- added which would not otherwise be- implied. These rights do not create an estate in the surface, but are easements to do- certain acts, thereon.</p> <p>“Surface rights and the incidental rights, such as that to use shafts, whether expressed or left to implication, may be used for the purpose only of mining under the particular premises conveyed, and not as a means of removing minerals from other lands. This, of course, may, however, be changed by the terms of the contract.”</p> <p>As we view it, this expression of the law is in harmony with Pennsylvania decisions, as shown by a number of authorities referred to by Mr. Justice Potter in Baker v. Pittsburgh, Carnegie & Western Railroad Co., 219 Pa. 398, where he says (page 403):</p> <p>“As to tbe other specifications of error which question the correctness of the ruling of the trial judge, that under the reservation in plaintiff’s deed, she had the right to sink a shaft upon the land sold by her for the purpose of mining the coal which she had reserved, we think the court below was clearly right. It is the established law in Pennsylvania. In a recent case, Youghiogheny River Coal Co. v. Allegheny Nat. Bank, 211 Pa. 319, our Brother Mestrezat said (p. 324) : ‘If the owner of the whole fee conveys the coal in the land in general terms, retaining the residue of the tract, the purchaser acquires the coal with the right to mine and remove it, provided he does so without injury to the super-incumbent estate.’ The undoubted right of the owner of coal to mine and remove it, was also expressly recognized in Pringle v. Vesta Coal Co., 172 Pa. 438, and the principle that ‘one who has the exclusive right to mine coal upon a tract of land has the right of possession even as against the owner of the soil, so far as it is necessary to carry on his mining operations’ is laid down in Turner v. Reynolds, 23 Pa. 199. See also Chartiers Block Coal Co. v. Mellon, 152 Pa. 286.</p> <p>“The general rule is stated in 2 Lindley on Mines, section 813, where it is said: ‘A grant of minerals implies the right to win them from the underlying soil. The use of some portion of the surface is necessary for the proper enjoyment of this right. To reach the minerals the miner must pass from, the surface downward; to do this he has a right of way of necessity. He may sink through such land from the surface to the mines, in order to reach and work them.’ And in 2 Sugdon on Mines and Mining, section 1008, it is said: ‘An express grant of all the minerals and mining rights in a tract of land is by natural implication the grant also of the right to open and work the mines, and to occupy for those purposes as much of the surface as may be reasonably necessary.’ ”</p> <p>The removal of gas is a necessary incident to the mining of coal, in order that mining operations may be carried on with safety. It is one of the implied rights incidental to every grant of minerals. The bore hole in controversy is necessary to the proper ventilation of the mine in the coal immediately underlying plaintiffs’ land,. Avhich coal is now being mined.</p> <p>Our conclusion is that the preliminary injunction heretofore granted should therefore be dissolved.</p> <p>The lower court granted a preliminary injunction as. prayed for and thereafter dissolved same. Plaintiffs appealed,.</p> <p>Error assigned was the decree of the court.</p>

Appeal, No. 96, Jan. T., 1918, by defendant,, from judgment of C. P. Cumberland Co., Sept. T., 1917, No. 156, on verdict for plaintiff in case of S. B. Leach v. Philadelphia, Harrisburg & Pittsburgh Railroad Co. Appeal from award of viewers in proceedings for condemnation of easement of way over an alley, for railroad purposes. Before Gillan, J., specially presiding.

<p>Executors and administrators — Decedent’s estates — Beal estate —Sale for payment of debts — Disposition of proceeds — Payment of indebtedness on other realty — Surcharge.</p> <p>Where a testator who possessed no personalty left two tracts of land, both of which were mortgaged, and a subsequent judgment note for a sum greater than the equity in the realty was of record in trust for decedent’s creditors as of the time of its entry, and a sale of one of the tracts for the payment of debts was held, under order of court, the executrix was not justified in appropriating the proceeds thereof to the payment of taxes, repairs and mortgage interest accruing on the second tract after the sale, and she was properly surcharged to such extent.</p>

Appeal, No. 373, Jan. T., 1917, by plaintiffs, from decree of C. P. No. 3, Philadelphia Co., June T., 1916, No. 1758, refusing prayer of bill in equity for removal of building in case of James H. Penniman, Josiah H. Penniman, William G. Foulke, Lillie B. McGonigal, Wallace Gill, Elizabeth Gill and Henry Hamilton Palairet, Lionel Charles Hamilton Palairet and Charles Michael Palairet, Trustees Under Deed of Marriage Settlement of Mary Ann Hamilton Palairet, v. Joseph B.…

<p>Appeal, No. 87, Jan. T., 1918, by C. J. Delone, from decree of C. P. York Co., Jan. T., 1915, No. 4, in equity, confirming auditor’s report in R. W. Hartnett Co. v. Poultry Fancier Publishing Co.</p> <p>Exceptions to report of Ray P. Sherwood, Esq., auditor appointed to distribute balance of the proceeds of the Poultry Fancier Pub. Co. Before Ross, J.</p> <p>The lower court dismissed the exceptions and confirmed the report of the auditor. C. J. Delone,' the creditor, appealed.</p> <p>Errors assigned, among others, were in dismissing exceptions to the report of the auditor.</p>

<p>Practice, C. P. — Variance—Failure to object at trial — Waiver.</p> <p>1. Where in a negligence case a fact not covered by the pleadings is testified to by the plaintiff’s witnesses and they are cross-examined as to such fact and no formal objection to the variance is raised at the trial, and no motion for a nonsuit or a continuance is made, the defendant cannot, after verdict and judgment, successfully complain of the alleged variance.</p> <p>Negligence — Railroads—Aisle of car — Condition of carpet — Fall of passenger — Evidence—Absence of proof of plcdntiff’s age — Damages — Chwrge—Improper remarks of counsel — New trial — Refusal.</p> <p>2. The fact that there is no testimony as to the age of a plaintiff, who is present at the trial, is no ground for refusing to permit a recovery based upon the plaintiff’s expectancy of life, where the jury has had ample opportunity to form its own opinion as to the plaintiffs age and where no objection is made to such alleged lack of evidence until after verdict and judgment.</p> <p>3. In an action against a railroad company by a passenger to recover for personal injuries resulting from a fall occasioned by the defective condition of a carpet in the aisle of one of defendant’s cars, there is no merit in the contention that the charge was inadequate on the question of defendant’s negligence, where the court instructed the jury that it was the duty of the defendant, as a common carrier, to maintain its cars in a proper manner, and affirmatively answered plaintiffs points to the effect that it is the duty of a common carrier to exercise a high degree of care in seeing that the threshold of the cars and the carpets in the aisles are in a reasonably safe condition.</p> <p>4. No complaint can successfully be made on appeal as to alleged improper remarks by counsel where no request has been made for the withdrawal of a juror or for instructions to disregard the alleged improper remarks.</p> <p>Practice, Supreme Court — Harmless error — Assignments of error.</p> <p>5. Assignments of error will be dismissed where they disclose no substantial injury to the appellant as the actual or probable result of the errors complained of.</p>

<p>Bridges — County bridges — Repair—Mandamus—Estoppel.</p> <p>In mandamus proceedings to compel county commissioners to rebuild a bridge which was destroyed by a flood, where the defense was that the bridge destroyed was not a county bridge, but where it clearly appeared that in 1836, the county commissioners after proper proceedings had erected a bridge at the point where the bridge was destroyed and had paid for the same out of the county rates and levies; that said bridge had been washed away by a flood in 1893 and another bridge had been erected by the county commissioners in its place, the latter being the bridge which had recently been destroyed, the fact that a record was missing which would conclusively show such bridge to be a county bridge was not material and the mandamus should have been awarded as prayed for.</p>

<p>Appeal, No. 23, Jan. T., 1918, by petitioner from order of C. P. No. 1, Philadelphia Co., Dec. T., 1895, No. 673, discharging rule for citation, to show cause why a party in possession of real estate should not deliver possession to petitioner and awarding jury trial in case of Martha W. Smith v. Augusta C. Scholl.</p> <p>Petition for a citation under Act of April 20, 1905, P. L. 239, to show cause why a party in possession of real estate should not deliver possession of premises to petitioner. Before Shoemaker, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court discharged a rule for judgment for want of a sufficient answer and awarded an issue upon the question of adverse possession. Petitioner appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Negotiable instruments — Promissory notes — Defenses—Payment.</p> <p>1. Where in an action on an accommodation note, the defense was that the note had been given as collateral security for a preexisting debt which had been paid, whereby the note was discharged, but where it clearly appeared from all the evidence that the note had been given in part payment of such indebtedness, and was regarded by all parties as a valid obligation for that purpose, a verdict should have been directed for the plaintiff. •</p> <p>2. In such case there is no merit in the contention that the terms pi a subsequent composition made by the principal obligor with its creditors extinguished plaintiff’s claimi when the former’s correspondence with plaintiff thereafter acknowledged the existence of the indebtedness.</p>

<p>Equity — Equity practice — Withdrawal of hill — Payment of costs —Effect of discontinuance of suit — Subsequent action at law.</p> <p>1. It is a general rule in a court of chancery that a complainant may move to dismiss his own bill with costs, at any time before the decree, and it is a matter of course to permit him to dismiss it. When the bill has been dismissed and the costs paid, the suit is terminated, and no further proceedings may be had therein.</p> <p>2. Where in a suit in equity for an accounting the bill has been withdrawn by leave of court and the costs have been paid by plaintiff to defendant and thereafter plaintiff brings, an action at law on the same cause of action, the defendant has no standing to maintain a petition entitled in the former equity suit for an order enjoining the plaintiff from proceeding in his action at law, and such petition was properly dismissed.</p>

<p>Appeal, No. 93, Jan. T., 1918, by plaintiff, from order of C. P. Crawford CO'., May T., 1917, No. 70, reversing decision of 'Workmen’s Compensation Board, affirming referee’s finding for plaintiff in case of Elizabeth Wise v. Borough of Cambridge Springs.</p> <p>Appeal from Workmen’s Compensation Board. Before Prather, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The referee awarded plaintiff $2,017.30.</p> <p>The Workmen’s Compensation Board affirmed the decision of the referee. The Court of Common Pleas reversed the decision of the Workmen’s Compensation Board and dismissed the claim. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Wills — Legacies—Tested and contingent interests — Construction —Intention.</p> <p>1. The law leans to vested rather than to contingent estates, and the presumption is that a legacy is vested.</p> <p>2. The presumption that a legacy was intended to be vested applies with far greater force where a testator is making provision for a child or grandchild than where the gift is to a stranger or to a collateral relative.</p> <p>3. Where a legacy is made payable at a future time, certain to arrive, and not subject to conditions precedent, it is vested where there is a person in esse at the time of the testator’s death capable of taking when the time arrives, although his interest be liable to be defeated altogether by his own death.</p> <p>4. Where a testator by will created a trust fund, the income of which was to be paid to three children and a grandchild and provided “at the death of my son James....... twenty thousand dollars of the principal sum to be paid to his children, being my grandchildren, six thousand dollars to William......, six thousand dollars to Charles......, six thousand dollars to Catherine......, and two thousand dollars to the children of my said son, James, by his second marriage......and one of the grandsons, Charles, died during the lifetime of his father, intestate, unmarried and without issue, the legacy to Charles being vested, passed to his father, James, who was his next of kin under the intestate laws. «</p>

<p>Appeal, Nos. 229 & 343, Jan. T., 1917, by plaintiffs, from judgment of C. P. NO'. 3, Philadelphia Co., March T., 1916, No. 1233, for defendant n. o. v., in case of John A. Holzheimer and Lucy E. Holzheimer v. Lit Brothers.</p> <p>Trespass to recover damages for personal injuries. Before Davis, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff, Lucy E. Holzheimer, for $2,500, and for John A. Holzheimer for $1,000. The court subsequently entered judgment for defendant n. o. v.</p> <p>Error assigned was the judgment of the court.</p>

<p>Mandamus — School directors — Improper removal from office— Reinstatement.</p> <p>1. On a petition for a writ of peremptory mandamus to compel school directors to reinstate a member of the board whom they had unlawfully removed from office on the alleged ground that the petitioner had failed to attend three successive regular meetings of the board, where it clearly appeared that one of the meetings, which respondents alleged plaintifE failed to attend, had not taken place, and that another of such meetings was not a regular meeting, and that the motive of respondents in removing plaintifE was to create a vacancy in the board which they immediately after attempted to fill by electing a former member, the court committed no error in granting the relief prayed for.</p> <p>2. In such case, where plaintiff’s right to reinstatement was clear from the evidence and from findings in a former equity suit on the same cause of action in the same court which was dismissed on the ground that plaintiff had an adequate remedy at law, the court properly awarded a mandamus in the peremptory rather than in the alternative form.</p>

<p>Appeal, No. 59, Jan. T., 1918, by defendants, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1917, No. 1111, for plaintiff for want of a sufficient affidavit of defense in case of The Republic Trust Company of Philadelphia v. Henry D. Hughes et al.</p> <p>Scire facias sur mortgage.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Barratt, 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. Defendants appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Libel and slander — Charge of wife-beating — Words libelous per se — Innuendo—Pleadings—Case for jury.</p> <p>1. A newspaper article charging that plaintiff was guilty o£ beating and ill-treating his wife is calculated to expose the person so charged to disgrace, odium and contempt in the eyes of his friends, and is libelous per se.</p> <p>2. If words are defamatory, the law will presume the damage.</p> <p>3. It is not necessary that all the words laid in a declaration for libel should be actionable. It is sufficient that some of them are.</p> <p>4. The question as to whether or not the innuendo in an action for libel is warranted by the language declared on is for the court.</p> <p>5. Where a declaration in an action for libel averred that defendant had published an article charging plaintiff with beating and illtreating his wife and further that defendant had charged plaintiff by innuendo with conspiring with his brother to place his wife in an insane asylum, it was not material that the allegations as to the innuendo of conspiracy could not be maintained; the charge of wife-beating being libelous per se, and the ease should have been submitted to the jury.</p>

<p>Criminal law — Leasing dwelling for immoral purposes — Evidence — Sufficiency.</p> <p>On tbe trial of an indictment for leasing a dwelling for immoral and illegal purposes, where the defense set up was that the transaction was not a leasing but a sale of the premises to defendant’s" son, but the alleged sale rested entirely in parol, it was not reversible error to admit in evidence a notice to quit served upon the tenant demanding immediate possession of the premises without assigning any reason therefor, such notice being signed by defendant’s son as owner, as it was a matter for the jury to determine whether or not the alleged purchase and notice to quit were not part of the general scheme to evade the law as contended by the Commonwealth.</p>

<p>Appeal, No. 195, Jan. T., 1917, No. 181, by defendant, from judgment of Superior Court, Oct. T., 1916, No. 131, affirming judgment of Q. S. Blair Co., Oct. Sessions, 1915, No. 38, on verdict of guilty of leasing a dwelling house for immoral and illegal purposes in case of Commonwealth v. B. J. Berney.</p> <p>Appeal from Superior Court.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict of guilty of leasing a dwelling house for immoral and illegal purposes. Defendant was sentenced to pay costs and to undergo imprisonment in the county jail for forty-five days. Defendant appealed to the Superior Court. The Superior Court affirmed the judgment of the Court of Quarter Sessions. Defendant appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 29, Jan. T., 1918, by plaintiff, from judgment of C. P. Erie Co., Sept. T., 1908, No. 38, for defendant, in case tried by a judge without a jury, in case of The Park Paving Co. v. George H. Kraft and Curtis Johnson, now by substitution James D. Johnson and Elizabeth Johnson Duddenhoeffer, Executors of Curtis Johnson, deceased. Assumpsit on two bonds given to secure the performance of street paving contracts.

Appeal, No. 165, Jan. T., 1917, by plaintiff, from judgment of C. P. Luzerne Co., Feb. T., 1911, No. 547, on verdict for defendant, in case of Louis Tavani v. Swift & Company. Trespass to recover damages for injuries resulting from eating infected pork sold by defendant. Before Strauss, J. The opinion of the Supreme Court states the facts. Verdict for defendant and judgment thereon. Plaintiff appealed. Errors assigned were rulings on evidence and instructions to the jury.

<p>Appeal, No. 256, Jan. T., 1917, by William J. Fennessey, Hiram W. Watson and Anthony Mohan, from order of C. P. Columbia Co., Sept. T., 1917, No. 1, removing school directors for neglect of duty, in case of Petition of John R. Murray et al. for the removal of the Board of School Directors of .the School District of Conyngham Township, Columbia County.</p> <p>Proceeding for the removal of school directors under Section 217 of the School Code of May 18, 1911, P. L. 309. Before Evans, P. J., Hauck, A. J., and Rhodes, A. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court removed the school directors, including William J. Fennessey, Hiram W. Watson and Anthony Mohan, appellants, from office.</p> <p>Error assigned was the order of the court.</p>

<p>Equity — Equity practice — Two-witness rule — Application—Married women — Husband and wife — Suit by wife for her separate property — Deed to husband shortly before marriage — Fraud—Accounting — Evidence—Sufficiency—Laches — Estoppel — Presumption — Limitation—Goal royalties — Interest—Acts of April 22,1856, P. L. 582-8, Sec. 6, ■and March 27,1918, P. L. H.</p> <p>1. The two-witness rule does not require that every detail of one witness’s testimony must be corroborated by the direct evidence of another, but only that a litigant’s material, or controlling, allegations must be sustained by either one other witness or equivalent corroborating circumstances.</p> <p>2. Where at a hearing of a suit in equity for the cancellation of a deed and for an accounting, no point was raised, at the conclusion of the plaintiff’s case, that her case had not been sufficiently proved ■as required by the two-witness rule and thereafter the defendant appeared as a witness for himself, and admitted that the deed, sought to be cancelled, had, in fact, the effect contended for by plaintiff, the two-witness rule no longer had any application.</p> <p>3. In a suit by a married woman to compel her husband to re-convey to her certain property which she had conveyed to him just prior to her marriage, where it appeared that such conveyance was absolute in form, and where there was evidence that it was induced by false representations on the part of the husband as to the effect of the conveyance and that he had stated to her that it merely gave him control of the property so that he might manage it for her benefit; and where defendant admitted on the stand that it was not intended that he should have absolute control of the property, although, in his answer, he claimed absolute ownership thereof, the court properly entered a decree in favor of plaintiff.</p> <p>4. In such ease the wife is a competent witness, the Act of March 27, 1913, P. L. 14, using the words “separate property” in a broad and comprehensive sense, not applicable to this case.</p> <p>5. The fact that in such case, no relief was sought until more than thirty years after the conveyance was made, did not preclude plaintiff from successfully urging her claim for reconveyance, where it appeared that there was a continual recognition by defendant of his wife’s equitable estate and although there was duplicity on the part of the defendant in procuring the conveyance, the consummation of his attempted fraud did not occur until in the suit brought by the wife, when he formally set up his claim to absolute ownership; and the court properly found that plaintiff’s laches was not a bar to the maintenance of the suit.</p> <p>6. In a suit between a wife and her husband for the protection of the former’s property, statutes of limitation as well as presumptions or estoppel by lapse of time do not ordinarily affect the rights of the wife, since for reasons of public policy she cannot be expected to treat her husband as a stranger; hence the Act of April 22,1856, P. L. 532-3, See. 6, does not apply to this case.</p> <p>7. Where in such case a complaint was made of a surcharge of income against the defendant, and it appeared that he had been surcharged with coal royalties received by him from plaintiff’s lands, and where there was a finding, on sufficient evidence, that the royalties were to be collected and put at interest by defendant for the benefit of his wife and children, and that they were accumulated and invested by him, it was not material whether or not the property from which the royalties arose was an open mine at the time of the original conveyance, and assignments of error complaining of such surcharge were dismissed.</p> <p>8. Where in such case the wife contended that the defendant should be required to pay interest on the coal royalties received by him, as well as interest on certain moneys derived from sales of real estate, but where it appeared that the income so received was spent by defendant for family maintenance, with full knowledge on the part of plaintiff and without protest during many years, the rule that ordinarily a husband will not be required to pay interest to his wife was applicable, and an assignment of error complaining of the refusal of the court to make the surcharge requested was overruled.</p>

<p>Negligence — Boroughs—Streets—•Ditches — Injury to driver of vehicle — Proximate cause — Contributory negligence — Case for jury.</p> <p>Where in an action against a borough to recover damages for personal injuries, it appeared that plaintiff was driving a wagon on a public highway and that he was jolted therefrom as the wagon crossed a ditch, and that from his position on the wagon, plaintiff had a partial hut not entire view of the street, the questions of defendant’s negligence, proximate cause, and contributory negligence of the plaintiff were for the jury and a verdict for plaintiff will he sustained.</p>

Appeal, No. 20, Jan. T., 1918, by defendant, from judgment of C. P. Luzerne Co., March T., 1916, No. 441, on verdict for plaintiff, in case of Annie Stefanson, widow of Elmer Stefanson, deceased, v. The Borough of Plymouth. Trespass to recover damages for death of plaintiff’s husband. Before Strauss, J. The opinion of the Supreme Court states the facts. Verdict for plaintiff for $2,528.50, and judgment thereon. Defendant appealed.

<p>Negligence — Defective sidewalks — Erroneous instruction — Harmless error.</p> <p>In an action against a municipality for injuries sustained by plaintiff in consequence of defects in a sidewalk, the fact that the trial judge in charging the jury referred to the ultimate liability of the property owner for the injuries complained of was not reversible error, where no complaint was made of the general charge and the court instructed the jury that the liability of the property owner was not involved in the case.</p>

Appeal, No. 84, Jan. T., 1918, by plaintiff, from judgment of C. P. Luzerne Co., March T., 1915, No. 3G1, refusing to take off nonsuit, in case of James R. Bryden v. Delaware, Lackawanna & Western Railroad Company. Assumpsit for notary’s fees. Before Garman, J. The opinion of the Supreme Court states the facts. The trial judge entered a compulsory nonsuit which the court subsequently refused to take off. Plaintiff appealed.

<p>Appeal, No. 88, Jan. T., 1918, by plaintiffs, from order of C. P. Luzerne Co., June T., 1916, No. 127, refusing to take off nonsuit, in case of Joseph L. Dunn and Newton R. Turner, Executors of the Estate of Thomas A. Dunn, Deceased, v. Louis Tisch.</p> <p>Assumpsit on a promissory note. Before Strauss, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court entered a compulsory nonsuit, which it subsequently refused to take off. Plaintiffs appealed.</p> <p>Error assigned was in refusing to take off nonsuit.</p>

Appeal, No. 5, Jan. T., 1918, by defendant, from judgment of C. P. Luzerne Co., June T., 1915, No. 379, for plaintiff, for want of a sufficient affidavit of defense, in case of C. H. Moore v. County of Luzerne. Assumpsit on a contract of employment. Rule for judgment for want of a sufficient affidavit of defense. Before Carman, J. The opinion of the Supreme Court states the facts. The court entered judgment for plaintiff for want of a sufficient affidavit of defense.

<p>Appeal, No. 6, Jan. T., 1918, by defendant, from judgment of C. P. Luzerne Co., June T., 1915, No. 375, for plaintiff for want of a sufficient affidavit of defense in case of Harry Myers v. County of Luzerne.</p> <p>Assumpsit on a contract of employment.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Garman, J.</p> <p>The facts appear in Moore v. Luzerne County, 262 Pa. 216.</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>Taxes — Tax collectors — Commissions—Officers—-De facto and de jure officers.</p> <p>The fact that a school board has paid commissions for collecting taxes to a de facto officer will not preclude the de jure officer from collecting from the school board the commissions on such taxes which he would have collected had. he been inducted into the office at the time he was entitled thereto.</p>

<p>Appeal, No. 284, Jan. T., 1917, by defendants, from judgment of C. P. Fayette Co., June T., 1915, No. 792, in ease of Colley J. Miller v. William Grimes and Lee Grimes.</p> <p>Framed issue to determine title to land in Fayette County. Before Reppert, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The trial judge directed a verdict for plaintiff upon which judgment was entered. Defendants appealed.</p> <p>Error assigned was in directing a verdict for plaintiff and in refusing to direct a verdict for defendants.</p>

<p>Practice, C. P. — Trials—Ordering cases to be tried together— Consolidation — Judicial discretion.</p> <p>1. Where cases are of the same nature and arise out of the same transaction and depend upon substantially the same proofs, it is within the discretion of the trial judge, in the interest of justice, and for the purpose of avoiding unnecessary delay and expense, to order all to be tried together, although, in every other respect, the actions remain distinct and require separate verdicts and judgments.</p> <p>2. Where a technical consolidation of actions takes place the result is that one verdict is rendered which is conclusive of the entire subject-matter of the litigation. Different actions cannot be consolidated unless between the same parties and involving the same subject-matter, issues and defenses.</p> <p>Negligence — Railroads—"Stop, looh and listen” — Automobile— Collision — Passengers—Failure to warn driver — Contributory negligence — Case for jury.</p> <p>3. When danger arising out of the operation of a vehicle by another is manifest to a passenger who has adequate opportunity to control the situation, if he sits without protest and permits himself to be driven to his injury, his negligence will bar recovery; but the passenger is not required to exercise the same degree of care in observing the roadway ahead of him, as is required of the driver of the vehicle; a passenger is only responsible for his actual negligence in joining with the driver in testing a danger he knows exists, and not for the result of mere inaction in failing to discover dangers of which he is ignorant, but might have discovered had he given attention to the roadway ahead of him.</p> <p>4. In an action against a railroad company to recover for personal injuries sustained in a grade crossing accident where it appeared that plaintiff’s husband was driving her in an automobile over a road unfamiliar to them both, that they were not aware of the crossing until within fifteen feet of it when they both observed • it concurrently but the plaintiff did not call her husband’s attention to it, the question of plaintiff’s contributory negligence was for the jury and the court erred in charging in words that would be interpreted to mean that it was plaintiff’s duty to observe at all times the roadway ahead of her in substantially the same manner as though she were driving the automobile.</p>

Appeal, No. 72, Oct. T., 1918, by defendant, from sentence of O. & T. Beaver Co., June Sessions, 1917, No. 9, on verdict of guilty of murder of the first degree, in case of Commonwealth v. Lazar Zee. Indictment for murder. Before Corbet, J., specially presiding. The opinion of the Supreme Court states the facts. The verdict was as follows: “Guilty of murder in the first degree, hut recommend the mercy of the court.” The court subsequently imposed sentence of death.

<p>Negligence — Mines and mining — Defects of original construction —Liability of mine owner — Practice, Supreme Court and C. P.— Assignments of error — Exception to charge — Act of May 11, 1911, Sec. 2 — Instructions to jury.</p> <p>1. Assignments of error not in accordance "with the rules of court will be disregarded.</p> <p>2. A general exception to the charge of the court, without any reason being alleged regarding the same in the hearing of the court, as required by Section 2 of the Act of May 11, 1911, P. L. 279, is erroneous.</p> <p>3. A mine owner is not relieved of liability for negligence in matters of original construction because the man in charge thereof was a certified mine foreman.</p> <p>4. It is error to affirm a point calling for the interpretation of a paper not in evidence.</p> <p>5. A judgment will be reversed if the charge of the court is self-contradictory, unless on a review of the whole ease it appears that no harm was done thereby.</p>

<p>Practice, Supreme Court — Equity—Appeals—Decrees—Act of June U, 1895, P. L. US.</p> <p>1. Unless all the evidence taken in the court below is printed in the paper-books, findings of fact, and conclusions drawn therefrom, will not he reviewed by the Supreme Court.</p> <p>2. Where a preliminary decree for an accounting has been affirmed on appeal, matters covered thereby will not he reconsidered on an appeal from the final decree, notwithstanding the Act of June 24, 1895, P. L. 243.</p> <p>3. Harmless errors furnish no ground for reversal.</p>

<p>Constitutional law — Constitution of Pennsylvania — Article III, Section 8 — Statutes—Title of act — Notice—Act of June 9,1891, P. L. $Hf8 — Validity—County treasurer — Liquor license fees — Commissions.</p> <p>1. The general rule is that to comply with the constitutional requirements the title of an act need only give such notice of the ¡subject-matter as to fairly and reasonably lead to an inquiry into •¡the body of the bill.</p> <p>2. The title of the Act of June 9, 1891, P. L. 248, amending Seeifciftn 8 qf ihe Act of May 13, 1887, P. L. 108, contains.not only a specific reference to tbe original act by its title, but also refers specifically to the subject-matter of that act; tbe provisions of tbe body of tbe amendatory act are germane to tbe subject of the original legislation, and the title cannot be said to be misleading as failing to give notice of tbe legislative intent to exempt tbe various municipalities from liability for a proportionate* share of the expense of collecting license fees.</p> <p>3. Under tbe said Act of 1891, a county treasurer is not entitled to retain a commission on liquor license fees collected by him and paid to tbe treasurer of a borough.</p>

<p>Declaration of trust — Bevocabiliiy— Consideration — Husband and wife — Insurance money.</p> <p>1. Where a wife makes a declaration of trust whereby she agrees to dispose in a designated manner of the proceeds of certain insurance policies owned by her husband and payable to her upon the death of her husband, the trust, although possibly revocable during the lifetime of the husband, becomes irrevocable upon his death.</p> <p>2. The rule that a contract is voidable as to both parties when voidable as to one, cannot be invoked after that one has fully performed or become definitely liable to perform on his part.</p> <p>3. Where the insured in certain insurance policies, which were payable to his wife upon his death, gave his estate in trust for the benefit of his wife for her life, and suggested in his will that, upon his death, she would pay his debts and funeral expenses from the proceeds of the insurance policies, and pay over the balance to the trustees under the will for the purposes named therein, and the wife endorsed a declaration of trust on the back of the will whereby she declared that she would turn over the proceeds of the policies to the executors and trustees under the will, to be treated by them as part of her husband’s estate, such declaration became irrevocable upon the death of the husband; and in an action by the trustees against the wife to recover the insurance money judgment should have been entered in favor of the plaintiff.</p> <p>4. In such case there was sufficient consideration for the deela,- , ration of trust, where the wife was to have a life interest in the entire estate, including the insurance money.</p>

<p>Appeal, No. 339, Jan. T., 1917, by Samuel E. Taylor, Trustee, from decree of O. C. Payette County, June T., 1916, No. 64, dismissing exceptions to adjudication, in Estate of Samuel Thompson, Deceased.</p> <p>Exceptions to adjudication. Before Work, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the exceptions.' Samuel E. Taylor, trustee, appealed.</p> <p>Errors assigned were in dismissing exceptions.</p>

<p>Principal and surety — Promissory notes — Alleged alteration of contract by principals — Forbearance to sue — Consideration—Discharge of surety — Affidavit of defense — Averments.</p> <p>1. A surety has a right to require strict performance of the contract and an agreement between the principals varying its terms in a material part without the consent of the surety will release him from liability.</p> <p>2. An agreement between a principal debtor and creditor, to have the effect of altering a written contract so as to discharge a surety, must be based upon a sufficient consideration; that is, it must be a valid and enforceable contract.</p> <p>3. While forbearance to sue has always been recognized as an adequate consideration for a promise made in reliance thereon, there must be an agreement to that effect; mere forbearsmce without an agreement has been held not a good consideration because of there being nothing to prevent the bringing of a suit at any time.</p> <p>4. A memorandum endorsed on the back of a promissory note by the principal debtor subsequent to its execution and without the consent of the sureties thereon, providing “all overdue int. to bear int. to be compounded semiannually” will not discharge the surety if it was made without consideration.</p> <p>5. In an action against the sureties on promissory notes the affidavit of defense alleged that defendants had been discharged by reason of an endorsement on the back of the note to the effect that interest should be compounded semiannually, which endorsement was made by the principal without defendants’ consent, and, in consequence of which, the creditor had forborne to collect the interest for more than four years. It was not alleged that the forbearance of the plaintiff to collect the interest was in pursuance of an agreement between him and the principal that the interest should be compounded semiannually. Held, the affidavit of defense was insufficient.</p>

<p>Appeal, No. 41, Jan. T., 1.918, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1917, No. 16, reversing decision of Workmen’s Compensation Board, in case of Jennie Y. Smith v. State -Workmen’s Insurance Fund.</p> <p>Appeal from Workmen’s Compensation Board dismissing appeal from report of referee. Before Whitehead, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court reversed the action of the Workmen’s Compensation Board. Defendant appealed.</p> <p>Error assigned was the judgment of the court.</p>

<p>Eminent domain — Evidence—Incompetent evidence — Incompetent witnesses — Relevant evidence — Erroneous exclusion.</p> <p>1. In. eminent domain proceedings to assess damages to a tract of land caused by the condemnation of a part thereof for railroad purposes, a witness is incompetent to testify as to the value of the land before and after the taking, where he admits that in forming his opinion, he considered that the land could have been divided into separate lots desirable for sites for summer residences and the worth of the separate lots, but where he did not state that there was any market or present demand for sites for summer residences, or any circumstances from which a present market or demand could be reasonably inferred.</p> <p>2. While the general advantage, resulting as well to the public as to the property which is the subject of the condemnation, is not to be considered in estimating the benefits, if any, to that property, yet any special advantage arising thereout affecting an enhancement in value of the land out of which the appropriation has been made, and in which the other lands in the neighborhood does not share, may be considered; it is error, therefore, to exclude evidence to the effect that by reason of the construction of a railroad station near plaintiff’s property as a part of the general plan of railroad improvement in the neighborhood, the damages which plaintiff would otherwise have sustained by reason of the condemnation were reduced.</p>

Appeal, No. 113, Jan. T., 1917, by defendant, from judgment of C. P. Susquehanna Co., Aug. T., 1912, No. 193, on verdict for plaintiff, in case of Jennie L. Tiffany v. The Delaware, Lackawanna & Western Railroad Company. Appeal from award of board of viewers in condemnation proceedings. Before Little, P. J. The opinion of the Supreme Court states the fact. Verdict for plaintiff for $3,168.10 and judgment thereon. Defendant appealed. Errors assigned were rulings on evidence.

Appeal, No. 208, Jan. T., 1917, by defendant, from judgment of C. P. No. 4, PMladelpMa Co., June T., 1915, No. 4723, on verdict for plaintiff in case of Lettie May Benner v. Philadelphia & Reading Ry. Co. Trespass to recover damages for death to plaintiff’s husband. Before Carr, J. The facts appear in the opinion of the Supreme Court. Verdict for plaintiff for $13,500 and judgment thereon. Defendant appealed.

Appeal, No. 40, Jan. T., 1918, by Ralph Winters, from judgment of tbe C. P. of Lackawanna Co., October T., 1916, No. 187, dismissing a taxpayer’s appeal from report of auditors of school district of Borough of Dunmore. Motion to quash appeal for want of proper bond. Before Newcomb, J. The facts appear in the opinion of the Supreme Court. The court quashed the appeal.

Appeal, No. 166, Jan. T., 1917, by defendants, from decree of C. P. No. 1, Philadelphia Co., March T., 1916, No. 3378, in equity, for plaintiff in case of Callender I. Leiper v. The Baltimore & Philadelphia Railroad Company and the Baltimore & Ohio Railroad Company. Bill in equity for injunction. Before Finletter, J. The facts appear in the opinion of the Supreme Court. Error assigned inter alia was the decree of the court.

<p>Appeal, No. 330, Jan. T., 1917, by defendants, from decree of C. P. Berks Co., sitting in equity, No. 1176, Equity Docket 1916, for plaintiff in case of Mary E. O’Reilly, Catherine O’Reilly Kelly, Elizabeth O’Reilly Mishler and Joanna M. O’Reilly v. The Reading Trust Company, Trustee, and John O’Reilly Kelly, by his Guardian ad litem, John Keppelman.</p> <p>Bill in equity to annul certain trust agreements. Before Endlich, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court awarded the relief prayed for. Defendants appealed.</p> <p>Errors assigned, among others, were in dismissing exceptions to findings of fact and conclusions of law and the decree of the court.</p>

<p>Appeal, No. 14, Jan. T., 1919, by defendant, from judgment of Superior Court, Oct. T., 1917, No. 329, affirming sentence of Q. S. Philadelphia Co., Nov. Ses., 1916, No. 452, on verdict of guilty, in case of Commonwealth of Pennsylvania v. John A. Seibert.</p> <p>Appeal from Superior Court. Before Martin, P. J. See 69 Pa. Superior Ct. 271.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>-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>

Appeal, No. 154, Oct. T., 1917,. by William Pickett & Company, from judgment of C. P. Washington Co., May T., 1917, No. 472, dismissing appeal from decision of Workmen’s Compensation Board, affirming report of referee, allowing claim in case of Nancy Catlin v. William Pickett & Company and Globe Indemnity Company. Appeal from Workmen’s Compensation Board. Before Irwin, J. The opinion of the Supreme Court states the facts. The court dismissed the appeal.

<p>Appeal, No. 54, Jan. T., 1918, by defendants, from judgment of Superior Ct. of Pa., Oct. T., 1917, No. 114, affirming judgment of C. P. No. 3, Philadelphia Co., Sept. T., 1916, No. 116, dismissing appeal from Workmen’s Compensation Board, affirming report of referee, allowing claim, in case of Louisa Ida Amelia Irvin v. William M. Frost & Company and the Fidelity & Casualty Company of New York.</p> <p>Appeal from Superior Court. Before Ferguson, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The Superior Court affirmed the judgment of the Court of Common Pleas. Defendants appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 55, Jan. T., 1916, by- Thomas Huben, from decree of O. C. Schuylkill Co., Docket 8, p. 160, refusing issue devisavit vel non in case of Estate of Fargus White. Petition for issue devisavit vel non. Before Wilhelm, P. J. The opinion of the Supreme Court states the facts. The court refused. the petition. Thomas Huben appealed. Error assigned was the decree of the court.

Appeal, No. 142, Jan. T., 1917, by defendant, from judgment of Superior Ct., Oct. T., 1915, No. 5, reversing judgment of C. P. No. 2, Philadelphia Co., Sept. T., 1914, No. 4225, for plaintiff in case of Franz Ehrlich, Jr., and the Pennsylvania Company for Insurances on Lives and Granting Annuities, Executors of the Will of Mary Van Beil, deceased, v. Daniel E. Brogan and the Finance Company of Pennsylvania. Appeal from Superior Court.

<p>Equity — Jurisdiction—Taxpayer’s bill — Municipalities—Issue of bonds — Election — Alleged invalid election — Collateral review of other court proceedings — Bill for injunction — Refusal of injunction.</p> <p>1. Courts of equity in this State have no jurisdiction save that expressly conferred upon them.</p> <p>2. There is no jurisdiction in equity to contest the result of an election held to determine whether or not the debt of a municipality may be increased.</p> <p>3. Equity will not restrain the issuance of bonds by a municipality, after the election court has certified that the electors have assented to an increase of the debt, for any reason which relates simply to the conduct of the election.</p> <p>4. In statutory proceedings, not in accordance with the course of common law, no right can be exercised save such as is given hy the statute.</p> <p>5. As the Act of April 20,1874, P. L. 65, provides no method for contesting the result of an election on the question of an increase of a municipality’s indebtedness, there can he no contest thereof.</p> <p>6. The judgments and decrees of the courts in such proceedings cannot he collaterally reviewed by proceedings in equity.</p> <p>7. A bill filed by a taxpayer in his own name and right, and not on behalf of himself and other taxpayers, is not a taxpayer’s bill, and no relief can be granted thereunder regarding matters in which all the taxpayers generally are interested.</p>

<p>Appeal, No. 57, Jan. T., 1918, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1917, No. 4025, affirming order of Workmen’s Compensation Board, allowing claim, in case of Sorine P. Jensen v. The Atlantic Refining Company.</p> <p>Appeal from Workmen’s Compensation Board. Before Monaghan, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the appeal. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 289, Jan. T., 1918, by defendants, from judgment of C. P. Bedford Co., Jan. T., 1917, No. 389, on verdict for plaintiff, in case of Clarence L. Shaver, Trustee in Bankruptcy of George Sewell Mowry v. Lena M. Mowry and G. S. Mowry (also written George Sewell Mowry).</p> <p>Ejectment for lands in Bedford County.</p> <p>The facts appear in the following opinions of Bailey, P. J., on defendant’s motion for judgment n. o. v.</p> <p>The facts upon which this contest arises are briefly these: On or about the 10th of December, 1910, Robert Allison and his wife entered into an' agreement with George Sewell Mowry and Lena M. Mowry, his wife, to sell the real estate, the title to which is in dispute here, being a certain tract of land located in West St. Clair Township, Bedford County, Pennsylvania, containing 82 acres and 65 perches. The purchase price agreed upon was $4,620.00. The installments of the purchase-money paid, not quite equalling the purchase-money agreed upon, were as follows: $500.00 on the 10th day of December, 1910, the date of the signing of the agreement; $2,000.00 on the 23d of May, 1911, and $2,000.00 on the 21st of June, 1913. It was conceded by the defendant, at the trial of this case, that this purchase-money was from funds of the husband, George Sewell Mowry. On the 21st of November, 1912, the said grantors, made, executed and delivered to Lena M. Mowry and George Sewell Mowry a deed to this real estate, thus vesting the legal title in them by entireties.</p> <p>On the 25th day of February, 1914, George Sewell Mowry, the husband, was adjudicated a bankrupt in the District Court of the United States for the Western District of Pennsylvania, and on the 24th of March, 1914, the plaintiff in this action, Clarence L. Shaver, was appointed his trustee in bankruptcy. The trustee, on behalf of the creditors existing at the time of the transfer of this real estate, instituted this proceeding upon the theory that if actual fraud was not present the transfer was void from legal fraud and the title and right to possession was in George Sewell Mowry in severalty by reason of the disproportion between his assets and his debts.</p> <p>This action was initiated by bill in equity filed by Clarence L. Shaver, trustee, praying for the reformation of a certain deed made by Robert Allison and wife to George Sewell Mowry and Lena M. Mowry, alleging that the title had been taken in George Sewell Mowry and Lena M. Mowry by entireties in fraud of the creditors of the said George Sewell Mowry. The bill also contained a prayer for general relief. The defendant, Lena M. Mowry, in her answer averred that the plaintiff had an adequate remedy at law. The plain purpose of this bill in equity was the recovery of the title in George Sewell Mowry, and- the right of possession by the trustee of the real estate therein described. Entertaining that view of the bill we certified the case to the law side of the court as an action of ejectment under the Act of June 7, 1907, P. L. 440. Upon the trial of this action the jury rendered a verdict for the plaintiff. The defendant having submitted a point for binding instructions, which we refused, filed her motion for judgment for the defendant non obstante veredicto, under the Act of April 22, 1905, P. L. 286.</p> <p>The defendant upon her motion for judgment non obstante veredicto, raises two questions; first, that the trustee in bankruptcy has no standing to maintain this action of ejectment for the benefit of those creditors existing at the time the alleged fraudulent conveyance was made, since, under the bankruptcy acts a pro rata distribution must be made to all the general or unsecured creditors whether they were existing at the time of the transfer or subsequent thereto, and, second, that the trustee cannot maintain this action because the real estate, the title to which is in dispute, never stood in the name of the bankrupt, and, therefore, under section 70, sub-section A-4 of the Bankruptcy Act of July 1,1898, the title was not vested in the trustee.</p> <p>The first position needs no discussion other than to say that the trustee in bankruptcy is a trustee for all creditors and the questions of the classification of creditors and of distribution are entirely for the Federal Courts and with which we have no concern in this action and which in no way can affect the right of the trustee to maintain this suit. The second position overlooks sub-section 5-A of section 70 of the Act of 1898, under which section the trustee is vested with the title of the bankrupt in any property “which might have been levied upon and sold under judicial process against him.” If any of his creditors could have levied upon and sold his interest in the land in dispute, the title, thus capable of being levied upon, was vested in the trustee by virtue of the adjudication in bankruptcy.</p> <p>As it was practically conceded in this case, on the part of the defendant, that the money used in the purchase of the real estate in dispute was the money of the husband, George Sewell Mowry, surely the title so acquired, in a contention between the wife and then existing creditors of the husband, would be deemed to be in the husband, if insolvent, and if in the husband, the trustee in bankruptcy had this title and the right to possession.</p> <p>In addition to this, the defendant, when the bill in equity was filed in this case, asserted in her answer that the plaintiff had an adequate remedy at law and it was then argued by counsel for the defendant that that remedy was by an action in ejectment on the law side of the court. We agreed with this contention and certified the case as an action in ejectment, by decree dated the 11th day of November, 1916, under the Act of June 7,1907, P. L. 440. The defendant, therefore, cannot now be heard to successfully contend that the plaintiff has no standing to maintain this action of ejectment if the facts averred in the bill were established by competent and admissible evidence.</p> <p>The court below rendered the following opinion on defendant’s motion for a new trial:</p> <p>We propose to discuss only two questions upon this motion.</p> <p>The first is the contention on the part of the defendant that we fell into error in fixing the date upon which the jury were to determine whether or not the payment for title by George Sewell Mowry in the real estate in dispute was constructively fraudulent as to his creditors, as being the date when the legal title passed by deed to Lena M. Mowry and George Sewell Mowry as tenants by entireties. The defendant contends that the critical date should be the date when the article of agreement was entered into by the parties.</p> <p>The second question is whether or not we were in error in placing the burden of establishing the insolvency of the husband, at the time of the transfer of the real estate, upon the wife, the defendant in this action. As to the first question we say that it cannot be successfully argued that the date to which the jury’s attention should have been called on the question of the disproportion between the assets, of the husband and his debts was the 10th day of December, 1910, when the article of agreement was made. At that time only $500 of the purchase-money was paid. It would certainly be most unfair to the existing creditors who' became creditors between that date and the 21st of June, 1913, to permit the husband to make payment of the larger part of the purchase-money and take title practically in the name of his wife, entirely immune from attack by these creditors. It seemed proper, therefore, that the date to be considered by the jury was that time about when the final payment was made, and to this time their attention was directed.</p> <p>It having been conceded by the defendant, at the trial, that her husband’s money had paid for this farm and there being no sufficient evidence of actual fraud to submit to the jury, the question was one entirely of constructive fraud, whether or not the debts of the husband were so disproportionate to his estate at the time of the transfer of the legal title as to make the taking of title in the name of the wife or by entireties such a hindering, delaying and defrauding of creditors as to be void from legal fraud.</p> <p>On the second question as to the burden of proof, the defendant has contended in this motion that there was no proper evidence of the debts of the husband at the time of this transfer offered at the trial; that the testimony of the referee in bankruptcy was inadmissible as to the debts proven before him. We see no reason why his testimony would not be proper, he having before him and refreshing his recollection from the schedule of debts which had been adjudicated in his tribunal and which were in existence at the time of the alleged fraudulent transfer. If, however, this testimony was not admissible, the defendant is not in a position to complain because there was no serious issue raised at the trial as to the amount of the husband’s debts. There was a substantial agreement on both sides aS to the aggregate sum. In addition to that, it. is clear that, in the contest between the wife and her husband’s creditors, in order to relieve the transaction from taint of constructive fraud, the burden is upon the wife to show that her husband’s debts were not out of proportion to his estate at the time of the conveyance. This burden the defendant did not even attempt to meet. There was a large volume of entirely competent and admissible evidence taken at the trial entirely outside of the testimony of the referee in bankruptcy, showing that the husband was heavily indebted at the time of this transfer. In that situation the burden was clearly upon the wife to show that the total indebtedness was not so large as to create the inference of constructural fraud: Woolston’s Appeal, 51 Pa. 452.</p> <p>We are satisfied that there is no reason shown to entitle this defendant to a new trial.</p> <p>Verdict for plaintiff and judgment thereon. Defendant appealed.</p> <p>APPELLANT’S STATEMENT OP QUESTIONS INVOLVED:</p> <p>Without proof of actual fraud can a trustee in bankruptcy recover in ejectment land paid for by the bankrupt if title is originally taken in the names of bankrupt and wife where it appears that subsequent creditors will benefit by the recovery? In such' case if the land is purchased by written contract and paid for in installments is it sufficient to show bankrupt’s insolvency on the date of final payment and where is the burden of proof? Without laying the foundation for its introduction can indebtedness of bankrupt be proved by testimony of the referee based on claims allowed by him?</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 answers to points.</p>

Appeal, No. 72, Jan. T., 1918, by defendant, from order of C. P. Clearfield Co., Sept. T., 1915, No. 308, refusing petition to stay writ of fi. fa., in case of Deposit National Bank v. W. T. Hay. Petition for order to stay writ of fi. fa. Before Bell, P. J. The opinion of the Supreme Court states the facts. The court refused to stay the writ as to certain land standing in the name of Matilda Hay. Defendant appealed. Error assigned was the order of the court.

<p>Appeal, No. 75, Jan. T., 1919, by defendants, from decree of C. P. Erie Co., Feb. T., 1918, No. 4' awarding an injunction in case of T. A. Lamb, D. A. Sawdey, A. W. Hayes, E. P. Selden, George D. Selden, and C. E. Bacon, taxpayers of the City of Erie, for themselves and all other taxpayers of the City of Erie who desire to join with them in these proceedings, v. The City of Erie, Miles B. Kitts, Mayor; C. L. Baker, Superintendent of Accounts and Finance; W. D. Kinney, J; Emil Gross and Henry Kessler, Councilmen of the City of Erie; Theodore Eichhorn, Francis T. Nagorski and Thomas Mehaffey, Councilmen-elect of the City of Erie, and George E. Cantrell, Inc.</p> <p>Bill in equity for an injunction. Before Rossiter, P. J.</p> <p>The opinion of the Supreme Court states the facts:</p> <p>The court on final hearing enjoined defendants from making payments under the contract referred to in the opinion of the Supreme Court. Defendants appealed.</p> <p>Errors assigned were in dismissing exceptions to various findings of fact and conclusions of law and the decree of the court.</p>

<p>Equity — Equity practice — Certification to law side — Injunction —Bonds—Mandatory preliminary injunction — Final decree — Appeals — Practice, Supreme Court — Assignment of error — Publicity —Act of June 7, 1907, P. L. MO.</p> <p>1. No act of assembly allows an appeal from a refusal to dissolve a preliminary injunction.</p> <p>2. On an appeal from the granting of a preliminary injunction, the court will not consider the question as to whether or not the case should have been certified to the law side of the court, under the Act of June 7, 1907, P. L. 440, if the court below was not moved to certify it thereto.</p> <p>3. Such an application, even if made, would be interlocutory, and not the subject of an appeal until after final decree.</p> <p>4. A complaint that an injunction bond contains but one surety, will not be considered, where, without objection, a new bond with two sureties has been substituted.</p> <p>5. An appeal from the granting of a preliminary injunction must be promptly made. Ordinarily it will be dismissed, as of course, if delayed beyond the time when the case might have been decided on final hearing.</p> <p>6. It is only in extreme eases that a mandatory preliminary injunction is proper.</p> <p>1. On a motion to dissolve a preliminary injunction, unaccompanied by a motion to extend it, the court can only dissolve or refuse to dissolve it, or modify it by making it less stringent.</p> <p>8. That which is in effect a final decree cannot be entered on a preliminary hearing, except with consent of the parties.</p> <p>9. An assignment alleging error in refusing to dissolve an injunction because but one surety was given on the bond and also because of delay in final hearing, is bad for duplicity.</p>

<p>Appeal, No. 106, Jan. T., 1919, from order of C. P. Lackawanna Co., Oct. T., 1918, No. 109, setting aside returns of certain election districts on appeal from recount of the county commissioners, in the case of Computation of Vote Cast at the Primary Election held May 21, 1918, for the Office of Senator of Lackawanna County.</p> <p>Appeal from election contest. Before Newcomb, J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>The court found that Albert J. Davis was duly nominated as a candidate for senator for the Twenty-second Senatorial District. David W. Phillips appealed.</p> <p>Errors assigned, among others, were in setting aside the returns of certain election districts, and in refusing to investigate the alleged frauds in the election precincts covered by the petition of appellant.</p>

<p>Appeal, No. 89, Jan. T., 1919, by defendants, from decree of C. P. Luzerne Co., March T., 1918, No. 8, continuing a preliminary injunction, in case of Charles P. Holden v. George J. Llewellyn and Frank Carlucci.</p> <p>Bill in equity for an injunction.</p> <p>Motions to continue injunction and to certify the case to the law side of the court. Before Strauss, J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court continued the preliminary injunction which it had issued and refused to certify the case to the law side of the court. Defendants appealed.</p> <p>Errors assigned were in awarding a preliminary injunction, in refusing to certify the case to the law side of the court, and in continuing the preliminary injunction.</p>

<p>Mines and mining — Conveyance of coal — Surface support — Construction of deed.</p> <p>A grantee of coal underlying the surface incurs no liability for injury to the surface by mining operations where the grant provides that he shall have a right to enter upon the land and to mine and remove tbe coal without any liability for damages arising or resulting from the exercise of such rights and privileges.</p>

<p>Practice, G. P. — Statement of claim — Pleading statutes — Master and servant-^-Assumption of risk — Bituminous Mine Act of June 9,1911, P. L. 756.</p> <p>1. Where a statement of claim sets forth facts bringing the case within the purview of an act of assembly, but does not specify the act, and defendant takes no steps to have the statement made more specific, he cannot object to the trial of the case in accordance with the provisions of the act.</p> <p>2. Where a motion for binding instructions is made uppn the ground that no act of assembly permits a recovery, it is sufficient on appeal to show that there is an act of assembly which permits it.</p> <p>3. Where there is ample evidence to sustain plaintiff’s contention it would be error to refuse to submit the case to the jury, although there is other evidence as to the cause of the injury from which an opposite conclusion might he reached.</p> <p>4 Assumption of risk is not a defense under the Bituminous Mine Act of June 9, 1911, P. L. 756.</p>

<p>Contracts — Promissory notes — Alteration by holder — Judgment for defendant n. o. v.</p> <p>The addition of a seal after one of the signatures to a promissory note, hy the agent of the holder, without the knowledge or authority of the maker, is a material alteration which avoids the instrument.</p>

<p>Appeal, No. 177, Oct. T., 1918, by defendant, from decree of C. P. Clarion Co., Dec. T., 1916, No. 3, awarding injunction, in case of J. M. Kelly v. T. W. Phillips Gas and Oil Company.</p> <p>Bill in equity for an injunction.</p> <p>The facts appear in the following findings of facts and conclusions of law of Sloan, P. J.:</p> <p>1. That the plaintiff is a resident of Limestone Township, Clarion County, Pennsylvania. Answer: Affirmed.</p> <p>2. That the defendant, the T. W. Phillips Gas & Oil Company, is a corporation organized and existing under the laws of the State of Pennsylvania with its principal office at Butler, Pennsylvania. Answer: Affirmed.</p> <p>3. That J. M. Kelly, the plaintiff, is the owner and in possession of the property, the subject of this suit, which is situate in Limestone Township, Clarion County, Pennsylvania, and bounded and described as follows: On the north by lands of Lizzie Smail, on the east by lands of James Herman and Mrs. Martin Miller, on the south by lands of Frogtown School District and Heirs of Samuel Hepler, on the west by lands of Mrs. Smail, and containing eight acres, more or less. Answer: Affirmed.</p> <p>4. That J. M. Kelly was the owner of the said premises on the 16th day of October, 1913, on which said day he executed and delivered a lease to the T. W. Phillips Gas & Oil Company therefor. Answer: Affirmed.</p> <p>5. That the said lease contained, inter alia, the following provision:</p> <p>“The said first party to have free use and enjoyment of the premises except the parts necessary for drilling and operating, and no wells to be drilled within two hundred feet of the buildings now on the lease without the consent of said first party.” Answer: Affirmed.</p> <p>6. That on the day of the execution and delivery of the lease for oil and gas purposes herein mentioned by plaintiff to defendant, there was located on the premises a dwelling house occupied by plaintiff with his family, and a barn and an outbuilding used by plaintiff. Answer: Affirmed.</p> <p>7. That oh' the 4th day of October, 1916, defendant, by its workmen, agents, employees and contractors, went upon the premises and set a stake for the location of a well thereafter..to be drilled on said premises within 153 feet of the house located thereon. Answer: Affirmed.</p> <p>8. That immediately after the stake referred to in paragraph seven of these requests, the defendant, by its agents, contractors, employees and workmen, went upon the premises and caused to be erected thereon a derrick and to be drilled thereon a well for gas and oil purposes, which said well was drilled to the gas producing sand and completed on Sunday, November 19, 1916,. and is within the area prohibited by the terms of the lease and less than 200 feet from the buildings that were on the lease on the 16th day of October, 1913, and which are the same buildings that are now on said premises. Answer: Affirmed.</p> <p>9. That the plaintiff, on the 4th day of October, 1916, notified Mr. H. A. Fulton, who was in charge of the drilling operations of .the defendant company on the said premises, that the rig that they were then about to construct was less than 200 feet from the buildings. Answer: Affirmed.</p> <p>10. That J. M. Kelly, plaintiff, did not consent to the drilling of the well where it is now located and where it was drilled, which is less than 200 feet of the buildings on the premises. Answer: Affirmed.</p> <p>11. That the drilling of said well and the operation thereof where located interfere with the free use and enjoyment of the premises by plaintiff. Answer: Affirmed.</p> <p>12. That on October 4,1916, at the time that the stake was set by J. A. Henninger for the location of the well which was thereafter drilled on the premises within 153 feet of the house located thereon, he, the said Henninger, being then and there the agent and employee of the defendant for the purpose aforesaid, knew that the said stake set for the location of the well was less than 200 feet from the buildings on the premises. Answer: Affirmed.</p> <p>The plaintiff has filed eight requests for the conclusions of law, which requests and respective answers thereto are as follows:</p> <p>1. The T. W. Phillips Gas & Oil Company, having undertaken to operate the premises under the lease of October 16,1913, were bound to operate under the terms thereof, and could not lawfully, without consent of the lessor, drill a well within 200 feet of the buildings on the premises, nor could it lawfully interfere with the free use and enjoyment of that part of the premises by the lessor except in so far as the same be necessary for the operation (exclusive of drilling) of the leasehold estate in accordance with the usual and ordinary requirements in operations of that character. Answer: Affirmed.</p> <p>2. The preponderance of the evidence in the case, establishing the fact that lessor protested against the drilling of the well where located prior to the time of the commencement of the drilling thereof, the defendant has no-equity, now to claim, that, by reason of its expenditure of money, plaintiff is estopped from claiming his right to prohibit it from using the well for the purpose of taking gas from the premises. Answer: Affirmed.</p> <p>3. The defendant entered upon the prohibited area with full knowledge of the fact that it was so doing, and was not induced either to begin or to continue the operation of drilling this well by any act or conduct on the part of the plaintiff; therefore, the taking possession of premises in the manner in which defendant so took possession was in violation of the contractual rights of the parties as set forth in the lease of October 16, 1913, and the occupation of the premises by the defendant was a trespass ab initio. Answer: Affirmed.</p> <p>4. “Consent” implies some positive action involving submission and is used in cases of yielding that which the party has a right to withhold and supposes a physical power to act, a moral power of acting and a serious determination and free use of such powers. Answer: Affirmed.</p> <p>5. The burden of proving that the lessor consented to the occupation of the premises and the drilling within the 200-foot limit set by the lease, is on the defendant, and it having failed to prove the fact by sufficient evidence, the court must grant the prayer of petitioner and an injunction must issue. Answer: Affirmed.</p> <p>6. The possession of the defendant being a trespass ab initio and a continuing one, is the subject and within the scope of the equity powers of this court and an injunction will be granted. Answer: Affirmed.</p> <p>7. The T. W. Phillips Gas & Oil Company, defendant, having violated the contractual relations between it and J. M. Kelly, the plaintiff, as in and by the conditions of the lease between the said parties is provided, should, together with its agents and employees, be enjoined perpetually from going on the premises described in the said lease and bounded and described generally as follows : On the north by lands of Lizzie Smail on the east by lands of James Herman and Mrs. Martin Miller, on the south by lands of Frogtown School District and heirs of Samuel Hepler, on the west by lands of Mrs. Smail, and containing eight acres, more or less, for the purpose of laying lines to the well on said premises described, and from taking and carrying away, or in anywise interfering with the natural gas that is or may hereafter be produced from said well located less than 200 feet from the buildings on said tract of land. Answer: Affirmed.</p> <p>8. The T. W. Phillips Gas & Oil Company, its agents and employees, shall be enjoined perpetually from in any manner interfering with the free use and enjoyment of the premises described in paragraph seven preceding as provided in the lease between the parties except the parts necessary for drilling and operating, and no wells to be drilled within 200 feet of the buildings now on the lease without the consent of first party. Answer: Affirmed.</p> <p>The court dismissed the exceptions to the findings of fact and conclusions of law and awarded the relief prayed for. Defendant appealed.</p> <p>Errors assigned were in dismissing exceptions to findings of fact and conclusions of law and the decree of the court.</p>

<p>Appeal, No. 116, Oct. T., 1918, by defendant, from judgment of O. P. Somerset Co., Sept. T., 1917, No. 82, on verdict for plaintiff, in case of Cora D. Knepp v. Baltimore & Ohio Bailroad Company, lessee and Operator of the Pittsburgh & Connellsville Bailroad.</p> <p>Trespass to recover damages for personal injuries. Before Ruppel, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $3,160 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., and instructions to the jury.</p>

Appeal, No. 98, Oct. T., .1918, by defendant, from the judgment and sentence of O. & T., Armstrong Co., Dec. Ses., 1917, No. 1, on verdict of guilty of murder of the first degree, in case of Commonwealth of Pennsylvania v. Luther Knox. Indictment for murder.

<p>Appeal, No. 66, Oct. T., 1918, by plaintiff, from order of O. P. Armstrong Co., Dec. T., 1917, No. 118, dismissing appeal from order of Workmen’s Compensation Board, in case of Nellie Lenora Davis v. W. H. and S. A. Smith.</p> <p>Appeal from order of Workmen’s Compensation Board. Before King, P. J.</p> <p>The opinion of the Supreme Court states the facts.</p> <p>The court dismissed the appeal. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Equity — Jurisdiciion-^Bemedy at law — Borough ordinance — Annexation of land — Court of Quarter Sessions — Act of May H, 1915, P. L. 812.</p> <p>A court of equity has no jurisdiction of a suit in equity by a property owner to enjoin a municipality from proceeding under an ordinance providing for the annexation of part of his land to the borough, since Section 9 of Chapter 7, Article I, of the Borough Act of May 14,1915, P. L. 812, provides a remedy by complaint in the Court of Quarter Sessions in such a case, and this remedy is exclusive.</p>

<p>Negligence — Automobiles—Injury caused while under control of third person — Liability of owner.</p> <p>1. An owner of an automobile who lends it with his chauffeur to another is not liable for damages resulting from its negligent operation while it is being used in the business and is under the control of the borrower.</p> <p>Evidence — Witnesses—Galling adverse party to testify — Act of May 23, 1887, P. L. 158.</p> <p>2. One who calls the. adverse party to testify as if under crosssxamination under the provisions of the Act of May 23, 1887, P. L. 158, although not concluded by the testimony in the sense that he cannot call witnesses to contradict it, cannot select so much of the testimony as is favorable, and reject that which is unfavorable, when he has not attempted to contradict the unfavorable testimony by other witnesses.</p>

<p>Appeal, No. 66, Jan. T., 1919, by defendant, from judgment of C. P. No. 3, Philadelphia Co., March T., 1916, No. 4939, for plaintiff in case of The Pennsylvania Company for Insurances on Lives and Granting Annuities, Trustee under the will of Mary J. Miles, deceased, v. City of Philadelphia.</p> <p>Appeal from award of viewers .assessing damages for taking of property in opening up a street. Before . Davis, J. ‘</p> <p>The opinion of the Supreme Court states the facts.</p> <p>Verdict for plaintiff for $483,854.67 and judgment thereon. Defendant appealed.</p> <p>Errors assigned, among others, were sustaining objections to witness testifying as expert; and the charge of the court, applying the Interest Act of June 1, 1915, P. L. 685.</p>

<p>Appeal, No. 64, Oct. T., 1918, by plaintiff, from order of O. P. Indiana Co., No. 170, June T., 1917, reducing the award of compensation made by Workmen’s Compensation Board in case of Mrs. Felix Rakie v. Jefferson & Clearfield Coal & Iron Co.</p> <p>Appeal from award of Compensation Board. Before Langham, P. J.</p> <p>The facts are stated in the opinion of the Supreme Court.</p> <p>The court sustained the appeal. Plaintiff appealed.</p> <p>Errors assigned were in sustaining appeal from the award of the Workmen’s Compensation Board and in reducing the amount awarded.</p>

<p>Pleading — Contracts—Evidence—Variance between allegata and probata.</p> <p>1. Where a statement of .claim alleges a contract indefinite as to time, it is not supported by proof of a contract terminable at any time by the action of one of the parties thereto.</p> <p>2. In such case the allegata and probata do not agree, and a judgment must be entered for defendant.</p>

<p>Building contracts — Architects—Extra compensation — Revised plans — Acting as arbitrator — Use of old material — “Dost of worlc” as basis for fixing compensation.</p> <p>1. An architect is not entitled to recover for services in preparing revised drawings for changes in the plans requested' by the owner in the course of building, under a contract providing that the architect “agrees” to furnish all necessary plans and specifications to erect the building for a commission of five per cent, upon the cost of the work where it appeared that the changes made during the progress of the building increased the total cost from $59,000 to $114,880, and that plaintiff had already received a commission on the latter amount as his compensation.</p> <p>2. An architect is not entitled to extra compensation for services rendered as an arbitrator in passing upon questions in dispute between the contractor and the owner where plaintiff agreed, in consideration of a certain percentage of the total cost of the building, to prepare the contracts and perform the “usual and customary services of an architect,” and where it appeared that he did in fact prepare the building contract and inserted the usual clause that questions in dispute were to be referred to him as architect, and that his decision should be conclusive.</p> <p>3. An architect undertaking to prepare plans and supervise the construction of a building at a certain percentage of the “cost of the work” is not entitled to an additional commission on the value of the material of the old building which was given the contractor to be used by him in the new building, it appearing that the architect had knowledge that the old building material was to be used and that the specifications prepared by him contained the provision that the old material “may be used in the new work upon the approval of the architect.”</p> <p>4. An architect is not entitled to extra compensation because there was delay in the construction of the building where the contract fixes no time within which the services were to be completed.</p>

<p>Workmen’s compensation — Negligence—Findings—Evidence— Declarations — Hearsay—Res gestee — Widow—Minor children.</p> <p>1. An award of damages to a widow of a workman, for the death of her husband, will be sustained where it appears that the findings of fact by the referee sustained by the Workmen’s Compensation Board and the Court of Common Pleas and based on sufficient evidence, were in effect, that on a May 4th the deceased was a man of good health and great strength; that on that day he was engaged in moving a heavy piano; that his suffering dated from that time until his death on May 20th, that he continued to work until May 11th when he was compelled to give up because of his being incapacitated ; that his physician found that he was suffering severe pain in his side, down through the abdomen to the leg; that after his death it was found that he had an abscess under one of the kidneys, and that this abscess had produced pneumonia, which had caused his death; that his physician had reported to the Bureau of Vital Statistics that death had resulted from the abscess due to the injury received on May 4th, and that the physician for the insurance company which carried the insurance for the employer, testified that the abscess was the result of an injury, and that the abscess could not have had any natural cause, since the circumstances justified the inference that the accident produced the abscess, and that the abscess caused the pneumonia which resulted in death.</p> <p>2. Such an award will be sustained without taking into consideration declarations of the decedent made on the day of the accident shortly after it occurred and on the day after the accident.</p> <p>3. In claims made under the Workmen’s Compensation Act, liberality in the admission of proof and the inferences reasonably to be drawn therefrom are to be kept clearly in mind, but the referee and the Workmen’s Compensation Board have no right to find material facts on hearsay evidence alone, but the findings must rest upon such relevant and competent evidence of sound probative character as remains after excluding from consideration the hearsay testimony, whether such testimony be either circumstantial or direct.</p> <p>4. Under the Workmen’s Compensation Act an award to a widow does not preclude an award also to the minor children of a decedent workman.</p>

<p>Appeal, No. 91, Oct. T., 1918, by defendant, .from order of C. P. Cambria Co., Sept. T., 1914, No. 346, discharging rule to open judgment in case of D. P. Weimer, Assignee of Nancy C. Bowman v. Noah Biesecker, Fred W. Biese'cker, Executor of Noah Biesecker, formerly Fred W. Biesecker, Guardian of Noah Biesecker.</p> <p>Rule to open judgment. Before Stephens, P. J.</p> <p>Error assigned was order discharging rule to open judgment.</p>

<p>Practice, C. P. — Voluntary nonsuit — Counterclaim—Notice to file answer — Act of May 14, 1915, P. L. 488.</p> <p>Where in an action of assumpsit the defendant files an affidavit of defense containing a counterclaim more than four months before the Act of May 14, 1915, P. L. 483, was passed, and nearly a year before it went into effect, and the plaintiff suffers a voluntary nonsuit after the act has become effective, the defendant cannot, afterwards, when the case is on trial, offer evidence as to the counterclaim, if it appears that he had not complied with Section 15 of the Act pf 1915, requiring him to serve a notice on the plaintiff to file a reply to the counterclaim within fifteen days after service thereof. The ease stood as if the Act of 1915 had not been passed.</p>

<p>Negligence — Infant—Collision between truclc and boy’s sled— Coasting — Contributory negligence — 1Evidence—Case for jury.</p> <p>1. In an action to recover damages for the death of a child six years old, killed while coasting in a collision between his sled and defendant’s truck, the question of the negligence of the driver of the truck is for the jury, where the evidence for plaintiff, although in some respects contradicted, tended to show that the accident happened between three and four o’clock in the afternoon; that the boy was coasting down grade on a sidewalk on the right-hand side of a street, which crossed the street at right angles along which the truck was approaching; that the truck was driven on the left side of the street within two or three feet of the curb; that its proper place was on the right side of the street; that the sled and truck both moving at the rate of six to eight miles an hour, collided practically at the instant the sled left the sidewalk and entered the crossing; that according to plaintiff’s witnesses, although contradicted, the driver did not sound his horn; that the driver knew that children were coasting at this intersection, and that the driver could have seen the child when the truck was at least fifty feet from the crossing.</p> <p>2. In such a case the parents’ contributory negligence is also a question for the jury, where the evidence tends to show that the boy was sent by his mother on an errand to a store, a block and one-half from house; that the mother had forbidden him to coast down the hill; that he had taken his sled without his mother’s knowledge; that the neighborhood was a residential one without car tracks on either of the streets where the accident occurred; that there was little traffic on them except by pedestrians; that the boy was in the habit of going alone to a neighboring school, and was familiar with the neighborhood; and that there was nothing to show that the boy was exposed to any greater danger when he went on the errand than when he went to school.</p> <p>3. A driver of a motor vehicle who is aware of the presence of children coasting down a grade on an intersecting street is bound to exercise unusual care and watchfulness to avoid a collision while crossing such street.</p> <p>Appeals — Supreme Qourt — Assignments of error — Questions involved.</p> <p>4. Assignments of error raising questions not included in the appellant’s statement of questions involved will not be considered.</p>

<p>Appeal, No. 168, Oct. T., 1918, by plaintiff, from order of O. P. Cambria Co., Dec. T., 1913, No. 18, striking proceedings from record in case of Homer D. Williams and John F. Williams for use of George Panagotacos, v. A. Notopolos.</p> <p>Motion to strike case from trial list and dismiss proceedings. Before Stephens, P. J.</p> <p>See Williams et al. v. Notopolos, 247 Pa. 554, and Same v. Same, 259 Pa. 469.</p> <p>Error assigned was order striking the case from trial list and dismissing proceedings.</p>

<p>Railroads — Negligence—Sparlcs—Refusal of train crew to put out fire — Scope of employment.</p> <p>1. Where a fire starts on land contiguous to a short coal branch of a railroad and extends to land beyond and destroys timber thereon, the owners of the timber cannot recover from the railroad company if there is nothing to show that the company negligently operated its trains, and the only negligence averred is that the crew of a train refused, when notified of the fire, to leave their train and help extinguish it.</p> <p>2. There is no duty upon the railroad company under such circumstances to render aid in putting out the fire; nor can it be held liable for the negligence of the crew in refusing to aid, inasmuch as the extinguishment of fires is not within the scope of the employment of a train crew.</p> <p>3. An employer is not liable for any act or omission of an employee that is not within the scope of his employment.</p>

<p>Appeal, No. 36, Jan. T., 1919, by defendants, from decree of C. P. Centre Co., Dec. T., 1914, No. 2, in equity in case of Emily Harris Warfield, Administratrix of Frank Warfield, deceased, v. Thomas F. Kelly, Isaac B. Norris, William K. Wrigley, Augustus Z. Wolf, William Wingert, W. H. Mclntire, Elizabeth S. Meyer, Henry C. Quigley, Samuel Saylor, Nellie M. Love, C. S. Russell and Kato Coal Company, of whom Thomas F. Kelly, Isaac B. Norris, William K. Wrigley, Augustus Z. Wolf, William Wlngert and Kato Coal Company were appellants.</p> <p>Bill in equity for an accounting of the proceeds of cancellation of a stock certificate of 240 shares of stock of the Kato Coal Company, and of all moneys paid into the Kato Coal Company by Frank Warfield, and as amended for a decree declaring null and void the forfeiture of stock, and to compel the issuing of 65 shares of the Kato Coal Company’s stock to plaintiff, and for an accounting of the profits of the Kato Coal Company for a purpose stated. Before Johnson, P. J., specially presiding.</p> <p>The court entered a decree in favor of the plaintiff, according to the amended prayers of the bill.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 55, Oct. T., 1918, by defendant, from judgment of O. P. Jefferson Co., Jan. T., 1915, No. 46, on verdict for plaintiff in case of Christiana Stabl v. Buffalo, Rochester & Pittsburgh Railway Company.</p> <p>Appeal from report of viewers. Before Corbet, P. J.</p> <p>The facts appear by the opinion of the Supreme Court.</p> <p>At the trial the defendant presented the following points:</p> <p>1. “There being no evidence offered in this case to show the market value of the property in question at the time of the location and appropriation of the defendant’s right of way over the same, to wit, in 1882, or how the market value thereof was affected by said location and appropriation, at the time the same was made, the verdict of the jury must be for the defendant.” Answer: Refused (9).</p> <p>3. “If, as alleged by the plaintiff, the title to this land was vested in Henry Shaffer and his five minor children at the time the railroad company made its location and appropriation, and there being no evidence that the plaintiff has since acquired, by assignment or otherwise, the right of the other four children to their proportionate shares of said damages, the plaintiff cannot maintain this action, and the verdict of the jury must be for the defendant.” Answer: Befused. (11).</p> <p>4. “It appearing from the undisputed evidence that the railroad company did not enter upon the land under its right of eminent domain, but under and pursuant to the deed from Henry Shaffer offered in evidence, and that it has been in the open, continuous, exclusive and adverse possession of said land, under said deed, since 1882, or for a period of about thirty-three years before the petition in this case was filed, the title to said land was, at that time, vested in the defendant by more than twenty-one years adverse possession, and the plaintiff cannot maintain this action, having no title to or interest in the land appropriated by the railroad company, and the verdict of the jury must be for the defendant.” Answer: Befused (12).</p> <p>Verdict and judgment for plaintiff for $3,300. Defendant appealed.</p> <p>Errors assigned, among others, were (1) allowance of amendment; (9, 11, 12) answers to points above, quoting them, and (13) refusal of binding instructions for defendant.</p>

<p>Appeal, No. 146, Oct. T., 1918, by plaintiff, from decree of O. P. Jefferson Co., Aug. T., 1918, No. 3, dismissing bill in equity in case of T. W. Phillips Gas & Oil Company v. Hillis Lingenfelter, John Alcorn, Frank Jordon, C. A. Morris and Fred Fike, School Directors of Oliver Township, Jefferson County, Penna., and George W. Wearing.</p> <p>Bill in equity for an injunction. Before Corbet, P. J.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 82, Oct. T., 1918, by defendant, from judgment of O. & T. Cambria Co., June T., 1917, No. 11, on verdict of guilty in case of Commonwealth v. Camolite Divomte. Before Brown, C. J., Stewart, Frazer, Walling, Simpson and Fox, JJ.</p> <p>Indictment for murder. Before Stephens, P. J.</p> <p>At the trial the prisoner set up self-defense to the killing of John Cononie.</p> <p>Verdict of guilty in the first degree, upon which sentence was passed.</p> <p>Error assigned, among others, was (4) the portion of the charge quoted in the opinion of the Supreme Court, and there held to be erroneous.</p>

Appeals, Nos. 45 and 46, Jan. T., 1919, by defendant, from judgment of C. P. Northumberland Co., Sept. T., 1915, No. 486%, on verdict for plaintiff in case of Jacob Sebastian in his own right and Jacob Sebastian as father and next friend of Peter Sebastian, a minor, v. Philadelphia & Reading Coal & Iron Company. Trespass to recover damages for personal injuries to a boy seventeen years old.

Appeal, No. 47, Jan. T., 1919, by defendant, from judgment of C. P. Northumberland Co., May T., 1915, No. 268, on verdict for plaintiff in case of Joseph Fordv. Philadelphia & Reading Coal & Iron Company. Trespass to recover damages for personal injuries. Before Moser, J. The circumstances of the accident are stated in the opinion of the Supreme Court. Verdict and judgment for plaintiff for $11,686. Defendant appealed.

Appeal, No. 4, Jan. T., 1919, by defendant, from decree of C. P. Lackawanna Co., Oct. T., 1916, No. 12, directing an accounting in case of F. R. Davidson v. C. P. Davidson. Bill in equity for an account, delivery of stocks and payment of money. Before O’Neill, J. Testimony was taken on behalf of the plaintiff. Defendant offered no evidence.

<p>Appeal, No. 115, Oct. T., 1918, by plaintiff, from judgment of O. P. Westmoreland Co., Aug. T., 1917, No. 273, on verdict for plaintiff in case of Minnie F. Matthews and J. H. Matthews, her husband, in right of said wife and for her use, and Nora A. Fox, v. Logan Rush and W. E. Rice, partners, trading as Tyrone Coal Company.</p> <p>Trespass for alleged wrongful mining of coal. Before Copeland, P. J., specially presiding.</p> <p>At the trial the jury returned a verdict for plaintiff for $2,201.19, on which judgment was entered.</p> <p>Errors assigned were various rulings on evidence and instructions, sufficiently appearing by the opinion of the Supreme Court.</p>

<p>Appeal, No. 167, Oct. T., 1918, by defendant, from order of O. P. Somerset Co., Feb. T., 1918, No. 76, awarding possession of coal in case of Daniel M. Eeisinger v. Garrett Smokeless Coal Company, a corporation, et al.</p> <p>Proceedings under the Act of April 20, 1905, Sec. 12, P. L. 239, to secure possession of coal sold at a sheriff’s sale under foreclosure proceedings on a mortgage.</p> <p>The question involved was whether or not a lease of the coal held by appellant was divested by the sale. The material facts are set forth in the opinion of the Supreme Court.</p> <p>Error assigned was order awarding possession of the coal.</p>

<p>Appeal, No. 62, Oct. T., 1918, by plaintiff; from decree of O. P. Somerset Co., Equity Docket, 1916, No. 8, on bill in equity in case of Michael J. Shaulis v. Quemahoning Creek Coal Co.</p> <p>Bill in equity for an injunction to restrain the defendant from hauling over plaintiff’s surface, coal mined upon land adjacent to the coal underlying plaintiff’s tract. Before Bailey^ P. J., specially presiding.</p> <p>The case turned on the construction of a deed for coal with mining privileges. The material portions of the deed are quoted in the opinion of the Supreme Court.</p> <p>The court refused the injunction. Plaintiff appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

<p>Promissory notes — Inconsistent due dates — Patent ambiguity— Parol evidence — Nonsuit.</p> <p>In an action on a promissory note under seal containing two inconsistent due dates, one reading “one day after date I promise to pay” and the other “to be paid at my death,” a nonsuit is properly entered, where the parol evidence of surrounding circumstances and collateral facts offered by the plaintiff to explain the patent ambiguity in the instrument, fails either to make plain the real due date of the note, or to shed such light thereon as to enable the court to determine which of the two dates must be accepted.</p>

<p>Decedents’ estates — Liens for debts — Continuance of liens — • Lunacy — Acts of April 4,1197, P. L. 296; February 24,1884, P. L. 77; June 8,1898, P. L. 892, and June 14,1901, P. L. 562 — Statutes —Repeal.</p> <p>1. The Acts of February 24, 1834, P. L. 77; June 8, 1893, P. L. 392, and June 14, 1901, P. L. 562, relating to the continuing of liens against the real estate of a decedent, repeal the proviso in the fourth section of the Act of April 4, 1797, P. L. 296, affecting persons non compos mentis.</p> <p>2. When the surety of a committee of a lunatic dies, and thereafter the committee absconds with the money of the lunatic, the real estate of the deceased surety is discharged from the lien of the indebtedness of the committee, if a statement is not filed in the office of the prothonotary within two years after the death of the surety.</p>

<p>Appeal, No. 180, Oct. T., 1918, by plaintiff, from order of O. P. Lawrence Co., Dec. T., 1912, No. 23, entering judgment for defendant n. o. y. in case of Elwilda Smith y. Standard Steel Car Company.</p> <p>Trespass to recover damages for death of plaintiff’s husband. Before Emery, P. J.</p> <p>At the trial the jury returned a verdict for plaintiff for $8,337.50. On motion of defendant the court entered judgment for defendant n. o. v.</p> <p>Error assigned was the order of the court.</p>

<p>Appeals, Nos. 6 and 7, Oct. T., 1918, by defendant, from judgment of C. P. Beaver Co., March T., 1916, No. 209, on verdict for plaintiff in case of Albert Reda, a minor, by Ms father and next friend, Pascal Reda, and Pascal Reda in his own right, v. Mayer China Company.</p> <p>Trespass to recover damages for personal injuries. Before Baldwin, P. J.</p> <p>The case turned on whether the plaintiff was employed by defendant, and whether the defendant was guilty of negligence, and whether plaintiff was guilty of contributory negligence.</p> <p>Verdict and judgment for Pascal Reda for $2,000 and for Albert Reda for $7,250. Defendant appealed.</p> <p>Error assigned, among others, was in refusing judgment for defendant n. o. v.</p>

<p>Negligence — Street railways — Charge—Statement of claim — Probata and allegata.</p> <p>1. The defendant on appeal in a negligence case cannot complain that the trial judge failed to explain to the jury the relative weight of the testimony of interested and disinterested witnesses, and to caution them against an arbitrary disregard of the weight of the evidence, where the record discloses that there was no great preponderance of defendant’s proof over that of the plaintiff, although the number of defendant’s witnesses were greater; and especially is this the case where no request to so charge was made.</p> <p>2. In an action against a street railway company to recover damages for personal injuries sustained in a collision between plaintiff’s wagon and a car of defendant, where the statement alleges (1) excessive speed; (2) failure to give warning, and (3) failure to allow plaintiff time to remove his wagon from the track, and the trial judge withdraws the first two charges from the jury because of insufficient evidence, defendant cannot allege as error that the jury was permitted to decide the case on a charge of negligence not included in tbe statement, where the court on sufficient evidence submits the third charge to the jury.</p> <p>Practice, O. P. — Amendment—Exceptions.</p> <p>3. A defendant cannot complain of the refusal of a trial judge to allow an amendment of the record to show that exceptions were in fact taken and allowed at the close of the charge, although omitted in the stenographer’s transcripts, where the court orders the rule for amendment to be converted into a motion for leave to take exceptions, and grants the motion to file the same nunc pro tunc and make it part of the record.</p>

<p>Leases — Boundaries—Evidence—Oil and gas lease — Acreage— Recording leases — Declarations—Patent ambiguity.</p> <p>1. Evidence of tbe acreage of land in a deed or lease, especially where tbe number of acres is followed by tbe words “more or less,” has little weight as against specific boundaries; but where a doubt exists as to the actual location of tbe boundary and the writing contains no words to definitely fix tbe line of either metes and bounds jtr monuments on tbe ground, evidence of acreage becomes a material factor in the' determination of tbe intention of tbe parties as to tbe boundaries.</p> <p>2. One who claims title to property through another, regardless of the nature of the transaction, whether by act of the parties or the act of law, is bound by earlier acts or declarations of his predecessor and takes title cum onere. Under this rule all acts and declarations of the owner of land made during the continuance of his interest tending to show the character or extent of his possession or interest, or the location of boundaries, are competent evidence not only against himself but also against those who claim through or under him.</p> <p>3. In an action of ejectment for fourteen acres of oil and gas land the defendants claimed under a lease which fixed the northern boundary as the remaining land of the lessor and stated the tract contained “fifty acres more or less.” The plaintiffs claimed by a subsequent lease from the Same lessor. In this lease the acreage was stated to be “185 acres more or less” and the southern boundary was stated to be line of the land included in the earlier lease to defendants. Neither lease gave courses, distances or monuments on the ground as to this boundary line. At the time the second lease was executed the first had not been recorded but was placed on rec.ord subsequent to the recording of the second. The dispute in the ejectment was as to the location of the boundary line between the leases. Held, (1) that defendants were entitled to show by parol evidence that the acreage in plaintiff’s lease exceeded the quantity included within the boundaries of such lease as contended for by defendants; (2) that defendants were entitled to show declarations of lessors prior to the execution of the lease to defendants with respect to the location of the boundary line in dispute; and (3) that this was not a ease of patent ambiguity which excluded parol evidence, inasmuch as such evidence is admissible, not to contradict the writing, but to explain its terms by giving locality and identity to the subject-matter of the contract.</p>

<p>Constitutional law — State not liable for torts of officers — Act of May SI, 1911, P. L. 468 — Suit against State — Special legislation— Act of May 10,1917, P. L. 159 — Constitution, Art. I, Secs. 11 and 26; Art. Ill, Sec. 7.</p> <p>1. The State is not liable for the torts of its officers and employees in the absence of a statute providing that it shall be.</p> <p>2. The Act of May 31, 1911, P. L. 468, does not make the State liable for the negligence of its officers and employees in the matter of the construction, reconstruction, maintenance and repairs of the highways taken over in accordance with the provisions of that act.</p> <p>3. The. State being sovereign cannot be sued without her consent.</p> <p>4. The Constitution of the State having provided that her consent may be. given by statute, the constitutional restrictions upon the subject of legislation must be observed in the passage of the consenting statute.</p> <p>5. Art. I, See. 26, of the Constitution renders inviolate the preceding sections of that article in so far as they express the inalienable rights of the people, but does not give to the legislature the right to pass enabling acts under section 11 thereof, save in the manner and subject to the limitations and restrictions imposed upon legislative action.</p> <p>6. A special act of assembly creating a liability against the State where none existed before, and authorizing suit to recover for the liability thus created, is unconstitutional. For such a double purpose a general statute is required.</p> <p>7. The Act of May 10, 1917, P. L. 159, authorizing plaintiff to sue the State, is unconstitutional so far as relates to the liability attempted thereby to be imposed on the State.</p>

<p>Constitutional law — Special legislation — Act of April 19, 1917, P. L. 86 — State highways — Negligence—Suit against State.</p> <p>The Act of April 19, 1917, P. L. 86, authorizing Harry C. Swift to sue the State, is unconstitutional for the reasons set forth in Collins v. Commonwealth of Pennsylvania, supra.</p>

<p>Appeal, No. 69, Oct. T., 1918, by defendant, from judgment of O. P. Butler Co., Dec. T., 1914, No. 45, on verdict for plaintiff in case of James Leslie Riddell, by Ms next friend, John B. Riddell, v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Reiber, P. J.</p> <p>The case turned on whether the plaintiff in accepting benefits from the company’s relief association had not barred himself from recovering damages in an action at law.</p> <p>Verdict and judgment for plaintiff for $14,222.50. Defendant appealed.</p> <p>Error assigned was order refusing judgment for defendant n. o. v.</p>

<p>Appeal, No. 94, Oct. T., 1918, by defendant, from judgment of O. P. Butler Co., March T., 1917, No. 32, on verdict for plaintiffs in case of W. V. Powell et al. v. W. A. Schcenfeld.</p> <p>Ejectment for oil and gas land in Parker Township. Before Reiber, P. J.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Verdict and judgment for plaintiffs. Defendant appealed.</p> <p>Errors assigned were in admitting the evidence of W. V. Powell, and various instructions.</p>