Volume 263 — Pennsylvania State Reports

<p>Wórhmerís compensation — Findings — Review — Employee of 'borough — Policeman—Act of June 2,1915, P. L. 7S6.</p> <p>1. Under the Workmen’s Compensation Act of June 2, 1915, P. L. 736, the courts cannot review the findings of fact of the referee and the Workmen’s Compensation Board.</p> <p>2. Under the act if an award to a widow ceases before decedent’s ■ children reach sixteen years of age, the latter are entitled to compensation until they severally reach that age.</p> <p>3. A borough policeman is an employee of the borough within the meaning of that act.</p>

<p>Appeal, No. 167, Oct. T., 1917, by plaintiff, from order of C. P. Washington Co., May T., 1917, No. 415, sustaining exceptions to decision of Workmen’s Compensation Board thus disallowing claim in case of Frances Messer v. Manufacturers Light & Heat Company and Hartford Accident & Indemnity-Company, Insurance Carrier.</p> <p>Appeal from decision of Workmen’s Compensation Board. Before Irwin, J.</p> <p>Errors assigned were in sustaining the exceptions and dismissing the appeal.</p> <p>If an employee during the work period is injured while on an errand, or while performing his regular duties, he is entitled to compensation; and compensation will be allowed even though he was not performing his regular duties if he was acting in the employer’s interests: Bridge v. Lomas, 69 Pa. Superior Ct. 109; Poluskiewicz v. Philadelphia & Reading Coal & Iron Co., 257 Pa. 305; McCauley v. Imperial Woolen Company, 261 Pa. 312,</p>

<p>Husband and wife — Marriage—Evidence—Presumption.</p> <p>1. Where a man marries in pursuance of a license, and dies about a year afterwards, his wife by such marriage is entitled to administration on his estate, as against another woman claiming that she was the wife of the decedent, if it appears that the claimant’s proof of a former actual marriage of the decedent with herself depends on her own testimony and that of another interested witness, that the proof of general reputation as hhsband and wife, is contradicted by many witnesses who testified that the general reputation was that they were not married, that claimant was married to another man after the date of her alleged marriage to decedent, and was living with such man at the time of decedent’s death. The fact that the decedent addressed a letter to the claimant as his wife, and that he started divorce proceedings against her, which he discontinued, are immaterial.</p> <p>2. In such a case the marriage of decedent a y.ear before Ms death, to the woman with whom he was living at the time of his death and the marriage of the .claimant to the man with whom she was living at the date of decedent’s death, will both be presumed valid, and such presumption is not overcome by the evidence offered by the claimant.</p>

<p>Equity — Jurisdiction—Adequate remedy at law — Forfeiture of oil and gas lease — Landlord cmd tenant.</p> <p>1. A bill in equity is properly dismissed, where it appears that plaintiffs by virtue of certain oil and gas leases stood towards the defendant in the relation of a landlord, and by virtue of a later deed to a predecessor in title of the defendant in the relation of a tenant in common with him of an undivided one-half interest in the leased premises, and that the only purpose of the suit was to obtain a decree cancellingrthe leases on the ground of forfeiture for violating covenants therein. The remedy of the plaintifE is by a common law action of ejectment.</p> <p>2. In such a case the relation of the parties to each other as tenants in common, is wholly irrelevant matter, without bearing, even remote, on the issue.</p> <p>3. Where a lessee acquires, after the date of the lease, an undivided one-half interest in the leased premises, the lease does not, by mere operation of law, merge in the fee subsequently obtained. '</p>

<p>Mines and mining — Mining rights — Deed—Agreement of sale— Vendor and vendee — Option on coal.</p> <p>Where an owner of 167 acres of coal gives to another the option to purchase the same, and in the option there are enumerated certain mining rights and privileges, and subsequently, in pursuance of a parol modification of the option, the owner executes a deed for only 150 acres of the coal to the grantee with the same mining rights and privileges in the deed as were stated in the option, the grantee or his successor in the title, cannot claim, in the absence of fraud, accident or mistake, to exercise the mining rights and privileges mentioned in the option and deed, within the limits of the fifteen acres which were excluded from the deed.</p>

<p>Decedents’ estates — Ownership of certificate of ■deposit — Gift inter vivos — Delivery—Jurisdiction—Competency of witness — Evidence.</p> <p>1. Where certificates of deposit are in the actual possession of a decedent at the time of her death, but are claimed by the executrix as a gift inter vivos from the decedent, the Orphans’ Court has jurisdiction to determine in limine the question of the ownership of the certificates. Cutler’s Estate, 225 Pa. 167, explained and distinguished.</p> <p>2. If the court reaches the conclusion that the gift was imperfect, because not executed, the right to take jurisdiction follows necessarily, depending of course upon the soundness of its conclusion, which is subject to revision by the appellate court.</p> <p>3. In such a case the executrix is not a competent witness in her own behalf; but even if she were, her testimony would be insufficient to establish her claim, if it is in effect that she was the housekeeper of the testatrix who was her aunt; that the latter had promised her a house; that on her declining the house, her aunt, three years before she died, came to her one day with an envelope containing the certificates in question, saying “as long as you do not want the house......these are the certificates for you as I intend fixing up my affairs,” that testatrix took the certificates from the envelope and gave them to her, but immediately took them back, placed them in the envelope and put them back in the drawer where she had always kept them; that subsequently the niece took the certificates, as her aunt’s agent, to a bank to collect the interest; that the bank then issued new certificated in the name of the aunt, and that these were replaced in the same drawer where the old certificates had always been kept.</p> <p>4. A gift is a voluntary transfer of a chattel completed by delivery of possession. It is the fact of delivery that converts the unexecuted and revocable purpose into an executed and' therefore irrevocable contract,</p>

<p>Executors and administrators — Accounts—Auditors—Delay of proceedings before auditor — Surcharge—Gosts.</p> <p>1. Where exceptions to an executor’s account have been passed' upon by three auditors in succession, and the proceedings have been prolonged for four years in the distribution of a small estate, the executor will not be surcharged for any of the costs, if it appears that the responsibility for the delay attached to the failure of the first auditor to rule properly upon an objection made to the competency of a witness.</p> <p>Evidence — Competency of witness — Party dead — Cross-examination.</p> <p>2. Where a claimant again§t a decedent’s estate is called as a •witness in his own behalf and testifies to facts occurring since the death of the deceased, and, on cross-examination, is interrogated as to matters occurring in the lifetime, he becomes a competent witness for himself as to all relevant and material matters; but this rule does not apply to a case where a witness is called on his own behalf and is permitted against objection to testify fully as to matters that had occurred in the lifetime of the deceased. To hold that a cross-examination of the witness as to such matters was a waiver of tbe objection to bis competency, and accredited bim as a witness, would be a perversion of tbe rule robbing it of all reason.</p>

<p>Workmen’s compensation — Findings of fact — Permanent injuries —Review.</p> <p>The findings of a referee affirmed by the Workmen’s Compensation Board “that the condition of the claimant’s hands, as the result of said accident, constitutes a permanent loss of the use of such members,” is a fact found, and not a conclusion of law, such as may be reviewed on appeal.</p>

<p>Appeals, Nos. 148, 149 and 150, Oct. T., 1918, by Mildred B. Thistle, Helen Thistle Lambie and Catherine Thistle Connell, from decree of O. C. Washington Co., Feb. T., 1918, No. 40, dismissing exceptions to auditor’s report in Estate of Joseph L. Thistle, deceased,</p> <p>Exceptions to auditor’s report.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report, and in decreeing distribution.</p> <p>The daughters were entitled to income as legatees: Manderson v. Lukens, 23 Pa. 31; Eau’s Est., 254 Pa. 464; Letchworth’s App., 30 Pa. 175; Long’s Est., 228 Pa. .594; Smith’s App., 23 Pa. 9; McClure’s App., 72 Pa. 414; Packer’s Est., 246 Pa. 116; Carstesen’s Est., 196 Pa. 325; Smith’s Est., 226 Pa. 304; Martin’s Est., 185 Pa. 51.</p> <p>There was no valid trust: Neel’s Est., 252 Pa. 394.</p> <p>John R. MoGreight, .with him G. E. V. Acheson, J. Boyd Grumrine, W. A. E. Mcllvaine and Earry L. Wit-Hams, for appellee. — The income, the accumulation of which violates the Act of 1853, must be distributed as of the time it accrues: Rhodes’ Est., 147 Pa. 227; Howell’s Est., 180 Pa. 515.</p> <p>The interests bequeathed by the testator in item seventh of his will are not vested but contingent: Paxson’s Est., 241 Pa. 452; Battenfeld v. Kline, 228 Pa. 91.</p>

<p>Appeal, No. 157, Oct. T., 1918, by Scott A. McKeown, from decree of O. O. Washington Co., Aug. T., 1917, No. 92, dismissing exceptions to audi: tor’s report in Estate of Sara McKeown, deceased.</p> <p>Exceptions to report of J. Boyd Orumrine, Esq., Auditor.</p> <p>The opinion of the Supreme Court states the case.</p> <p>Errors assigned were in dismissing exceptions to auditor’s report.</p> <p>The gains or profits on the sales totalling $121,-545, in view of the terms, of the will and in justice to the life beneficiaries, should be distributed ás income in order to carry out the plain intent of the testatrix, and cannot be added to the corpus of the trust estate except in violation of the rule against accumulations: Park’s Est., 173 Pa. 190; Quay’s Est., 253 Pa. 80.</p> <p>The gain or profit of $2.96 a share, or of $11,840, which represents surplus and undivided profits earned since the creation of the trust estate, which came into the hands of the trustee upon the sale of the 4,000 shares of pure oil stock made in liquidation of 'the entire assets of that company, is income, distributable to the life beneficiaries as other income in accordance with the terms of the will: Earp’s App., 28 Pa. 368; Smith’s Est., 140 Pa. 344; Stokes’s Est., 240 Pa. 277; Sloan’s Est., 258 Pa. 368; Matter of Rogers, 22 N. Y. App. Div. 428.</p> <p>The gain or profit of $78,000 on the sale of the 4,000 shares of pure oil stock results, in effect, from a liquidation of that company and is distributable as other income to the life beneficiaries.</p> <p>The distribution as made of the $121,545 to the corpus of the trust estate violates the rule against accumulations : Mitcheson’s Est., 15 Philadelphia 523; 11 W. N. C. 547; Rhodes’ Est., 147 Pa. 227; Martin’s Est., 185 Pa. 51; Edwards’ Est., 190 Pa. 177; Grim’s App., 109 Pa. 391.</p> <p>cited: Graham’s Est., 198 Pa. 216; Kemble’s Est., 201 Pa. 523.</p>

<p>Practice, C. P. — Service of process — Foreign insurance company —Corporations—Insurance—Constitutional law — Sheriff’s return— Act of June 1,1911, P. L. 607, 611.</p> <p>1. The Act of June 1, 1911, P. L. 614, does not provide that process against a foreign insurance company can be only served upon the insurance commissioner.</p> <p>2. If it did it would violate Art. XVI, Sec. 5, of the Constitution of the State.</p> <p>3. Where an act of assembly is reasonably capable of two constructions, one of which would make it unconstitutional, the other construction must be adopted.</p> <p>4. Under Article XVI, Section 5, of the Constitution, foreign corporations must have an authorizéd agent, upon whom process may he served, at every place in the Commonwealth where it carries on business.</p> <p>5. A sheriff’s return of service' cannot be contradicted.</p> <p>Judgment — Opening judgments — Pleadings.</p> <p>6. Upon a petition to open or set aside a judgment, ordinarily only such questions will be considered as are raised by the pleadings ; and this applies to the record on appeal.</p> <p>7. Where the averments of a petition are denied in the answer, evidence is required to overcome .the effect of the answer.</p> <p>Appeals — Striking off judgments — Act of May 20,1891, P. L. 101.</p> <p>8. The decision of a lower court “opening, vacating or striking off” a judgment, is reviewable by either the Supreme or Superior Court, under the provisions of the Act of May 20,1891, P. L. 101.</p>

<p>Appeals, Nos. 83, 84, 85 and 86, Oct. T., 1918, by defendants, from judgment of O. & T. Allegheny Co., June Sessions, 1917, No. 12, on verdict of guilty in case of Commonwealth v. Charles Russogulo, Joseph Russogulo, Jack Guastaferra and Angelo Guastaferra.</p> <p>Indictment for murder. Before Brown, J. At the trial Charles Russogulo, Joseph Russogulo and Jack Guastaferra, were convicted of murder of the first degree; Angelo Guastaferra was convicted of murder of the second degree. Judgments of sentences were passed.</p> <p>Errors assigned were as follows, the request for an exception, as quoted in the 3d assignment of error, being repeated in the other assignments:</p> <p>3. The court erred in its charge to the jury in saying:</p> <p>“The burden rests on the defendants alleging self-defense to establish it by the preponderance of the evidence.”</p> <p>Council for defendant requests a general exception.</p> <p>Exception allowed and bill sealed.</p> <p>„ 4. The learned court erred in its charge to the jury in prominently presenting the theory and strong features of the prosecution and ignoring those of the defendants, and in failing to present, as a connected whole, the case of the defendants with the law applicable thereto.</p> <p>Exception allowed and bill sealed. (Page 28.)</p> <p>5. The court erred in its charge to the jury on evidence of good reputation of the defendants in saying:</p> <p>“A man of good reputation may be guilty of a crime, an assault, a killing, and, if guilty.beyond a reasonable doubt, he is not to be acquitted because preceding the commission of the crime he had borne an excellent reputation for peace.”</p> <p>Exception allowed and bill sealed.</p> <p>6. The court erred in its charge to the jury in failing to define murder at common law, and explain to the jury the essential elements of the crime of murder.</p> <p>Exception allowed and bill sealed.</p> <p>7. The court erred in its charge to the jury in failing to-instruct the jury as to the presumption of innocence of the defendants.</p> <p>Exception allowed and bill sealed.</p> <p>8. The court erred in its charge to the jury in saying:</p> <p>“The law imposes upon every one the duty of keeping' his passions under reasonable restraint, and, therefore, if one lash himself into a fury at some slight provocation, or without provocation and without reasonable excuse, he cannot defend himself against murder because of such passion, nor can he, by the recollection of some past injury or insult, or black-hand demand for money, work himself into a heat over it, and so excuse himself. The act, to reduce the killing from murder to manslaughter, must be upon a sudden and sufficient provocation.”</p> <p>“If the evidence^ such as the aiming of a gun or pistol at the vital part, shows an intent to kill or to do great bodily harm, no words of profanity, reproach, or abuse or slight assault are provocation sufficient to free the party killing from the guilt of murder. Otherwise, every vile slander or epithet or slight assault or black-hand demand for money would be a warrant to kill. There is no such warrant in law.”</p> <p>Exception allowed and bill sealed. (Page 28.)</p> <p>9. The court erred in its charge to the jury in saying in answer to the oral request made by defendants counsel:</p> <p>“By Mr. Bobb: I will ask your honor to say to the jury that if Joe emerging suddenly from the house believed his brother’s life was in danger, he had the right to shoot.</p> <p>“By the Court: It would be at least manslaughter.</p> <p>“By Mr. Bobb: He would have the right to shoot.</p> <p>“By the Court: It would be at least manslaughter.</p> <p>“By Mr. Bobb: It might be self-defense too.</p> <p>“By the Court: It might be self-defense as to all; but, if there was no self-defense at all at the start, it might reduce his grade to manslaughter. In other words, under, these circumstances, you cannot kill a man without being an offender under the law.”</p> <p>Exception; allowed and bill sealed.</p> <p>10. The court erred when it refused to grant a new trial upon after-discovered evidence..</p> <p>11. The Commonwealth failed to establish the corpus delicti.</p> <p>The omission of the word “fair” was improper :• Com. v. Palmer, 222 Pa. 299.</p> <p>The court gave the impression to the jury that the testimony of the defendants was of little weight, if not altogether unreliable: Goersen v. Com., 99 Pa. 400; Com. v. Meads, 29 Pa. Superior Ct. 330; Minick v. Gring, 1 Pa. Superior Ct. 484; Com., v. Colandro, 231 Pa. 343; Com. v. Goldberg, 4 Pa. Superior Ct. 153.</p> <p>The court erred in its charge to the jury in failing to instruct the jury as to the presumption of innocence of the defendants: Com. v. Greene, 227 Pa. 86.</p> <p>In inserting the words “black-hand demand for money” in the charge it has placed heavier demands upon defendants than are required of them.</p>

<p>Workmen’s compensation — Course of employment — Findings— Appeal — Act of June 8,1915, P. L. 786.</p> <p>1. The mere fact that each finding of a referee in proceedings under the Workmen’s Compensation Act, is not formally labelled by him, as a finding of fact or conclusion of law, in no way changes their actual character.</p> <p>2. Where a series of facts are found by the referee, showing, in themselves, that an employee was injured upon the premises of his employer, the lack of a formally stated conclusion that the injury so occurred, is not fatal to the referee’s adjudication.</p> <p>3. In a proceeding under the Workmen’s Compensation Act to recover damages for the death of a locomotive engineer, where it is claimed that the deceased had been discharged from the employment for the night, shortly before the accident, and the referee and the Workmen’s Compensation Board, after considering what was said and done at the time of the alleged dismissal, together with all the attending circumstances, concluded that deceased had neither been discharged nor quit his job, it is reversible error for the Court of Common Pleas, on appeal, to set aside such decision.</p>

<p>Appeal, No. 65, Oct. T., 1918, by plaintiff, from order of O. P. Allegheny Co., Jan. T., 1918, No. 1007, reversing decision of Workmen’s Compensation Board in case of Mary A. Flucker v. Carnegie Steel Company.</p> <p>Appeal from award of Workmen’s Compensation Board. Before Carpenter, J.</p> <p>Error assigned was order reversing the award.</p> <p>cited: McCauley v. Imperial Woolen Co., 261 Pa. 312; Cartin v. Standard Tin Plate Co., 263 Pa. 56.</p> <p>We have been unable to find a decision in any state which holds that the question as to whether an accident occurred in the course of employment is one of fact. On the other hand, the rule that the question is a mixed question of law and fact and reviewable by the courts, is well established: Foley v. Home Rubber Co., 89 N. J. Law 474; Smith v. Corson, 87 N. J. Law 118; Schmoll v. Weisbrod & Hess Brewing Co., 89 N. J. Law 150; Bryant v. Fissell, 84 N. J. Law 72.</p> <p>A conclusion of law, although made in the form of a finding of fact, may be reviewed: Smith v. Industrial Accident Commission, 26 Cal. App. Court 560.</p>

<p>Workmen’s compensation — Gourse of employment — Act of June 2, 1915, P. L. 786 — Findings of facts — Circumstantial evidence.</p> <p>1. Where a mechanical engineer employed on a salary, with no fixed hours of service, is instructed by his employer to go to a distant city 'to gather information for use in his employer’s steel plant, and on his return arrives at his station in a city at about eleven-thirty p. m., and while going from the station to his home is fatally injured by an automobile at a street crossing, the deceased will be deemed to have been injured in the course of his employment within the meaning of the Act of June 2, 1915, P. L. 736.</p> <p>2. Since, in such a case, the deceased was compelled to return to the city when he could not at once communicate with his superior, and had to stay somewhere until he could report, he cannot be charged with a departure from his employer’s service because, when hurt, he was going to his home for a lodging, rather than to an hotel.</p> <p>3. Under the Workmen’s Compensation Act, the compensation authorities whose duly it is to find the facts, may find them'either from direct proof, circumstantial evidence, or by inference from other facts.</p>

<p>Appeal, No. 11, Oct. T., 1918, by plaintiff, froxn decree of Superior Court, April T., 1917, No. 120, reversing decree of C. P. Allegheny Co., July T., 1916, No. 665, on bill in equity in case of Edward S. Nolan v. Edward P. Jones et al., and ÍJnion Storage Company.</p> <p>Appeal from Superior Court.</p> <p>The case turned upon the constitutionality of the Cold Storage A.ct of May 16, 1918, P. L. 216. See Nolan v. Jones, 67 Pa. Superior Ct. 130.</p> <p>Error assigned was the judgment of the Superior Court.</p> <p>Whether the act bears a substantial relation to the public health is a legal question : Mugler v. Kansas, 123 U. S. 623; Bryan v. Chester City, 212 Pa. 259; Railroad Commission Cases, 116 U. S. 307; Powell v. Pennsylvania, 114 Pa. 265.</p> <p>The act denies equal protection of the law and is class legislation: Sayre Borough v. Phillips, 148 Pa. 482; Geiger-Jones Co. v. Turner, 230 Fed. 233; Yick Wo v. Hopkins, 118 U. S. 356; Gulf, Colorado, Etc., Ry. Co. v. Ellis, 165 U. S. 150; Com. v. Zacharias, 3 Pa. Superior Ct. 264.</p> <p>Every presumption is in favor of the validity of an enactment of the State legislature: Butcher’s Union Slaughter House, Etc., Co. v. Crescent City Live Stock Co., Ill U. S. 746;. Naganab v. Hitchcock, 202 U. S. 473; 50 L. Ed. 1113.</p> <p>If there is a reasonable relation between the subject matter of this statute and the public health or welfare it is a proper exercise of the police power: Mugler v. Kansas, 123 U. S. 623; Munn v. Illinois, 94 U. S. 113; Lawton v. Steele, 152 U. S. 133; Powell v. Penna., 127 U. S. 678.</p> <p>The details of a statute exercising the police power are for the legislature, not for the court: Powell v. Pennsylvania, 114 Pa. 265; Com. v. Pflaum, 50 Pa. Superior Ct. 55.</p> <p>There is no denial either of the equal protection of the law or of due process of law in this statute: Mugler v. Kansas, 123 U. S. 623; Powell v. Pennsylvania, 127 U. S. 678; Savage v. Jones, 225 U. S. 501.</p> <p>The act does not violate the bill of rights: Kirby v. Penna. R. R. Co., 76 Pa. 506; Miller v. Cornwall R. R. Co., 154 Pa. 473; Powell v. Pennsylvania, 114 Pa. 265.</p>

<p>Railroads — Eminent domain — Damages — Farm land — Plan of lots — Boundaries—Riparian rights — Will — Conversion—Personal property — Delay of payment — Burden of proof.</p> <p>1. Where in proceedings to assess damages for widening a railroad company’s roadway, it appears that the company had originally located its right of way so as to divide the owners’ land into two portions, one a small tract, the other a large one on which farm buildings were located, both connected by a grade-crossing, and both continuously used for farm purposes, and that the smaller tract had been divided into lots on which some houses had been built, but no streets opened, the court commits no error in holding that in view of the use of both tracts as farm land, neither a conveyance of the whole tract by deed to the father of the present owners, nor the laying out of lots and sale of the same, operated as a severance necessitating the • assessment of the property as building lots, and that the owners’ damages should be based on a consideration of the market value of the remaining property as a whole for building lots or for any purpose to which it might reasonably be put.</p> <p>2. Where in' such a case the deed of the owners gave courses and distances and referred to monuments to define the eastern boundary line, without reference to a river as a boundary, the court commits no error in permitting the jury to consider the value of riparian rights on a river in assessing the damages, if it is shown that for over forty years the owners and their predecessors had been in actual adverse possession of the river bank, and, during that time, had exercised ownership over that part of the property, had used the river for various purposes, and had planted a row of willow trees along the bank to protect the land from washing.</p> <p>3. In assessing damages for land condemned by a railway company the jury may allow damages for delay where there is no evidence that the railway company had made an offer of compensation which had been refused by the owner, or that negotiations were had at any time between the parties for the purposes of settlement, or that the owner had made an extortionate or inordinate demand. The burden in such a case is on the company to show facts tending to excuse delay.</p> <p>4. Persons claiming title to land under a will, which directs the executors “if deemed best by them to sell town lots and convey land for public works” are proper parties to condemnation proceedings where such power has not been exercised by the executoi'3, since the direction in the will did not work a conversion of the property into personalty before the power was exercised and therefore the damages were payable to the devisees and not to the personal representatives.</p>

<p>Criminal law — Murder—Self-defense—Charge.</p> <p>A new trial will not be granted after a conviction in a murder case, on the ground that the trial judge’s instruction given to the jury after they had retired and had returned, disclosed error as to the law of self-defense, where it appears that the trial judge gave the instruction in answer to a request by a juryman for further instruction as to the two degrees of murder, and that he confined himself to the jury’s request, and correctly redefined the two degrees of murder without in any way departing from the correct instruction as to the law of self-defense, which he had given in his charge.</p>

Appeal, No. 180, Oct. T., 1917, by- defendant, from judgment of O. P. Allegheny Co., April T., 1915, No. 2541, on verdict for plaintiff in case of Margaret McCormick v. Allegheny County. Trespass to recover damages for personal injuries. Before Swearingen, J. At the trial the jury returned a verdict for $4,000.

<p>Appeal, No. 182, Oct. T., 1917, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1913, No. 244, on verdict for defendant in case of Joseph Exler v. Wickes Brothers.</p> <p>Trespass for the alleged unlawful removal of an engine from mortgaged premises. Before Carnahan, J.</p> <p>The court gave binding instructions for defendant. ■</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p> <p>One not made party to a replevin suit to recover property in which he claims an interest, heed not intervene: Northwestern State Bank of Hay Springs v. Silberman, 154 Fed. 809.</p> <p>A trustee in bankruptcy does not represent secured creditors and his acts or failure to act do not bind them: Dudley v. Easton, 104 U. S. 99; Keystone Brewing Co. v. Schermer, 241 Pa. 361.</p> <p>By reason of the prior proceedings in the bankruptcy court and the judgment in the replevin suit in the Court of Common Pleas, appellant’s right to maintain this action is barred: McKinzie v. Baltimore & Ohio R. B. Co., 28 Md. 161; In re Bothe, 173 Fed. 597; Vanderslice v. Knapp, 20 Kansas 647.</p>

<p>Appeal, No. 15, Oct. T., 1918, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1915, No. 83, on verdict for defendant in case of George Freeland v. Consolidated Ice Company.</p> <p>Trespass to recover damages for personal injuries. Before Brown, J.</p> <p>'At the trial the jury returned a verdict for defendant.</p> <p>On a .rule for a new trial, Shown, J., filed the following opinion:</p> <p>For twenty-six years, to the time of his injury, July 14, 1914, plaintiff, an intelligent man, had been employed— during the summer seasons — by the defendant company and other companies, as helper to drivers engaged in delivering ice to customers of the companies. On this 14th day of July he and the driver of defendant were delivering ice to Albert Brehm, at his place of business— the place of delivery being an opening in a wall, an opening seven feet above the level of the floor. To reach this opening, plaintiff, with a lump of ice weighing 100 pounds on his shoulder, proceeded up a four-foot ladder; and in the act of trying to deliver the ice into the opening he fell to the floor and was injured.</p> <p>With twenty-six years’ experience in the use of ladders in the line of his work he placed the ladder in the way he desired to use it — but in what way he placed it and put it, for his safety, is not clearly disclosed by the testimony. The driver, who was also carrying ice, was not present when plaintiff used the ladder and fell. The ladder was not in any way broken. How plaintiff slipped, or lost his balance, or what caused him to slip, or the ladder to slip, is the purest conjecture: Reeser v. Metropolitan Electric Co., 246 Pa. 27. The driver (Mr. Lewis) testified that he believed the ladder safe— intending to use it, and actually using it, shortly after the accident, in carrying up the ice and delivering it into the opening in the wall.</p> <p>In any aspect of the case plaintiff failed to establish with reasonable certainty any sole negligent act of defendant as a proximate cause of his injury.</p> <p>Plaintiff’s long skilled experience in handling and delivering ice gave him a knowledge of the danger, if any, incident to the use of the ladder — a knowledge equal, if not superior, to that of the driver: Card v. The Stowers Pork Packing & Provision Company, 253 Pa. 575. In delivering the opinion in that case Mr. Justice Walling said:</p> <p>“Plaintiff was a licensed engineer with several years’ practical experience. He knew the machinery and appliances with which he was working and the manner of doing the work; and better than anyone else the slippery condition of his shoes and of the place on which he stood; and knew it was dangerous and therefore assumed the risk.</p> <p>“‘Where risks incidental to employment, which are quite as well understood by the employee as by the employer, and from his familiarity with such risks such employee is equally able to measure the danger with his employer, no liability will attach to the employer for injuries sustained by the employee in consequence of exposure to such risks’: Dellasala v. Josephine Furnace & Coke Co., 242 Pa. 591.”</p> <p>New trial refused.</p> <p>Error assigned was in giving binding instructions for defendant and in refusing to submit the case to the jury.</p>

<p>Party-walls — Talcing down single wall — Consequential damages— Trespass — Common law — Insurer against damages — Negligence— Independent contractor — Police power — Eminent domain — Necessity — Menace from fire — Damnum absque injuria — Statutory construction — Pittsburgh Act of June 7, 1896, P. L. 186.</p> <p>1. The fundamental principles of the common law, while liable to expansion, are in essence unchangeable, but their applicability to given conditions necessarily varies according to changes wrought by usage or statutory enactment, and, consequently, what at one time was a trespass may not be so at a later date.</p> <p>2. After the necessity for party-walls in thickly populated districts became recognized and their construction authorized and regulated, an entry on adjoining property to construct a party-wall, while formerly a trespass, was no longer so.</p> <p>3. The right to build party-walls upon division lines between lots in certain of the cities of this State, while regulated by statute, has developed into the ordinary and natural way to use and enjoy real estate of that character, to ■ such an extent as to “become a settled rule of property.”</p> <p>4. It is a general rule of law 'that no one has a vested right to be protected against consequential injuries, arising from a proper exercise of rights by others, and this rule is peculiarly applicable to injuries resulting from the exercise of public powers.</p> <p>5. All eminent domain and police power cases involve an exercise of sovereignty, but many principles, restrictions and constitutional rules, applicable to eminent domain cases, are inapplicable to police power eases in general.</p> <p>6. The party-wall system rests on the police powers of the State, and, in the absence of statutory liability, injuries resulting from the proper exercise of the right to build a party-wall, are damnum absque injuria.</p> <p>7. It seems, but is not decided, that where such an operation of the police power amounts to the exercise of the right of eminent domain, the rules and principles commonly applicable to the latter class of cases apply, but not otherwise.</p> <p>8. The ever-present menace from fire, in thickly populated cities, justifies and sustains the party-wall system, and the legal results which flow therefrom, on the theory of inevitable necessity.</p> <p>9. The party-wall system would seem to be sustained also by the power of the government to prescribe public regulations for the better and more economical management of property of persons whose premises adjoin.</p> <p>10. The building-owner, or one at whose instance a party-wall is constructed, in accord with the Pittsburgh Act of June 7, 1895, P. L. 135, is not liable for consequential damages caused by the removal of the old single wall of the adjoining building, or for negligence where the work is done by an independent contractor, without supervision or interference by the building-owner.</p> <p>11. Since the building-owner is not under the liability of an insurer .to the adjoining owner, the established principles applicable to the defense of independent contractor govern.</p> <p>Constitutional law — Due course of law — Consequential damages —"Injury”—No limit of amount — Federal Constitution, Fourteenth Amendment — State Constitution, Article I, Section 11; Article III, Section %1; Article XVI, Section 8.</p> <p>12. The Fourteenth Amendment to the Federal Constitution, providing that no person shall be deprived of life, liberty or property, without due process of law, does not restrict the police powers of the State, which embrace the existing party-wall system, with its limitations on the rights of property.</p> <p>13. Article I, Section 11, of the State Constitution, providing that “every man for an injury done him in his lands, etc., shall have a remedy by due course of law,” does not give consequential damages for an act of sovereignty, police powers or otherwise, “injury” here meaning “legal injury.”</p> <p>14. Article XVI, Section 8, of the State Constitution, giving damages for property injured but not appropriated, does not apply to incidental losses occasioned through an exercise of power conferred in a police statute, not of the eminent domain class.</p> <p>15. Article III, Section 21, of the State Constitution, providing that no statute shall limit the amount to be recovered for injuries to property, does not have the effect of conferring a right of recovery where none otherwise exists.</p>

<p>Appeal, No. 34, Oct. T., 1918, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1915, No. 2019, for defendant n. o. v. in case of Samuel Mountain v. American Window Glass Company.</p> <p>Trespass to recover damages for personal injuries. Before Carpenter, J.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 38, Oct. T., 1918, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1915, No. 283, on verdict for plaintiff in case of Calvin Broce v. Seaboard Construction Company.</p> <p>Trespass to recover damages for personal injuries. Before Brown, J.</p> <p>Verdict and judgment for plaintiff for $7,500. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence as stated in the opinion of the Supreme Court; (4) refusal of binding instructions for defendant; and (5) refusal of defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No. 46, Oct. T., 1918, by defendant, from decree of C. P. Allegheny Co., Jan. T., 1914, No. 2310, on bill in equity in case of J. C. Mc-Quaid and The Pittsburgh Swing and Furniture Company by J. C. McQuaid, General Manager, v. W. H. Sturgeon and J. H. Watt.</p> <p>Cross-bill in equity for an accounting. Before Carpenter, J.</p> <p>The case turned upon the existence of a partnership between J. C. McQuaid, W. H. Sturgeon and J. H.</p> <p>Watt. The court found as a fact that such partnership existed, and entered a decree accordingly.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 58, Oct. T., 1918, by defendant, from decree of O. P. Allegheny Co., April T., 1917, No. 394, on bill in equity in case of William- E. Harmon et al. v. Wilhelm Burow.</p> <p>Bill in equity for an injunction to restrain the erection of a building. Before Carnahan, J.</p> <p>Error assigned was decree awarding injunction.</p>

<p>Appeal, No. 61, Oct. T., 1918, by defendant, from judgment of C. P. Allegheny Co., Jan. T., 1917, No. 534, on verdict for plaintiff in case of Kress House Moving Company v. George Hogg Company.</p> <p>Assumpsit for balance alleged to be due on a contract. Before Carnahan, J.</p> <p>Verdict and judgment for plaintiff for $1,832.68. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence, answers to points, and refusal of judgment for defendant n. o. v.</p>

<p>Appeals — Interlocutory order — Decree for accounting — Partnership — Act of June 2-t, 1896, P. L. 2h8.</p> <p>An appeal taken under the Act of June 24, 1895, P. L. 243, directing an Accounting in a partnership matter will he dismissed, where the record shows that the defendant was willing to account, but only from a certain date. An appeal lies under the act only where there is a denial of liability to account.</p>

<p>Appeal, No. 96, Oct. T., 1918, by defendant, from judgment of O. P. Allegheny Co., April T., 1918, No. 1102, sustaining demurrer by relator to return of an alternative writ of mandamus in the case of Commonwealth of Pennsylvania ex rel. Harry H. Rowand, District Attorney of Allegheny County, for the use of the School District of the Borough of West Homestead and all other school districts in said county similarly interested, v. Edward D. Friebertshauser, Treasurer of the County of Allegheny.</p> <p>Mandamus to compel county treasurer to pay dog taxes collected during year 1917 to the school district Before Carpenter, J.</p> <p>The court sustained a demurrer to defendant’s return. Defendant appealed.</p> <p>Errors assigned were the action of the court sustaining the' demurrer and in entering judgment for the relator.</p> <p>The Act of July 11,1917, P. L. 818, does not violate Art. Ill, Sec. 3 of the Constitution. The entire subject-matter of the act is clearly embraced in its title: Blood v. Mareelliott, 53 Pa. 391; Com. v. Green, 58 Pa. 226; Allegheny County Home’s Case, 77 Pa. 77; Com. v. Depuy, 118 Pa. 201; Com. v. Lloyd, 178 Pa. 308; Com. v. Henderson, 172 Pa. 135; Hays v. Cumberland'Co., 186 Pa. 109; Allegheny Co. v. Stengel, 213 Pa. 193; Allentown v. Wagner, 211 Pa. 210.</p> <p>The repeal of previous acts on the same general subject is always germane to the title of the act: Com. v. Moir, 199 Pa. 531.</p> <p>When an act covers a general subject and creates a new system to take the place of the existing one, provisions for temporary expedients to carry out the plan are germane to the title: Pittsburgh’s Petition, 217 Pa. 227; Minsinger v. Rau, 236 Pa. 327; Reber’s Petition, 235 Pa. 622.</p> <p>Section 15 of the Act of July 11,1917, P. L. 818, which directs that all money at present in the dog fund shall be turned into the county fund, is not retroactive and does not take away any vested right. The school district as a quasi corporation has no vested rights in a gratuity granted to it by the legislature, and the legislature can change its rights at will: Louisville & N. Ry. Co. v. Mottley, 219 U. S. 167; Mondou v. N. Y., N. H. & H. R. Co., 223 IT. S. 1.</p> <p>The legislative power to divert taxes from the purpose for which they were originally levied and to dispose of them in another and different manner is well settled: Supervisors of Sanilac County v. Auditor General, 68 Mich. 659; State ex rel. v. Graham, 16 Neb. 71; Cage v. Hogg, 20 Tenn. (Humphrey) 18; Farwel v. Benevolent Asso. of Paid Fire Dept., 1 111. App. 36; Taggart v. State ex rel., 112 Indiana 668 (10 N. E. 260); Richland County v. Village of Richland Center, 59 Wis. 591; State ex rel. Police Commissioners v. St. Louis County- Court, 34 Mo. 546.</p> <p>The legislature has the power .to legislate respectively on all matters, not penal nor in violation of contracts, not forbidden by the Constitution: Swartz v. Carlisle Boro., 237 Pa. 473.</p> <p>The rule is, especially as to the acts which provide for the assessment and collection of annual taxes, that a statute repealing former laws on the same subject does not abolish all rights and remedies under the repeal acts, if the legislative intent not to abolish 'them appears: Com. v. Mortgage Trust Co. of Penna., 227 Pa. 163.</p> <p>Laws are presumed to be prospective rather than retrospective : Com. v. Duffy, 96 Pa. 506.</p> <p>An act which gives in its title no notice of an intent to repeal a prior act or part thereof, is unconstitutional: Buth’s App., 10 W. N. C. 498; House of Befuge v. Luzerne Co.,.215 Pa. 429.</p> <p>So far as appears in the title the act is merely cumulative : Com. ex rel. v. Samuels, 163 Pa. 283.</p>

<p>Appeal, No. 120, Oct. T., 1918, by plaintiff, from judgment of C. P. Allegheny Co., Oct. T., 1917, No. 403, discharging rule for judgment for want of sufficient affidavit of defense in the case of J. D. O’Neil, Insurance Commissioner of Pennsylvania, acting by Thomas B. Donaldson, Special Deputy in Charge of the Liquidation of the American Union Fire Insurance Company, v. L. A. Burnett.</p> <p>Rule for judgment for want of sufficient ¿ffidavit of defense in action of assumpsit by insurance commissioner against defendant, as agent of an insolvent insurance corporation, to recover moneys received by him in satisfaction of mortgages owned by the corporation. Before Cohen, J. .</p> <p>The affidavit of defense alleged an amount in excess of the amount claimed in plaintiff’s statement by way of set-off, due defendant individually, as general agent of the corporation. The affidavit further alleged that the amounts collected by him were applied to the payment of his individual debt under the express authority and direction of the officers of the corporation.</p> <p>Error assigned was in discharging rule for judgment for want of sufficient affidavit of defense.</p> <p>One cannot set off his individual debt in a suit brought against him for trust funds in his hands: Hunter v. Henning, 259 Pa. 347.</p> <p>cited: Hibert v. Lang, 165 Pa. 439; Queen City Suspender Company v. Adamson, 7 Pa. C. C. R. 412; 24 W. N. C. 397; Martin v. Throckmorton, 15 Pa. Superior Ct. 632.</p>

<p>Negligence — Automobiles — Collision — Negligence of driver— Question for jury.</p> <p>The question of negligence of defendant’s chauffeur as the cause of a collision in which the plaintiff sustained injuries while a passenger in defendant’s autobus, is for the jury where there is evidence that the chauffeur saw the automobile truck with which he came in contact 45 feet away, coming out of an alley across his way; that he could have stopped within a few feet, but did not slacken his speed or give any signal, and that the machine he was driving ran into the side of the truck.</p>

<p>Wills — Rule in Shelley’s Case — Freehold estate — Income of trust —Active trust — Dry trust.</p> <p>1. The rule in. Shelley’s Case is not applicable unless under the deed or will a-freehold estate is vested in the first taker.</p> <p>2. Hence, when the interest of the first taker is only in the income of an active trust, the rule is not applicable, although the remainder is to his heirs.</p> <p>3. A trust is active where, either expressly or by necessary implication, the trustee has active duties to perform, however slight those duties may be.</p> <p>4. The rule in Shelley’s Case does not apply if the first taker is only given interest in a portion of the income of the property, contingent, as to amount, on the happening of certain stated events.</p>

<p>Insurance — Accident insurance — Change of occupation — Evidence — Proofs of loss — Question for jury.</p> <p>1. In an action on a policy of accident insurance refusal to admit in evidence affidavits attached to proofs of loss, for the purpose of proving that the insured was engaged in a hazardous occupation, is not prejudicial error, where the insurance company assumes the burden of proving that the insured was performing work pertaining to a more hazardous occupation than that for which he was insured and for that purpose called as a witness a person who had made one of the affidavits attached to the proofs of loss and it appeared that the affidavits contained no statements inconsistent with the testimony given by the witness.</p> <p>2. Issues arising out of the evidence as to whether the insured, at the time he was injured, had changed his occupation or was engaged in an act pertaining to an occupation more hazardous than that for which he was insured, are for the jury to determine under proper instructions.</p>

<p>Appeal, No. 73, Oct. T., 1918, by plaintiffs, from judgment of C. P. Allegheny Co., Jan. T. , 1917, No. 955, on verdict for defendant in case of Priscilla DeWalt and Peter DeWalt, her husband, v. Pittsburgh Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before Carnahan, J.</p> <p>Verdict and judgment for defendant. Plaintiffs appealed.</p> <p>Error assigned, among others, was in giving binding instructions for defendant.</p> <p>There was sufficient evidence of negligence to submit the case to the jury: Chesapeake & Ohio Ry. v. DeAtley, 241 U. S. 310; Lamb v. Penna. R. R. Co., 259 Pa. 536; Thorne v. Philadelphia Rapid Transit Co., 237 Pa. 20; Royer v. Penna. R. R. Co., 259 Pa. 438; Lewis v. Wood, 247 Pa. 545; Haas v. Wichita R. & Light Co., 132 Pac. Rep. 195.</p>

<p>Practice, Supreme Court — Appeals—Questions not raised below.</p> <p>,1. Questions not raised in the lower court will not be considered on appeal.</p> <p>Practice, C. P. — Amendment—Statement of claim — Adding ex- ■ Mbits to statement — Change of measure of damages.</p> <p>2. The trial court committed no error in granting leave to add exhibits to the statement of claim in a foreign attachment where the exhibits were referred to in the statement of claim and had been omitted by inadvertence.</p> <p>3. An amendment to a statement of claim which merely changes the measure of damages alleged, may be properly allowed since such a change does not change the nature of the cause of action but only affects the quantum of damages claimed.</p> <p>Foreign attachment — Plaintiff’s right to attach money in his own hands.</p> <p>4. The plaintiff in a foreign attachment may attach in his own hands moneys belonging to the defendant.</p>

<p>Appeal, No. 76, Oct. T., 1918, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1917, No. 2114, sustaining an award of compensation in case of Elmer Pater v. Superior Steel Company, a corporation.</p> <p>Appeal from order of Workmen’s Compensation Board affirming award of referee. Before Haymaker, J.</p> <p>Error assigned was the affirmance of the award of the compensation board.</p>

<p>Appeal, No. 77, Oct. T., 1918, by defendant, from decree of O. P. Allegheny Co., Oct. T., 1917, No. 55, in the case of Charles O. P. Eolshouse v. W. C. Wally, William Shaffer, Emory Shaffer, and Henry EAneess.</p> <p>Bill in equity for an accounting. Before Carnahan, J.</p> <p>Errors assigned were the decree of the court in overruling exceptions to certain findings of fact and conclusions of law.</p> <p>The declaration of a partner cannot bind the partnership: Karrick v. Hannaman, 168 U. S. 326; Reed v. Kremer, 111 Pa. 482; Walker v. Tupper, 152 Pa. 1.</p> <p>Where a number of persons engage in a business enterprise and continue their operations in other business enterprises the presumption is that the old relation continues, unless a new arrangement was made: Dunham v. Loverock, 158 Pa. •197; Butler Savings Bank v. Osborne, 159 Pa. 10; Blood v. Ludlow Carbon Black Co., Ltd., 150 Pa. 1.</p> <p>The fact that there is a partnership may be established by declarations of the partners: Reed v. Kremer & Co., Ill Pa. 482.</p>

<p>Decedents’ estates — Debts—Assets—Bents of real estate — Section Ilf, Fiduciaries Act, June 7,1917. P. L. Wl. •</p> <p>1. Section 14 of the Fiduciaries Act of June 7, 1917, P. L. 447, declaring rents of real estate accruing after the death of the owner, assets for the payment of debts of the decedent when the personal estate is insufficient, being designed to correct the injustice to creditors or deceased owners of real estate which existed before its passage, should be given a liberal construction to give effect to that purpose.</p> <p>2. Under the Fiduciaries Act making rents of real estate assets for the payment of debts of a decedent, the personal representative has authority not only to collect rents accruing under leases made by the decedent but also to collect rents from real estate which was not under lease at the time of the decedent’s death.</p>

<p>Appeal, No. 114, Oct. T., 1918, by defendant, from judgment of O. P. Allegheny Co., Jan. T., 1917, No. 1722, on verdict for plaintiff in case of O. W. Aland v. Will Pyle.</p> <p>Trespass for malicious prosecution: Before Reid, J.</p> <p>The defendant’s second request for instruction and the answer of the court were as follows:</p> <p>“If you believe that the action for malicious prosecution was instituted upon advice of legal counsel after a fair statement of the facts as detailed by the defendant and the counsel consulted, this is conclusive of the absence of malice, and your verdict must be for the defendant. Answer: Refused.”</p> <p>Verdict for plaintiff in sum of $2,000.</p> <p>Errors assigned were the judgment of the court, rulings on evidence, answers to points, and refusing defendant’s motion for a new trial and motion for judgment n. o. v.</p> <p>Punitive damages are of a doubtful character at best and should be allowed only in cases where the facts show outrageous conduct or such conduct which ought to be punished as an example to others.</p> <p>To be effectual punitive damages may have relation to defendant’s financial ability: Spear v. Hiles, 67 Wis'. 350.</p> <p>The jury may give vindictive damage as punishment in an action for malicious prosecution: Baldwin v. Von der Ahe, 184 Pa. 116.</p>

<p>Appeal, No. 117, Oct. T., 1918, by John W. McKown and Lennie J. McKown, from decree of O. O. Allegheny Co., April T., 1918, No. 131, distributing money realized from the sale of certain real estate, in the estate of Elizabeth O. McKown, deceased.</p> <p>Exceptions to a decree of auditing judge making distribution of funds. Before Trimble, J.</p> <p>From the record it appeared that the question involved was whether part of the testatrix’s estate representing proceeds of sale of real estate optioned by testatrix during her life and received by the executor after her decease should be distributed as money under the terms of the will.</p> <p>The terms of the will appear in the opinion of the Supreme Court.</p> <p>Error assigned was the decree of the court.</p> <p>A contract of sale works a conversion which takes place at the time the contract of sale is executed. The acceptance of an option relates back and takes effect as of the date of the contract: Kerr v. Day, 14 Pa. 112; Bender et al. v. Luckenbach, 162 Pa. 18; Peoples St. By. Co. v. Spencer, 156 Pa. 85; White’s Estate, 167 Pa. 206.</p> <p>Proceeds of sale were money within the meaning of the tenth clause of the will.</p> <p>Every word or phrase in the will should be given some force and effect: Schott’s Est., 78 Pa. 40; Wood v. Schoen, 216 Pa. 425.</p> <p>A bequest of money means cash: Schuler on Wills, Section 505; Carr’s Est., 13 Pa. C. C. 643; Wilkinson’s Est., 192 Pa. 127.</p>

<p>Appeal, No. 118, Oct. T., 1918, by plaintiff, from judgment of O. P. Allegheny Co., April T., 1917, No. 149, in favor of defendant in case of Homewood Peoples Bank v. J. M. Hastings.</p> <p>Assumpsit upon a contract guaranteeing payment of a promissory note. Before Ford, J.</p> <p>The note involved was in form as follows:</p> <p>“$5,250. “Pittsburgh, Pa., Sept. 30, 1908.</p> <p>“On demand after date, for value received I promise to pay to the order of myself fifty-two hundred fifty and no/100 dollars at Th^ Homewood Peoples Bank with interest at the rate of 6 per cent, per annum. Having deposited herewith as collateral security for the payment of this or any other liability or liabilities of...... to the holder hereof, now due or to become due, or that may be hereafter contracted, the following property, viz: “Two hundred fifty shares Davidson Lumber Company, ordinary stock, the market value of which is now $......with the further right to call for additional security in case there should be a decline in the market value thereof, and, on failure to respond, this obligation shall be deemed to be due and payable without demand or notice, with full power and authority to the holder hereof to sell and assign and deliver the whole of the above-mentioned security, or any part thereof, or any substitute thereof, or any additions thereto, at any broker’s board, or at any public or private sale, at the option of the holder hereof, on the nonperformance of this promise or the nonpayment of any of the liabilities above mentioned, at any time or times hereafter, without demand, advertisement, or notice and with the right to purchase as any other bidder at any public sale, thereof, held by virtue hereof, free of all claims and trusts. And after deducting all legal or other costs and expenses for collection, sale and delivery, to apply the residue of the proceeds of such sale or sales so to be made, to pay any, either or all of said above-mentioned liabilities, as the holder hereof shall deem proper, returning the over-plus to the undersigned. (Signed) F. L. Phillips. “Witness:........................</p> <p>“Endorsed:</p> <p>“F. L. Phillips.”</p> <p>The undertaking upon the back of the note following the endorsement of F. L. Phillips upon which the action was brought was as follows:</p> <p>“For value received I hereby guarantee payment of within note and waive demand, protest and notice of protest on the same. (Signed) J. M. Hastings.”</p> <p>From the record it appeared that at various times F. L. Phillips made payment on account, the last payment being made on February 6, 1912. The. present action was begun January 8, 1917.</p> <p>The plaintiff bank alleged that as a part of the consideration for accepting and discounting the note, the defendant, J. M. Hastings, agreed with the bank to guarantee the payment of the note according to its terms, and it sought to recover the debt and interest unpaid.</p> <p>In the affidavit of defense the defendant interposed the statute of limitations.</p> <p>Judgment was entered in favor of defendant upon the ground that the statute of limitations was a bar to the action. Plaintiff appealed.</p> <p>Error assigned, among others, was in deciding that the statute of limitations barred the plaintiff’s recovery.</p> <p>The undertaking is a contract of guaranty: Isett v. Hoge, 2 Watts, 128; Mizner v. Spier, 96 Pa. 533.</p> <p>The undertaking is a contract of suretyship: Hartley Silk Mfg. Co. v. Berg, 48’ Pa. Superior Ct. 419; McBeth v. Newlin, 15 W. N. C. 129; Armour & Co. v. Maxwell, 5 Dis. Rep. 762; Campbell v. Baker, 46 Pa. 243; Iron City National Bank v. Rafferty, 207 Pa. 238.</p> <p>A demand note is payable on the day of its execution: Boustead v. Cuyler, 116 Pa. 551; Taylor v. Witman, 3 Grant 138; Milne’s App., 99 Pa. 483.</p> <p>Plaintiff’s right of action is barred by the statute of limitations, irrespective whether the undertaking is a general guaranty or special guaranty equivalent to suretyship: Meade v. M’Dowell, 5 Binney 195; Lehigh Coal & Nav. Co. v. Blakeslee, 189 Pa. 13.</p>

<p>Promissory notes — Negotiable instruments — Dishonor — Notice to endorsers — Duty of bank forwarding note for collection.</p> <p>1. A bank receiving a note for collection which it forwards to its own correspondent, owes no duty to see that the endorsers receive notice of protest in the absence of special agreement or special instructions to forward the notice, if the holder receives notice of the dishonor and protest of the note.</p> <p>2. A bank receiving a note for collection which it forwards to its own correspondent incurs no liability to the holder for failure to notify an endorser of dishonor and protest of the note, merely because the notice of protest to the endorser was forwarded to it, and it failed to notify the holder that the notice had not been forwarded to the endorser, where the holder was advised in the notice of protest received by it that the notice for the endorser had been forwarded to the bank.</p> <p>3. In such case it was the duty of the holder to communicate with the bank to ascertain whether it had the address of the endorser and had forwarded the notice, or it should have forwarded the notice of protest to the endorser himself.</p>

<p>Negligence — Automobile collision — Injury to third person — Liarbility of owner — Use of machine by employee — Defective brakes— Proximate cause.</p> <p>1. Tbe owner of an automobile is not liable for damages caused by a collision due to the negligence of bis employee while the employee was using tbe machine for a purpose of bis own, whether the owner knew that tbe car was being so used or not.</p> <p>2. Tbe mere fact that an automobile was dangerous by reason of defective brakes, does not render the owner liable for damages caused by a collision while tbe employee was using tbe machine for a purpose of bis own, since tbe proximate cause of tbe accident was tbe use of tbe car by tbe employee for bis own purpose and not tbe condition of tbe brakes.</p>

<p>Appeal, No. 166, Oct. T., 1918, by plaintiff, from judgment of C. P. Allegheny Co., April T., 1917, No. 476, on verdict for defendant in case of Grace Camp in her own right and for the use of herself and her four minor children v. Allegheny County.</p> <p>Action in trespass for the death of plaintiff’s husband. Before Brown, J.</p> <p>The jury returned a verdict for the defendant.</p> <p>The court refused a motion for a new trial. Plaintiff appealed. .</p> <p>Errors assigned were rulings on evidence, the charge of the court and the refusal of a motion for a new trial.</p> <p>cited as to duty of nlunicipalities to erect guard railings along highways: O’Malley v. Parsons Boro., 191 Pa. 612; Hunter v. Eobinson Twp., 251 Pa. 436; Gerber v. Philadelphia, 60 Pa. Superior Ct. 119; Plymouth Twp. v. Graver, 125 Pa. 34; Dixon v. Butler Twp., 4 Pa. Superior Ct. 333.</p> <p>It is not enough to charge the jury that negligence is want of care, or failure of duty. The defendant’s duty must be defined and explained with reference to the facts proven: Cobb v. Bradford Twp., 232 Pa. 198; Neff v. Harrisburg Traction Company, 192 Pa. 501; Hayes v. Penna. R. R. Company, 195 Pa. 184; Kelchner v. Nanticoke Boro., 209 Pa. 412.</p> <p>The charge should contain distinct and definite instructions as to what contributory negligence is, and what facts constitute it: New York & R. R. y. Enches, 127 Pa. 316; Musick y. Latrobe Boro., 184 Pa. 375;. O’Neil y. Philadelphia, 244 Pa. 14.</p> <p>Neither speed nor intoxication constitutes contributory negligence; they are circumstances bearing on the question of due care.</p> <p>Where the circumstances can be fully and adequately described to the jury and are such that their bearing on the issue can be estimated by all men without special knowledge or training, opinions of witnesses, expert or other, are not admissible: Auberle v. McKeesport, 179 Pa. 321.</p> <p>The county was only bound to provide for the drdinary needs of travel conducted in the ordinary manner: Heister y. Fawn Township, 189 Pa. 253; Clark v. Allegheny County, 260 Pa. 199.</p>

Appeals, No. 134,135,140,141,142,143,144, and 158, Oct. T., 1918, by defendants, from decree of O. P. Allegheny Co., Jan. T., 1917, No. 2045, in equity, directing removal of obstructions from a public street, in case of City of Pittsburgh v. Pittsburgh & Lake Erie Railroad Company, South Side Gas Com- ' pany, Julia E. McClure, wife of Thomas McClure, United States Glass Company, John Eichleay, Jr., Company, Pennsylvania Railroad Company, Ormsby Land Company, Oliver O.…

<p>Ejectment — Adverse possession — Parties—Necessity of showing continuous possession for twenty-one years as against holder of record title — Payment of taxes — Nonsuit.</p> <p>1. A verdict for plaintiffs in ejectment brought in 1913 cannot be sustained against the holder of the record title, where plaintiffs’ claim to title was based upon adverse possession and a judgment in ejectment obtained in 1886 against a stranger to the title, and entry under a habere facias possessionem, and the further fact that a year later the predecessors in title of defendant and holders of the record title commenced an action of ejectment against plaintiffs in the first ejectment but took a voluntary nonsuit, and where the evidence also showed the plaintiffs were not in possession after 1892, and probably not after 1887. In such a case the plaintiff, claiming title by adverse possession is bound to show a continued and unbroken possession for the full twenty-one years to prevail against the holder of the record title.</p> <p>2. Assessment and payment of taxes do not prove title to real estate but are circumstances tending -to support a claim of possession.</p> <p>3. The rights of the holder of the record title to real estate are not affected by a verdict and judgment in ejectment against a third person where it does not appear that such person bore any relation to the holder of the record title or that the latter’s title was in any manner involved in the action.</p> <p>4. A voluntary nonsuit taken by plaintiff in an action of ejectment, does not settle the title t<* the land in controversy since, at most, when unexplained it can only be considered as a circumstance unfavorable to him who takes it.</p>

<p>Deed — Description—Diver as boundary — Low-water mark.</p> <p>Under a call in a patent issued by the Commonwealth describing the land as extending “to a birch j thence up the Eiver Ohio, traversing its several courses” the line extended to and along the stream at low-water mark.</p>

<p>.Corporations — Directors—Negligence—Impairing corporate capital "by paying dividends.</p> <p>1. Directors of a corporation are liable to the corporation and its creditors for failure to exercise reasonable and ordinary skill and diligence in conducting the business of the corporation.</p> <p>2. One who suffered himself .to be elected and continued as a director for over six years without giving the corporation’s business any attention, and who, at the only directors’ meeting he attended, participated in the declaration of a dividend, which impaired the corporate capital, without knowledge or investigation of the company’s affairs or report of the business or financial condition of the corporation as required by the by-laws, and in the face of the fact ■that it was then necessary to borrow money to meet current expenses and when a reasonable investigation would have disclosed the absence of net earnings, is guilty of such negligence as to render himself personally liable to the corporation and its creditors, since such conduct constituted a breach of trust.</p> <p>Corporations — Directors—Joint or several liability.</p> <p>3. Personal liability of directors of a corporation for neglect of duty, may be enforced against them jointly or severally.</p> <p>Corporations — BooTcs of corporation — Admissibility against directors — Evidence.</p> <p>4. The books of a corporation are admissible in evidence on behalf of the trustee in bankruptcy, in a proceeding to impose personal liability upon the directors for neglect of duty.</p> <p>5. Proof of the adjudication in bankruptcy and the list of claims of creditors of the corporation are admissible in evidence in a suit to enforce personal liability of the directors of the corporation.</p> <p>Corporations — Equity—Reopening case — New matter — Discretion of court — Set-off—Tort.</p> <p>6. After a decree nisi has been entered imposing personal liability upon a director for participating in declaring a dividend which impaired the corporate capital, it is not error to refuse a petition to reopen the decree to enable him to interpose a claim of set-off, on account of being compelled to pay more than the dividend in question as an endorser of a note of the corporation, where the case • was tried on the theory of no liability. In such a ease the director was not entitled to try the case again on a new theory, especially, where he had made payment on the note before suit was brought, inasmuch as it was not new matter or something newly discovered, and plaintiff’s claim sounded in tort and. the set-off in contract.</p> <p>7. An application to reopen an equity case, after decree nisi on final hearing, is addressed largely to the discretion of the court.</p>

<p>Appeal, No. 174, Oct. T., 1918, by defendant, from judgment of O. P. Allegheny Co., April T., 1917, No! 346, on verdict for plaintiff in case of P. L. Wally v. D. L. Clark.</p> <p>Action in assumpsit for drilling an oil well. Before Reid, J.</p> <p>Verdict for plaintiff in tbe sum of $2,493.35.</p> <p>The court refused a new trial. Defendant appealed.</p> <p>Errors assigned were the charge of the court and answers to oral requests for instructions.</p> <p>Where a trial court misstates the evidence, even inadvertently upon a fact, even though it is not pivotal, it is ground for reversal: Paul v. Kunz, 195 Pa. 207; Reel v. Martin, 12 Pa. Superior Ct. 340; Steinbrunner v. Pittsburgh, Etc., Co., 146 Pa. 504; Rumsey v. Shaw, 212 Pa. 576.</p>

<p>Appeal, No. 175, Oct. T., 1918, by defendant, from judgment of O. P. Allegheny Co., Oct. T., 1915, No. 454, denying motion for judgment n. o. v. in case of Frederick Ulm v. McKeesport Tin Plate Company.</p> <p>Trespass for personal injuries. Before Reid, J.</p> <p>Verdict for plaintiff in sum of $6,000. Judgment was entered upon the verdict. Defendant appealed.</p> <p>Error assigned was in overruling motion for judgment n. o. v.</p> <p>As the plaintiff had either of two ways to perform the work, one of which was dangerous, and the other safe, and he offered no competent evidence or reasonable excuse for selecting the dangerous way, he necessarily barred his right to recover by such selection: Solt v. Williamsport Radiator Co., 231 Pa. 585; Di Magnio v. Jefferson & Clearfield Coal & Iron Co., 251 Pa. 321; Card v. Stowers Pork P. & P. Co., 253 Pa. 575.</p> <p>The case was properly submitted to the jury: Fegley v. Lycoming Rubber Co., 231 Pa. 446; McCoy v. Wolf Co., 235 Pa. 571; Ralston v. Baldwin Locomotive Works, 240 Pa. 14; Fortney v. Breon, 245 Pa. 47.</p>

<p>Food law — Adulteration—Combination of boric acid and salt.</p> <p>1. A person may be convicted for á violation of tbe Act of May 13, 1909, P. L. 520, in selling an article of food and an article used for and entering into the composition of, and intended for use, as an ingredient in tbe preparation of food, described as a canning compound, wbicb was adulterated in tbat it contained a proportion of boric acid. In sucb a case it is immaterial that tbe compound contained 95 per cent, of boric acid and only five per cent, of salt. Such a compound is an article “entering into tbe composition of, or intended for use as, an ingredient in tbe preparation of food for man,” and is adulterated within the meaning of tbe act.</p> <p>Constitutional law — Title of act — Act of May IS, 1909, P. L. 620.</p> <p>2. Tbe Act of May 13, 1909, P. L. 520, entitled “An Act relating to food,” etc., is sufficient in its title to give notice of its contents, and is constitutional.</p>

<p>Road law — Eminent domain — Borough — Public use — Public highway.</p> <p>1. The taking of land for a public highway is a taking for public use.</p> <p>2. Where the use is a public one the question of the wisdom of the action of a borough in condemning land is for the sovereign power of the State and not for the courts.</p> <p>3. An ordinance providing for the opening of a private roadway as a public highway constitutes a taking for a public rather than a private use, and is based on apparent necessity, where the roadway is intended as a means of reaching a garbage incinerating plant, is intended for the use of the borough and several adjoining municipalities and citizens of municipalities desiring to deliver garbage to the plant for disposal, and it appears that the proposed location of the plant was chosen after due investigation and on advice of the borough engineer, that the site was approved by the court, and that the road has been used by many citizens of the municipality as a means of access to the abutting properties.</p> <p>Equity — Injunction—Restraining passage of borough ordinance —Remedy at law — General Borough Act of May 1J¡., 1915, P. L. 812.</p> <p>4. Equity has no jurisdiction to restrain the passage of a borough ordinance for the opening of a private roadway as a public highway. In such a case there is an adequate remedy at law since the passage of the General Borough Act of May 14, 1915, P. L. 312, which provides that the remedy of “any person aggrieved in consequence of any ordinance, regulation or act done or purporting to be done by virtue of this act” shall be by application to the Court of Quarter Sessions, and which makes the determination and order of the court thereon conclusive.</p>

<p>Appeal, No. 179, Oct. T., 1918, by defendant, from judgment of O. P. Allegheny Co., April T., 1917, No. 2176, on verdict for plaintiff, in case of Dorothy McBride, Administratrix of Estate of W. W. McBride, for use of Dorothy McBride et al. v. Western Pennsylvania Paper Company, a Corporation.</p> <p>Assumpsit upon a contract to recover $6,468.96 with interest. Before Swearingen, J.</p> <p>The issue was whether the defendant corporation had made a contract alleged in plaintiff’s statement of claim, and, if so, if the alleged contract was binding.</p> <p>Verdict for plaintiff in the sum of $8,280.26 and judgment thereon. Defendant appealed.</p> <p>Errors assigned were the refusal of defendant’s request for binding instructions in its favor and in overruling motion for judgment n. o. v.</p> <p>The contract was ultra vires: Bosshardt v. Crescent Oil Co., 171 Pa. 1Ó9.</p> <p>There was no consideration to support the contract: Bryan v. Douds, 213 Pa. 221: Phillips v. Hull, 10Í Pa. 567; Dollar Savings Bank v. Bennett, 76 Pa. 402.</p> <p>Assuming a contract supported by a good consideration, the statute of frauds is a bar: Bryan v. Douds, 213 Pa. 221; Barnet y. Dougherty, 32 Pa. 371; Kellum v. Smith, 33 Pa. 158.</p> <p>No privity of contract is necessary to sustain an action for . money had and received, for the law, under these circumstances, implies a promise: MTcAvoy & McMichael v. ■ Commonwealth Title Insurance & T. Co., 27 Pa. Superior Ct. 271; Humbird v. Davis, 210 Pa. 311; McCullough v. Ford Nat. Gas Co., 213 Pa. 110.</p> <p>An interest in contingent profits arising from a sale of real estate to be made thereafter does not amount to an interest in the land itself, within the meaning of the statute of frauds: Benjamin v. Zell, 100 Pa. 33; Miller v. Kendig, 55 Iowa 174; Rogers y. McKitrick, 12 Ky. Law Rep. 606.</p>

<p>Trial — Instructions to jury — Statement of distinction between common law actions of trespass and trover.</p> <p>1. It is not error for a trial judge to explain to tbe jury the distinction between the common law actions of trespass and trover and to state that the case seemed to include a charge of both.</p> <p>2. In an action for alleged unlawful taking and use of a steam roller by defendant, who contracted with plaintiffs agent to operate the roller over a piece of road and consented that the roller might be placed in his yard rather than.remain in the highway when the weather conditions prevented its return, it is not error to state to the jury that the only evidence of an unlawful taking consisted in the fact that the roller was found in defendant’s possession, and that if the jury believed the evidence for defendant, the taking in the first place was not unlawful where the testimony of the agent, which was corroborated by two witnesses, was in effect that he had entire charge of the roller with the right to rent it.</p> <p>Conversion — Evidence—Use—Claim of title.</p> <p>3. There was no evidence of conversion of the roller, where it was shown that, although defendant permitted it to be placed in his yard by the agent of the owner, he never used it after it was placed there, nor claimed title to it, nor refused to permit the owner to remove it, and that he returned it to the owner after suit was brought.</p> <p>Principal and agent — Competency to prove agency-^ — Witness— Evidence.</p> <p>4. An agent is a competent witness to testify as to the existence of the agency and the extent of his authority.</p>

<p>Receivers — Appointment by State court — Account—Bankruptcy —Receiver in bankruptcy — Federal court.</p> <p>1. A receiver in equity should account to the court which appointed him, even though the estate was afterwards adjudicated a bankrupt.</p> <p>Account — Exceptions—Issues of fact — Searing—Confirmation.</p> <p>2. Where exceptions to an account raise controlling issues of fact in regard to some of the credits claimed therein, it is error to confirm the account without giving exceptants an opportunity to prove the facts alleged by them to deny such right violates the due process of law constitutional provision.</p>

<p>Appeal, No. 15, May T., 1918, (Middle District transferred to Western District) by plaintiff, from decree of C. P. Dauphin Co., No. 2, Commonwealth Docket, 1917, and No. 592, Equity Docket, sustaining demurrers to plaintiff’s bill in the case of Peoples Trust Company of Pittsburgh v. Cyrus E. Woods, Secretary of the Commonwealth, and the Safe Deposit & Trust Company of Pittsburgh.</p> <p>Bill in equity to cancel certificates issued by the secretary of the Commonwealth changing the name of the corporation. Before McCarrell, J.</p> <p>From the record it appeared that the Safe Deposit and Trust Company of Pittsburgh, after having taken over the assets of the Peoples Savings Bank, made application to the secretary of the Commonwealth to have-its name changed to that of Peoples Savings and Trust Company of Pittsburgh. The plaintiff. Peoples Trust Company of Pittsburgh, opposed the proposed change of name. The Safe Deposit and Trust Company is located in the business center of the City of Pittsburgh in what is popularly known as “old city,” and the Peoples Trust Company is located between Seventeenth and Eighteenth streets, in that portion of the city popularly known as “south side.” The places of business of the plaintiff and defendant are approximately 1.9 miles apart. The sections of the city in which they are respectively located are separated by the Monongahela river.</p> <p>The court sustained demurrers to the bill and dismissed it in the following opinion by McCarrell, J.:</p> <p>This bill was filed January 9,1917, asking:</p> <p>(1) For the cancellation and annulment of a certificate in the office of the secretary of the Commonwealth changing the name of the Safe Deposit & Trust Company of Pittsburgh to that of the Peoples Savings and Trust Company of Pittsburgh.</p> <p>(2) That the Safe Deposit & Trust Company of Pittsburgh be restricted temporarily and perpetually on final hearing from recording the certificate of change of name thereinabove mentioned in the records of Allegheny County, and that it be also likewise restrained from using or attempting to use the title of Peoples Savings and Trust Company of Pittsburgh.</p> <p>(3) Other and further relief.</p> <p>The fundamental contention of the bill is that the secretary of the Commonwealth erred in approving the change of name of the Safe Deposit & Trust Company of Pittsburgh to that of Peoples Savings and Trust Company of Pittsburgh. To this bill the defendants have filed separate demurrers, raising practically the same questions. We find nothing in the bill of complaint which shows or tends to show that the secretary of the Commonwealth has abused the legal discretion vested in him by allowing the change of name. The change of name had been approved by vote of the stockholders and the change was approved by the secretary of the Commonwealth in pursuance of the authority vested in him. We cannot control the legal discretion of an officer to whom is committed the right to approve or disapprove changes of corporate names. It appears from the briefs submitted that under date of December 27,1916, the Peoples Trust Company of Pittsburgh filed its bill in equity in the Court of Common Pleas of Allegheny County to No. 2115 January Term, 1917, asking for a decree prohibiting the use of the name the Peoples Savings and-Trust Company of Pittsburgh. The allegations in this bill relating to the change of name and its alleged illegalities are substantially the same as in the bill now before us. Judge Carpenter of the Allegheny County Court dismissed the bill and we are informed that, upon appeal from that decision the decree dismissing the bill was affirmed by the appellate court. Independently of this we are of opinion that we have no jurisdiction to restrain the discretion of the secretary of the Commonwealth under the allegations contained in the bill! We therefore sustain the demurrers and dismiss this bill at the costs of the plaintiff.</p> <p>Plaintiff appealed.</p> <p>Errors assigned were the findings and the decree of the court.</p> <p>It was the duty of the secretary of the Commonwealth where the names presented such marked similarity to submit the question to the attorney general as in the case of Sterling Smokeless Coal Co., (Opinion of Atty. Gen., Dec. 13, 1916).</p> <p>Failure to do so was contrary to the Act of June 7, 1915, P. L. 876.</p> <p>cited: Peoples Trust Company of Pittsburgh, Safe Deposit & Trust Company of Pittsburgh, 259 Pa. 62; West End Companies, 27 Pa. C. C. R. 611.</p>

<p>Appeal, No. 151, Oct. T., 1918, by plaintiffs, from a, decree of O. P. Allegheny Oo., Jan. T., 1918, No. 2413, in Equity, dismissing bill in equity in case of Joseph H. Levy et al. v. A. H. Kannofsky.</p> <p>Bill in equity.- Before Schafer, P. J.</p> <p>The bill sought to have a judgment held by defendant against a corporation declared void, and to require the defendant to pay into the treasury of the corporation $600 withdrawn by. him. Bill dismissed. Plaintiffs appealed.</p> <p>Errors assigned were findings of facts and the decree of the court dismissing the bill. ,</p>

<p>Appeal, No. 89, Oct. T., 1918, by trustees under the will of Eliza T. Edwards, from decree of O. P. Allegheny Co., July T., 1916, No. 2402, in equity, rendered in proceedings for partition of real estate in the case of Burd B. E. Dickson et al. v. Eliza E. Edwards et al.</p> <p>Bill in equity for partition of real estate. Before Shaper, J.</p> <p>The case turned upon the interpretation of the will of Eliza Thaw Edwards, deceased. The court found that the trust created by the will was confined to one-half of the personal estáte and did not include one-half of the real estate, and so decreed. The trustees appealed.</p> <p>Errors assigned were the conclusions of law and the decree of the court.</p> <p>The use of the word “estate” in the will signified both real and personal: Turbett v. Turbett, 3 Yeates 187; Hofius v. Hofius, 92 Pa. 305; Lewis’ App., 108 Pa. 133; Campbell v. Campbell, 37-Wis. 206,215. ,</p> <p>The law presumes that a testator intends to dispose of all his property: Striewig’s Est., 169 Pa. 61; Miller’s App., 113 Pa. 159.</p> <p>Where the meaning of the will as expressed and the intentions of the testator are doubtful, the court will follow the general rules of inheritance.</p> <p>The real estate did not pass under the will: Howe’s App., 126 Pa. 233; Turbett v. Turbett, 3 Yeates, 187; Levy’s Est., 161 Pa. 189; Miller’s Est. (No. 1), 26 Pa. Superior Ct. 113.</p>

Appeal, No. 139, Oct. T., 1918, by William E. Schr'icker et al., from order of' C. P. Cambria Co., Dec. T., 1904, No. 539, making absolute rule for judgment for failure to bring ejectment In .re Petition of D. E. Notley. Rule to show cause why judgment should not be entered for failure to bring ejectment within six months. Before Stephens, P. J. The court made absolute the rule for judgment. Wm. E. Schricker et al., respondents, appealed.

<p>Appeals — Assignments of error — More than one point.</p> <p>1. An assignment of error embracing more than one point violates the rules of court and will not be considered.</p> <p>Partnership — Bale of partner’s property to firm.</p> <p>2. A partner can recover in assumpsit, from Ms copartners individually, the amount they have personally agreed to pay to Mm for a sale of Ms property to the firm.</p>

<p>Foreign attachment — Motion to quash — Self-sustaining record —Discretion—Abuse of discretion.</p> <p>1. A motion to quash a writ of foreign attachment must specify the reasons therefor.</p> <p>2. The record must he self-sustaining in all eases where a court summarily interferes with the statutory rights of a litigant.</p> <p>3. Quashing a writ in the absence of such record is an abuse of discretion — if, indeed, it is the exercise of a discretion.</p>

<p>Wills — Probate—Issue devisavit vel non — Lost will — Evidence— Revocation — Presumption.</p> <p>1. On an issue devisavit vel non where the issues were as to the execution, the contents and the execution of a lost will, a verdict in favor of the proponents, will be sustained, where the witnesses testified that, shortly before the death of .the decedent, the latter showed them separately and at different times a small book in which he had written his will, containing a money legacy to his brother and a gift of the residue to his wife; that both witnesses were familiar with his handwriting and read the will, and agreed as to its contents; that the decedent had used language to them indicating that it was his will; and that other witnesses testified to declarations of testator to the effect that he had distributed his estate in accordance with the provisions of the will written in the small book referred to in the other testimony in the case.</p> <p>2. In such case the presumption that testator had revoked the will, arising from the fact that it was last seen in his possession, is overcome by testimony in effect that on the evening when the decedent showed one of the witnesses the little book, he did not retire with his family, but left the house, returning the following morning sick, cold and frozen, that he was put to bed by his daughter where he remained until taken to a hospital two weeks thereafter, where he died two days later; that on the evening previous to being taken to the hospital he had referred to the will and the little book indicating it to be in existence at that time; that subsequently to this he had not been out of bed; that on the following day he was unable to recognize his wife; and that from the time of his removal to the hospital until his death he remained in an unconscious condition without opportunity to destroy the will.</p>

<p>Negligence — Railroads—Master and servant — Air brake — Interstate commerce.</p> <p>1. Where a local train operated entirely within the State of Pennsylvania, is employed in a private yard to shift an empty freight car from one track to another, and in doing so the car is attached to the rear end of the train, the mere fact that three cars of the train contained material consigned from points without the State to the owner of the local yard, is not sufficient in itself to sustain a finding that a brakeman injured by an alleged defective brake while riding on the empty car, was engaged in interstate commerce.</p> <p>2. In such a case, the burden was on the brakeman, in a suit against his employer, the railroad company, to show that at the time of the accident, the main purpose of the switching operation, was to further the delivery of the particular cars in the train consigned from points beyond the State, and this he failed to do.</p> <p>3. The test of employment in interstate commerce is whether the employee was, at the time of receiving the injury complained of, engaged in interstate transportation, or in work so clearly related to it, as to be practically a part of such traffic.</p> <p>Negligence — Railroads—Master -and servant — Defective brake.</p> <p>4. In an action by a brakeman against his employer, a railroad company, to recover damages for personal injuries, alleged to have been caused by the sudden giving away of a brake wheel, the plaintiff is not entitled to have his case submitted to the jury, where the evidence shows that the giving way of the wheel was due to one or other of three causes for one only of which the defendant was responsible. In such a case the plaintiff is bound to show the cause that fastened the liability upon the defendant, was the proximate cause of his injury.</p>

<p>Practice, O. P. — Judgment n. o. v. — Dismissal of motion.</p> <p>It is not error to dismiss motions for binding instructions and for judgment non obstante veredicto, if plaintiff is entitled to any damages for the injury of which he complains.</p>

<p>Appeals, Nos. 136 and 183, Oct. T., 1918, by Ralph McClure et al., and by the Fidelity & Title Trust Co. of Pittsburgh et al., from judgment of C. P. Allegheny Co., Jan. T., 1918, No. 1325, on verdict for defendant in case of Anna M. McClure et al. v. Charles R. Redman et al.</p> <p>Issue to determine the validity of a paper purporting to be the will of Ann Redman, deceased. Before Swearingen, J.</p> <p>The jury, -by instruction of the court, returned a verdict against the valid execution of the paper as a last will and testament. Judgment was entered on the verdict.</p> <p>Errors assigned were in giving binding instructions against the validity of the paper as a will, and in refusing to admit in evidence the opinion of expert and non-expert witnesses as to handwriting.</p> <p>The signature to the will is the signature of Ann Redman: Reese v. Stille, 38 Pa. 138; Vandruff v. Rinehart, 29 Pa. 232; Plate’s Est., 148 Pa. 55; Com. v. Swartz, 65 Pa. Superior Ct. 159; Fulton v. Hood, 34 Pa. 365; Burkholder v. Plank, 69 Pa. 225; McWilliams’ Est., 259 Pa. 526 ; Shaver v. McCarthy, 110 Pa. 346.</p> <p>The identity of the handwriting was a question for the jury. ■</p> <p>The expert had no standard upon which to base his opinion: Groff v. Groff, 209 Pa. 603; Com. v. Grauman, 52 Pa. Superior Ct. 204.</p> <p>The nonexpert witnesses were without qualifications to express an opinion upon the writing in question: Com. v. Grauman, 52 Pa. Superior Ct. 204.</p>

<p>Appeal, No. 20, Jan. T., 1919, by plaintiff, from order of O. P. No. 2, Philadelphia Co., June T., 1917, No. 1646, refusing to take off nonsuit in case of Georgia A. Boggs v. Jewell Tea Company.</p> <p>Trespass against the owner of a wagon to recover damages for the death of plaintiff’s husband. Before Rogers, J.</p> <p>At the trial the court directed a compulsory nonsuit • which it subsequently refused to take off.</p> <p>Error assigned was refusal to take off nonsuit.</p> <p>The negligent act of defendant’s driver placed the deceased in a position of danger and was the proximate cause of his death: Vallo v. United States Express Company, 147 Pa. 404; McClung v. Penna. Taximeter Cab Co., 252 Pa. 478; Dorety v. Horroeks, 65 Pa. Superior Ct. 572.</p> <p>The decedent was not guilty of contributory negligence : Miller v. Lewistown Electric Light, H. & P. Co., 212 Pa. 593.</p> <p>The accident was due solely to the negligence of the ambulance driver, and the court was right in entering a nonsuit: Rhad v. Duquesne Light Co., 255 Pa. 409; Stubbs v. Edwards, 260 Pa. 75; Brown v. Chambers, 65 Pa. Superior Ct. 373; McClung v. Penna. Taximeter Cab Co., 252 Pa. 478; Wagner v. Philadelphia Rapid Transit Co., 252 Pa. 354 ; Bew v. Daley, 260 Pa. 418; Stubbs v. Edwards, 260 Pa. 75.</p> <p>There was no evidence that the deceased was in any such peril from defendant’s wagon as showed any duty that was violated by defendant in the happening of the accident: Alexander v. American Express Co., 258 Pa. ' 378.</p>

<p>Practice, Supreme Court — Assignments of error.</p> <p>1. Assignments of error not in accordance with the rules of the court are not to be considered.</p> <p>Contract — Sale—Sample — Expert evidence — Measure of damages — Option.</p> <p>2. Where an article is- sold by sample, an expert may properly testify to the market value of the sample, without showing that he knew its age.</p> <p>3. If the sample shown at the time of the making of a contract was of an article in perfect condition, the market value of such an article in perfect condition may be shown by expert evidence in order to measure the damages for a breach of the contract.</p> <p>4. In such case the difference between the contract price and the market price of an article, of the quality shown by the sample, is the measure of damages for a failure to deliver.</p> <p>5. A seller cannot escape liability by a partial performance of his contract, with notice, at the time of such partial performance, that be will not fully comply therewith.</p> <p>6. Where a contract provides that an article is to be delivered with an “option of seven more ten days after arrival” the option is the vendee’s and not the vendor’s, and the latter cannot refuse to deliver the additional articles because at the time he delivered the first one he gave notice that he would not deliver any more.</p>

<p>Appeal, No. 28, Jan. T., 1919, by defendants, from decree of C. P. No. 2, Philadelphia Co., Sept. T., 1917, No. 5355, on bill in equity in case of Israel Sklaroff et al., trading as S. Sklaroff & Sons v. Harry Sklaroff et al., trading as Pennsylvania Smoked Fish Company, H. Sklaroff and Son, Samuel H. Sklaroff, S. H. Sklaroff & Co. and Harry Sklaroff & Son.</p> <p>Bill in equity for an injunction. Before Wessel, J.</p> <p>The court entered a decree substantially as prayed for. Defendant appealed.</p> <p>Error assigned was decree enjoining defendants from conducting the business of smoking and curing fish in the States of Pennsylvania and New Jersey, either in their own name or any other name.</p> <p>Joseph Gilfillan, of Graham & Gilfillan, with him Alex. J. Brian, for appellants. — The contract was an illegal restraint of trade: Henschke v. Moore, 257 Pa. 196.</p> <p>cited: Monongahela River Consolidated Coal & Coke Co. v. Jutte, 210 Pa. 288; Oregon Steam Nav. Co. v. Winsor, 87 U. S. 64; Smith’s App., 113 Pa. 579; Richards v. Shipley, 257 Pa. 134; Morris Run Coal Co. v. Barclay Coal Co., 68 Pa. 173; Stone v. Stone, 64 Pa. Superior Ct. 392.</p>

<p>Contract — Sale—Rescission—Demand—Suit.</p> <p>1. One who requests another to act or not to act, cannot punish that other for complying with the request.</p> <p>2. Hence a defendant cannot complain of a plaintiff’s failure to promptly rescind a contract, and return the article received, if the delay is due entirely to defendant’s request.</p> <p>3. Bringing suit is ordinarily a sufficient demand for payment of money due.</p> <p>4. The purchaser of an article sold, under an agreement that it may be returned if not satisfactory, has the right to return it if his objections are made in good faith and not capriciously.</p> <p>5. If the objections are made in good faith and not capriciously they will be sustained even though in the opinion of the court and jury they are not reasonable.</p>

<p>Negligence — Railroad companies — Pullman cars — Pullman employees — Liability of railroad company for negligence of Pullman employee — Passenger—Stepping from car.</p> <p>1. A railroad company is answerable for the negligence of a Pullman employee, resulting in injury to a passenger, although such employee was not in the employ of the railroad company, in the absence of any knowledge by the passenger that the Pullman car was not under the management of the railroad company, and it is not material that the Pullman car was managed by the Pullman company under an independent contract with the railroad company. A passenger may assume, in the absence'of notice to the contrary, that the whole train is under one management.</p> <p>Negligence — Damages—Future expenses for treatment.</p> <p>2. Where the evidence, in a negligence case for personal injuries, shows the value of medical services already rendered the injured person, and that such service will be required in the future, the jury may determine from the past service, and its value, what may reasonably be required in the future, although there is no other evidence of the value of the future services, and better evidence is not reasonably available.</p>

<p>Pleading — Practice, G. P. — Negligence — Deceit — Allegata et probata.</p> <p>1. A statement of claim which avers the breach of a contract to invest safely, sounds in negligence and not in deceit.</p> <p>Practice, G. P. — Trial—Objection not made at trial — Appeal.</p> <p>2. An objection not made at the trial cannot be reviewed on appeal.</p> <p>3. It is not error to fail to rule that .a paper operates as a general release, if the court is not specifically asked to do so, and evidence in regard thereto has been submitted by both parties.</p> <p>Release — Oonstruction of paper — Consideration — Evidence — Cross-examination.</p> <p>4. Where a receipt specifically refers to given matters, followed by general words which, if standing by themselves, might be held to operate as a general release, it will not be so construed unless upon a consideration of the whole of the evidence it appears to have been so intended.</p> <p>. 5. Where one who draws and executes a paper is called as a witness, and testifies that the paper was one of settlement, he may be asked on cross-examination whether the matter in litigation was included in the settlement.</p>

<p>Appeal, No. 151, Jan. T., 1919, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1916, No. 3886, on verdict for plaintiff in case of Michael F. Toner v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Monaghan, J.</p> <p>Verdict and judgment for plaintiff for $8,235.28. Defendant appealed.</p> <p>Errors assigned were in refusing binding instructions for defendant, and refusal of motion of defendant for judgment n. o. v.</p> <p>There was no sufficient justification for the risk plaintiff assumed: Corbin v. Philadelphia, 195 Pa. 461; Almento v. Bessemer & L. E. R. R. Co., 255 Pa. 588.</p> <p>The proofs disclosed no negligence on the part of the defendant: McMullen v. Penna: R. R. Co., 132 Pa. 107; Loughrey v. Penna. R. R. Co., 201 Pa. 297; Mitchell v. Philadelphia, W. & B. R. R. Co., 132 Pa. 226; Moore v. Penna. R. R. Co., 99 Pa. 301; Lumis v. B. & O. R. R. Co., 248 Pa. 189; Barrage v. Philadelphia & Reading Ry. Co., 60 Pa. Superior Ct. 66; Leithold v. Philadelphia & Reading Ry. Co., 47 Pa. Superior Ct. 137; Keller v. Philadélphia & Reading Ry. Co., 214 Pa. 82; Philadelphia & Reading Ry. Co. v. Spearen, 47 Pa. 300; Gallagher v. B. & O. R. R. Co., 52 Pa. Superior Ct. 568; Barto v. Penna. R. R. Co., 49 Pa. Superior Ct. 36; Keller v. Philadelphia & Reading Ry. Co., 214 Pa. 82.</p> <p>Plaintiff was not guilty of contributory negli? gence: Corbin v. City of Philadelphia, 195 Pa. 461.</p>

<p>Appeal, No. 208, Jan. T., 1918, by plaintiffs, from judgment of C. P. No. 4, Philadelphia Co., June T., 1917, No. 3306, on verdict for defendant in case of Matthew H. McCloskey, Jr., and Emil F. Bahls, trading as McCloskey & Bahls, v. Clarence L. Marks.</p> <p>Assumpsit to recover balance alleged to be due upon a. building contract. Before Carr, J.</p> <p>Verdict and judgment'for defendant. Plaintiffs appealed.</p> <p>Error assigned was portion of charge quoted in the opinion of the Supreme Court.</p> <p>The contract did not by its terms commit to the sole decision of the architect the determination of any extension of the time fixed for completion: Yost v. McKee, 179 Pa. 381; Knipe v. Livingstone, .19 Montg. Co. 17; Memphis, etc., B. R. Co. v. Wilcox, 48 Pa. 161; Chandley Bros. v. Cambridge Springs Boro., 200 Pa. 230.</p> <p>The contract conferred no authority upon the architect to pass upon and determine the merits of the defendant’s claim for damages in consequence of this alleged breach, nor to fix the amount of such damages: Kann v. Bennett, 234 Pa. 12.</p> <p>No matter what authority the contract conferred upon the architect, it certainly did not vest him with the power to pass upon á question to which he himself was a party: Shoemaker v. Riebe, 241 Pa. 402;</p>

<p>Appeal, No. 42, Jan. T., 1919, by defendant, from judgment of C. P. No. 3, Philadelphia (Go., Dec. T., 1914, No. 2682, on verdict for plaintiff in case of Reading Company v. William Spink.</p> <p>Assumpsit to recover an annual rent charge. Before Davis, J.</p> <p>The court gave binding instructions for plaintiff.</p> <p>Verdict and judgment for plaintiff for $1,543.49. Defendant appealed.</p> <p>Error assigned, among others, was in giving binding instructions for plaintiff.</p> <p>A question is not rendered res adjudicata unless it is necessary to the determination of the prior litigation: Bigley v. Jones, 114 Pa. 510; Connery v. Brooke, 73 Pa. 80; Funk v. Young, 254 Pa. 548; Becker v. Lebanon, etc., Street Ry. Co., 195 Pa. 502; Davis v. Southwest Penna. Pipe Line, 34 Pa. Superior Ct. 438; Follansbee v. Walker, 74 Pa. 306; Kapp v. Shields, 17 Pa. Superior Ct. 524.</p> <p>cited: Sterns Company v. Hewes, 256 Pa. 577; Jenkins v. Scranton, 205 Pa. 598; City of Lancaster to use v. Frescoln, 192 Pa. 452; Kilheffer v. Herr, 17 S. & R. 318, 319; Schwan v. Kelly, 173 Pa. 65; Bolton v. Hey, 168 Pa. 418; Schroeder v. Galland, 134 Pa. 277; Pennock v. Kennedy, 153 Pa. 579; Myers v. So. Bethlehem, 149 Pa. 85; Raisig v. Graf, 17 Pa. Superior Ct. 509; Myers v. So. Kingston Coal Co., 126 Pa. 582; Taylor v. Cornelius, 60 Pa. 187.</p>

<p>Appeal, No. 368, Jan. T., 1918, by plaintiff, from judgment of C. P. No. 4, Philadelphia Co., Dec. T., 1916, No. 4693, entered upon a verdict for the defendant in the case of County of Philadelphia v. James B. Sheehan, Register of Wills.</p> <p>Assumpsit to recover commissions allowed register of wills for collection of State collateral inheritance taxes. Before Audenried, P. J.</p> <p>Verdict and judgment for defendant. The court dismissed plaintiff’s motion for judgment n. o. v. Plaintiff appealed.</p> <p>Error assigned was dismissal of plaintiff’s motion for judgment n. o. v. ■</p> <p>The classification specified in the act is a proper classification: Allegheny County v. Stengal, 213 Pa. 493.</p> <p>The collection of the collateral inheritance tax has nothing to do with counties or county officers, but with the State and its agents: Bartley v. Patton, 19 Philadelphia 496; Knisely v. Cotterel, 196 Pa. 614; In re Registration of Campbell, 197 Pa. 581; City v. McMichael, 12 Pa. Dist. Rep. 403; Philadelphia v. McMichael, 208 Pa. 297; Wheeler v. Philadelphia, 77 Pa. 338; Sugar Notch Borough, 192 Pa. 349.</p> <p>The defendant is estopped to deny the constitutionality of the statute: Bidwell v. City of Pittsburgh, 85 Pa. 412; Dewhurst v. City of Allegheny, 95 Pa. 437; Person’s App., 96 Pa. 140; Harrisburg v. Baptist, 156 Pa. 526; Trevorton Water Supply Co. v. Zerbe Township, 259 Pa. 31; Daniels v. Tearney, 102 U. S. 415. ■</p> <p>The statute violates Article III, Section 7, of the Constitution: Wheeler v. Philadelphia, 77 Pa. 338; Scowden’s App., 96 Pa. 422; Morrison v. Bachert, 112 Pa. 322; Commonwealth ex rel. v. Patton, 88 Pa. 258; Sample v. Pittsburgh, 212 Pa. 533.</p>

Appeal, No. 83, Jan. T., 1918, by tbe County of Luzerne, from judgment of C. P. Luzerne Co., March T., 1918, No. 778, disallowing a surcharge by the county controller against the register of wills in the case of County of Luzerne v. William E. Morgan. Appeal by register of wills from report of county controller. Before Fuller, J. Case submitted upon an agreed statement of facts.

<p>Criminal law — Murder—Homicide—Belf-defense —■Instruction to jury.</p> <p>In a murder trial, at which the accused set up a plea of self-defense, an instruction that the jury should first determine whether the accused was guilty, and, if so, of what crime, and, after having done so, they should then “take up the defense in the case,” is reversible error, inasmuch as the accused is entitled to have his plea and the testimony in support of it, considered by the jury in connection with the case as made out by the Commonwealth, from the moment the jury retires to deliberate upon their verdict.</p>

<p>Appeal, No. 9, Jan. T., 1919, by the Pennsylvania Company for Insurances on Lives and Granting Annuities, trustee for M. Lilly Beall and Florence B. Thornton, from decree of O. C. Philadelphia Co., Oct. T., 1900, No. 362, in estate of Mary B. Grubb, deceased.</p> <p>Exceptions to adjudication of auditing judge making distribution under the will of Mary B. Grubb, deceased. Before Lamorelle, P. j.</p> <p>Exceptions dismissed. The trustee appealed.</p> <p>Error assigned was the dismissal of exceptions to the adjudication of auditing judge.</p> <p>The word “children” does not include “grandchildren,” except in a case where there is no one answering the description of children: Steinmetz’s Est., 194 Pa. 611; Todd’s Est., 33 Pa. Superior Ct. 117; Hager’s Est., 17 Dist. Rep. 1015; Altdorfer’s Est., 17 Dist. Rep. 690; Scott’s Est., 37 Pa. Superior Ct. 342.</p> <p>The intention to include grandchildren appears from the incorporation by testatrix of her husband’s will as a part of her own.</p> <p>There is ample authority to the effect that “children” includes grandchildren and descendants, when it appears from the entire will that such was the intent of the testatrix, and particularly when the will is informal in phrase and written without legal assistance: Campbell’s Est., 202 Pa. 459; Haldeman v. Haldeman, 40 Pa. 29; Potts v. Kline, 174 Pa. 513; Walker’s Est., 240 Pa. 1; Towne’s Est., 260 Pa. 443.</p>

<p>Workmen’s compensation — Finding of fact by referee and compensation board — Gonclusiveness—Review by court.</p> <p>A finding by the referee and the compensation board that a workman at the time he was killed was an employee and not an independent contractor is conclusive and not reviewable by the court on appeal.</p>

<p>Negligence — Railroads — Trespaseei — Children upon railroad embankment — Duty to use ordinary care.</p> <p>1. A boy nine years old, while seated on a plank projecting from an embankment of a railroad right-of-way, is a trespasser to whom the railroad company owes the duty of exercising ordinary care to avoid injuring him by the operation of its trains.</p> <p>2. A railroad company is not liable for injuries sustained by a small boy having been struck by a piece of ice thrown from a passing train by an employee of the company while the boy was seated on a plank projecting from the side of the railroad embankment about six feet below the level of the tracks and opposite a vacant lot used by children as a common playground, where it appears that although the baggagemaster knew that an employee of the company who used the train as a passenger to return home from his work, had been in. the habit of dropping a piece of ice from the train at that point, there was no evidence to show that the employee who threw the ice from the car or the crew of the train, had, at any time seen children at or near the place of the accident, or that the embankment of the railroad constituted a part within the limits of a common playground.</p> <p>3. It is no part of a baggageman’s duty to be observant of conditions along the tracks with respect to trespassers on the railroad’s property, or to observe and report conditions which in his judgment required extra care with respect to people not passengers.</p>

Appeals, Nos. 240, 268, 300 and 304, by defendants, from decree of C. P. No. 5, Philadelphia Co., Sept. T., 1915, No. 2149, on bill in equity in case of Marian Graves Walker v. Pennsylvania Company for Insurances on Lives and Granting Annuities et al. . Bill in equity to declare signature a forgery, for injunction, for discovery, and for an accounting. Before Martin, P. J. The court entered a decree in accordance with the prayer of the bill.

<p>Negligence — Master and servant — Death—Mines and mining— Proximate cause — Act of June 9,1911, P. L. 798.</p> <p>1. There is no legal excuse for a failure to obey an absolute statutory requirement.</p> <p>2. A mine owner violates the statutory duty imposed upon him by the Act of June 9, 1911, P. L. 798, and, unless contributory negligence intervenes, is liable for an injury resulting therefrom, if he permits “electric haulage by locomotives operated from a trolley wire......in any gaseous portions <jf mines, except upon intake air, fresh from the outside.”</p> <p>3. Ordinarily the proximate cause of an accident is the one without which the accident could not have happened.</p> <p>4. If there are two or more proximate causes of an accident, one of which is the breach of an absolute statutory duty, the party who disobeys the statute is liable therefor, even though the injury would not have happened without the concurrence of another cause.</p> <p>5. In determining whether a party should he held liable for an injury to another, ordinarily the items to he considered are: 1st. What caused the injury? 2d. What was the proximate cause thereof? 3d. Did any act or negligence of the defendant bring about the result ? 4th. Did defendant violate any duty owed to plaintiff ?</p> <p>5th. Did any act or negligence of plaintiff, or of those through whom plaintiff claims, contribute to the injury? If all those questions are answered in favor of plaintiff a recovery can be had.</p> <p>6. Lapse of time gave to defendants constructive notice of the gaseous condition of the mine; and the actual knowledge of the • superintendent is imputed to the mine owners.</p> <p>Supreme Court practice — Appeals — Judgment n. o. v. — Subsequent appeal by defendant.</p> <p>7. Where the Supreme Court reverses a judgment n. o. v., a subsequent appeal will be allowed the losing party if he desires to have reviewed exceptions taken by him at the trial.</p> <p>Mr. Justice Frazer dissents.</p>

<p>Vendor and vendee — Exchange of real estate — Fraudulent representations — Measure of damages — Net rentals — Evidence.</p> <p>1. Where, on an issue to determine what was due ón a judgment confessed on a bond accompanying a mortgage, it appears that plaintiff, owning an apartment house, entered into an agreement in writing with defendants, owning a farm, for the exchange of the two properties, that the agreement stated no agreed values, but that defendants should execute to plaintiff the bond and mortgage on the apartment house, being the bond on which the judgment was entered, and the defendants claim that they were fraudulently misinformed by plaintiff as to the net income from the apartment house, defendants’ measure of damages for the deceit is, in the absence of any evidence of a special contractual agreement to the contrary, the difference between the real, or market value of the property at the time of the transaction, and the higher or fictitious value, at which it was taken in exchange.</p> <p>2. In such a case it was not error for the trial judge to exclude a witness who undertook to base an estimate of depreciation of value solely upon a difference in net rentals.</p> <p>3. While, possibly, when all the relevant surroundings are known to a witness, rentals may be considered as an element in forming an opinion of the market value of the property, yet they never can constitute an exclusive standard for the purpose.</p> <p>Practice, G. P. — Trial—Exclusion of evidence — Assignment of error — Exception.</p> <p>4. Where evidence is excluded because the party who offered it practically withdraws his offer, but the trial judge voluntarily notes an exception, the appellate court cannot consider the ruling if the record shows that it was not assigned as error.</p> <p>Practice, O. P. — Trial—Review—Confusion at trial.</p> <p>5. An appellant is not entitled to claim that he should have another trial, because of an alleged confusion at the trial under review, regarding the proper measure of damages, where it appears that the confusion was brought about by himself, through an endeavor to enforce a standard, or measure of damages, he was not able to sustain.</p>

<p>Workmen’s Compensation Act — Death—Findings of board— Course of employment — Evidence.</p> <p>A decision, of the Workmen’s Compensation Board, holding that a woman was entitled to compensation for the death of her husband, as the result of an accident or injury occurring in the course of his employment, will be sustained where the evidence tended to show that the deceased was found dead at 7:80 p. m. of a December evening, lying between the wheels of a wagon, which he was driving to the stable at the end of his day’s work, that the wheel of the wagon, as well as the body of deceased, upon which there were bruises and blood stains, were in a gully or washout when discovered ; that deceased was a sober man, and in good health at the time of his death; and that the report of the coroner’s physician stated that death was probably due to bodily injuries.</p>

<p>Appeal, No. 215, Jan. T., 1919, by defendants, from judgment of C. P. No. 1, Philadelphia Co., June T., 1918, No. 1585, dismissing appeal from decision of Workmen’s Compensation Board in case of Freda Murdock v. New York News Bureau and The Employers Liability Assurance • Corporation, Limited (Insurance Carrier).</p> <p>Appeal from decision of Workmen’s Compensation Board.</p> <p>The court dismissed the appeal from the decision of the Workmen’s Compensation Board. Defendants appealed.</p> <p>Error. assigned was the judgment of the court.</p>

<p>Telephone companies — Merger—Competing lines — Classification —Public policy — Constitutional law — ■Article VI, Section 12, of the Constitution.</p> <p>1. The Pennsylvania statutes and constitutional provisions relative to the consolidation of telegraph companies are applicable to telephone companies and therefore a merger of telephone companies owning competing lines violates Article VI, Section 12, of the Constitution providing that “no telegraph company shall consolidate with or hold a controlling interest in the stock or bonds of any other telegraph company owning a competing line.” .</p> <p>2. Telephone companies in Pennsylvania, existing only under statutes providing for the incorporation of telegraph companies, are classified with them, and, this being in the nature of a pronouncement of public policy by the legislature along lines of expediency, the courts are bound thereby, at least so long as the legislative attitude continues.</p>

<p>Negligence — Street railways — Failure to give warning — Speed— Contributory negligence — Presumption—"Stop, looh and listen.”</p> <p>1. A verdict and judgment against an electric street railway company for personal injuries to a pedestrian, will be sustained, where the evidence for plaintiff tends to show that the plaintiff approached a grade crossing of defendant’s railway on a foggy night; that before crossing the rear track she stopped, looked and listened; that as she cleared the second track, she was struck by the overhang of an electric car; that there was a curve at the point, so that the headlight of the car did not light up the track far in advance; that there were no gates, bell or watchman at the crossing; that the car was running at a rate of about fifteen miles per hour; and that no signal or warning was given of its approach.</p> <p>2. In such a case the mere fact of the accident did not convict plaintiff of contributory negligence. The presumption is that she used due Care.</p> <p>3. The absence of watchman, bell or gate at a grade crossing, requires of a motorman a greater burden of care; and this is especially the case on a foggy night.</p> <p>4. One who stops and looks before crossing a railroad is presumed to listen.</p> <p>5. A pedestrian who has stopped before crossing the first track, is not required again to stop between the tracks, but must continue ' to use care. •</p>

<p>Appeals, Nos. 186, 187, 202, 203 and 204, Jan. T., 1919, by Pennsylvania Co. for Ins. on Lives, etc., Trustee of John J. Loewer and Bertha E. Loewer et al., from decree of O. C. Philadelphia Co., Oct. T., 1904, No. 601, dismissing exceptions to adjudication in Estate of John J. Loewer, deceased.</p> <p>Exceptions to adjudication. Before Lamorelle, J.</p> <p>• The court dismissed the exceptions.</p> <p>Errors assigned were in dismissing exceptions to adjudication.</p> <p>The enhanced value of stock of a corporation, due to the undivided surplus profits, belongs to the remaindermen, and not to the legatee for life: Moss’ App., 83 Pa. 264; Smith’s Est., 140 Pa. 344; Eisner’s App., 175 Pa. 143; Connolly’s Est. (No. 1), 198 Pa. 137; Adams’ Est., 66 Pittsburgh Legal Journ. 89.</p> <p>This case is ruled by Letterle’s Est., 248 Pa. 95, and Weir’s Est., 251 Pa. 499.</p>

<p>Partnership — Dissolution—Transfer of assets — Promissory notes of retiring partner — Affidavit of defense — Fraud—■Waiver—Rescission of contract — Entire and severable contracts.</p> <p>1. Where a partnership is dissolved and the agreement of dissolution covers many distinct matters, among which is a transfer to the retiring partner of bonds and shares of a corporation, in consideration for which he gives his promissory notes maturing at stated periods during a course of years, such partner cannot, after he has paid a number of notes, set up, in an affidavit of defense, in a suit brought by the receivers of the other partners, against him op the other notes, that the value of the bonds and stock transferred to him, had been fraudulently diminished by the improper conduct of the other partners, if it ,appears that, after he had discovered the fraud, he delayed for several years without making any offer to rescind the settlement as a whole, and in the affidavit of defense makes no averment as to the amount in which he had been injured by the alleged fraud. •</p> <p>2. Where a party desires to rescind upon the ground of mistake or fraud, he must, upon the discovery of the facts, at once announce his purpose, and adhere to it. If he be silent, and continue to treat the property as his own, he will be held to have waived the objection, and will be conclusively bound by the contract, as if the mistake or fraud had not occurred.</p>

<p>Appeal, No. 72, Jan. T., 1919, by defendant, from decree of C. P. No. 2, Philadelphia Co., Dec. T., 1917, No. 4598, awarding injunction in case of Anna J. Hibberd and Emma E. Lawrie v. Ignatz Greenstein.</p> <p>Bill in equity for an injunction. Before Wessel, J.</p> <p>Errors assigned were various findings and the decree awarding injunction.</p> <p>Where a party relies on .the statute of limitations to prove a title he must show that he and those under whom he claims entered into possession 'Of the premises under a claim of right and have had actual, adverse, continued, visible, notorious, distinct and hostile possession thereof for the full period of twenty-one years: Johns v. Johns, 244 Pa. 48; O’Boyle v. Kelly, 249 Pa. 13; Cannon v. Jackson, 252 Pa. 257.</p> <p>The burden is upon the party claiming by adverse possession to show when his adverse holding began: O’Boyle v. Kelly, 249 Pa. 13.</p> <p>The findings and conclusions of the court below are fully warranted by the authorities: Woodbury v. Allan, 215 Pa. 390; Dimling v. Klauss, 63 Pittsburgh Leg. Journ. 437; Whitney v. Welshans, 50 Pa. Superior Ct. 422; Scranton v. Scranton Coal Co., 256 Pa. 322.</p>

<p>Appeals, Nos. 97 and 98, by plaintiffs, from judgment of C. P. No. 2, Philadelphia Co'., March. T., 1915, No. 2749, on verdict for defendant in case of Felix Petrowski by his father and next friend, John Petrowski and John Petrowski in his own right, v. Philadelphia & Reading Railway Company.</p> <p>Trespass to recover damages for personal injuries to a boy twelve years old. Before Rogers, J.</p> <p>Verdict and judgment for defendant. Plaintiffs ap- • pealed.</p> <p>Errors assigned were various rulings on evidence, and instructions.</p> <p>It is not by secret orders or instructions given an employee that the responsibility of the master is determined but the master is responsible for acts done within the general line of duty or scope of employment: McClung v. Dearborne, 134 Pa. 396; Simmons v. Penna. R. R. Co., 199 Pa. 232; Marcus v. Gimbel Bros., 231 Pa. 200; Dunne v. P. R. R., 249 Pa. 76.</p> <p>The wilfulness and degree of negligence and recklessness of the act of the employee is important as affecting the question whether or not the particular act was done within the scope of the employment, but a child, as in the case at bar, need not show that he was driven by the employee wilfully, with gross negligence and recklessness from the train: Brennan v. Merchants & Co., 205 Pa. 258; Guinney v. Hand, 153 Pa. 404; Schimpf v. Harris, 185 Pa. 46; Dunne v. Penna. R. R. Co., 249 Pa. 76; Stephanik v. B. & O. R. R. Co., 243 Pa. 43; Pollack v. Penna. R. R. Co., 210 Pa. 631; Enright v; Pittsburgh Junction R. R. Co., 19S Pa. 166; Hyman v, Tilton, 208 Pa. 641; Geltzer v. Phila. R. T. Co., 54 Pa. Superior Ct. 492; Berreski v. Phila. Electric Co., 62 Pa. Superior Ct. 62; McGinnis y. Peoples Bros., 249 Pa. 335.</p> <p>cited: Faust v. Phila. & Beading By. Co., 191 Pa. 420; Brennan v. Merchant, 205 Pa. 258; Christian v. Phila. Bapid Transit Co., 244 Pa. 391; McGinnis v. Peoples Bros., 249 Pa. 335; Knickerbocker Ice Co. y. Penna. B. B. Co., 253 Pa. 54.</p>

<p>Negligence — Automobiles—Pedestrian—Grossing—Case for jury.</p> <p>1. In an action by a pedestrian struck and injured by defendant’s motor truck at a crossing, the case is for the jury, where the evidence for plaintiff tends to show that defendant’s driver approached a point where the street on which he was driving intercepted but did not cross another street, so that he had to turn one way or the other at the intersection; that the street was slippery at the time of the accident; that plaintiff stopped and looked and then attempted to cross the street on which the truck was approaching, but before reaching the opposite side was struck by the machine; that as the driver applied the brakes, the car skidded and swung around, striking plaintiff with such force as to throw him into the air; and that the truck turned around completely three or four times before finally coming to a stop against the curb.</p> <p>2. In such a case the action of the car upon the application of the brakes, and the position in which it was at the time it finally stopped, might warrant the inference that it was traveling at a much higher speed than that claimed by the driver, or that, regardless of the question of actual speed, he failed to have it under such control as the condition of the street and the position of plaintiff required.</p>

<p>Appeals, Nos. 137 and 138, Jan. T., 1919, by plaintiffs, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1913, No. 1716, on verdict for defendant in case of Florence M. Cody and George A. Cody v. Frederick M. Venzie.</p> <p>Trespass to recover damages for personal injuries. Before McMichael, P. J.</p> <p>At the trial the court gave binding instructions for defendant.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 52, Jan. T., 1919, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., June T., 1916, No. 4805, in Equity, dismissing plaintiff’s bill in the case of Harry Besterman v. Sarah Besterman et al.</p> <p>Bill in equity by husband against wife to have her declared a trustee of money and real estate given to her before and after marriage. Before Ferguson, J.</p> <p>The court dismissed the plaintiff’s bill.</p> <p>The court made the following findings of fact and conclusions of law:</p> <p>findings of fact.</p> <p>On the bill, answer and proofs, the court finds the following facts:</p> <p>1. Plaintiff was a boxer and gained his livelihood in fistic encounters. He began his career at an early age and as a result of accidents finally quitted activities of the sort in the year 1914. He had known the defendant for some time, and in January, 1908, they were married privately in New York, and publicly, by Jewish ceremony, in Philadelphia on June 3, 1909.</p> <p>2. Having considerable success during the time of his active career as a fighter, the plaintiff was liberal with the money he received. From time to time he made gifts to his wife, who appears to have been of a frugal mind, and saved a part of what was given to her. At the time the bill was filed in this case she had on deposit in several banks in Philadelphia the sum of $2,-204.01.</p> <p>3. The defendant had no money before the marriage and what she has in bank represents the residue of what was given to her by the plaintiff.</p> <p>4. The total amount given to defendant by plaintiff is uncertain. It did not amount to the sum of $70,000, alleged in the bill, but was very much less. The plaintiff, feeling some elation over the success of his fights, generously made gifts to his wife without conditions or limitations.</p> <p>5. On the day of the marriage the plaintiff executed and delivered a deed to the defendant, conveying to her premises No. 1624 South Twentieth street, Philadelphia. The title to this property has remained in the defendant since that date.</p> <p>She has received the rents, and the repairs and other charges have been paid for by her or by her agent out of the rents. The agent also, for a time, paid out of the rents certain building association dues which stood in the name of the plaintiff.</p> <p>6. This conveyance was a gift made in contemplation of' marriage, and no conditions or limitations were placed upon it, and no trust was imposed.</p> <p>7. In August, 1916, the plaintiff and defendant became estranged, and since that time have been living apart from each other.</p> <p>8. The defendant, after the plaintiff’s career as a boxer ended, used a part of the money she had saved from the living expenses of herself and the plaintiff.</p> <p>9. Until the parties became estranged no demand was made by the plaintiff on the defendant for a return of the money she had in bank or for a reconveyance of the house on Twentieth street.</p> <p>CONCLUSIONS OB’ LAW.</p> <p>1. 'A husband may make a valid gift of real or personal estate to his wife or to the woman he proposes to marry.</p> <p>2. In the absence of a trust imposed or circumstances indicating fraud or deceit, the title and ownership of the wife in such real or personal estate is good and cannot be disturbed.</p> <p>3. The bill should be dismissed.</p> <p>Errors assigned were refusal to affirm certain requests for findings of fact, rulings on admissibility of evidence, and the decree of the court.</p>

<p>Appeal, No. 56, Jan. T., 1919, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1915, No. 3780, refusing to take off nonsuit in the case of Enrico Tilli, Administrator of the Estate of Vincenzo Tilli, deceased, v. Philadelphia & Reading Railway Company.</p> <p>Trespass under Federal Employers’ Liability Act to recover damages for death of plaintiff’s decedent. Before Rogers, J.</p> <p>The court entered a nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned, among others, was refusal to take off nonsuit.</p>

<p>Negligence — Street railways — Collision between street car and carriage — Evidence—N onsuit.</p> <p>A nonsuit is properly entered- in an action for personal injuries against a street railway company, where the evidence fails to show negligent operation of the street car which ran into the carriage in which the injured plaintiff was riding, and it appears that the driver of the carriage suddenly turned into the track in front of the approaching ear.</p>

Appeals, Nos. 232, 233,234,235, 236, 237, 238, 239 and 240, Jan. T., 1919, by defendant, from judgment of C. P. No. 3, Philadelphia Co., June T., 1918, Nos. 3162, 3165, 3166, 3155, 3156, 3158, 3159, 3161 and 3167, in favor of plaintiffs in actions to recover amount paid for taxes in the cases of Philadelphia City Passenger Railway Company v. Philadelphia Rapid Transit Company; Thirteenth and Fifteenth Streets Passenger Railway 'Company of Philadelphia v. Same; Ridge Avenue…

<p>Negligence — Infant—Collision between child and horse — City street — Stepping in front of horse — Nonsuit.</p> <p>A nonsuit is properly entered in an action for personal injuries sustained by an eight-year-old boy run over by a horse in a street where it appears that the boy stepped off the sidewalk when the horse’s head was but three feet away, as it was proceeding on a trot, and that the horse was stopped after it had traveled about five feet further.</p>

<p>Master and servant — Negligence—•Injury to employee — Safe place to worh — Duty to warn employee of concealed dangers — Excavation — Uneven bottom covered with discolored water.</p> <p>1. One who employs his servant to work in an excavation, when he takes upon himself the direction and control of the work is bound to see that the place is reasonably safe to work in when the servant enters it; and if it is actually unsafe and the danger is one which is concealed, he must inform the servant of the danger.</p> <p>2. An employer is liable for injury to an employee, caused by falling into a deep hole in the floor of an excavation while he was attempting to spread concrete over the bottom of the excavation which was covered with discolored water, where the master must have known of the unevenness of the bottom, and yet advised the employee that the place was safe to walk upon.</p>

<p>Negligence — Gamer—Ferry boat — Jolt in making landing — Injury to passenger — Contributory negligence — Leaving seat — Question for the jury.</p> <p>Evidence that a passenger standing on a ferry boat was injured by being thrown to the deck from the boat coming in collision with the slip in making the landing, justifies the submission of the question to the jury of the negligence of the defendant and the contributory negligence of the plaintiff, where it appeared that in making the landing there was a slight jar which was followed by a collision with force and violence, causing the injury complained of and that the plaintiff who was about to make the landing from the boat, left her seat in the cabin, the door having been opened by the deck hands, and stepped upon the deck.</p>

<p>Instructions to jury — Inadequacy — Failure to present requests for instructions — Appeal.</p> <p>1. A party is not in a position to complain of the inadequacy of the instructions to the jury where he fails to present requests for instructions, especially where the trial judge stated to counsel that if they would frame a point covering anything they desired him to say, he would answer it.</p> <p>Negligence — Instructions to jury — Damages for personal injury —Nervous disorders — Fright—Hysteria.</p> <p>2. An instruction to a jury in an action for personal injuries alleged to have been caused by defendant’s negligence, was to the effect that if the jury believe that the plaintiff “is suffering from some physical injury which resulted from the accident, then you should return a verdict in her favor for such a sum of money as you believe, paid to her tó-day, will compensate her for the financial loss she suffered by reason of the negligence of the defendant’s employees at the time and place to which I have already adverted.” To which the court added, when counsel suggested that the instruction carried with it the inference that if there was a physical injury, sh’e was entitled to all her loss: “You understand that any verdict you render in favor of the plaintiff in this ease must only be compensation for the physical injuries that have resulted by reason of this accident, together with compensation for such nervous disorders as are connected with and naturally result from the physical injury, but there can be no recovery by the plaintiff of any amount on account of fright or mere hysteria.” Held, that the instruction was entirely free from error whether standing alone or in connection with the other portions of the charge.</p>