Volume 264 — Pennsylvania State Reports

<p>Appeal, No. 130, Jan. T., 1919, by defendant, from judgment of C. P. No. 2, Philadelphia Co., June T., 1917, No. 1644, on a verdict for plaintiff in the case of Morris Faber v. Gimbel Brothers.</p> <p>Trespass for damages for personal injuries. Before Barratt, P. J.</p> <p>Verdict for plaintiff for $15,500, upon which judgment was entered.</p> <p>Errors assigned were rulings on evidence, and refusing to withdraw a juror on account of remarks of counsel.</p>

<p>Appeal, No. 136, Jan. T., 1919, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1917, No. 3447, directing a verdict for defendant in case of Carl Winch v. City of Philadelphia.</p> <p>Assumpsit to recover salary alleged to be due. Before Davis, J.</p> <p>The court gave binding instructions for defendant.</p> <p>The court overruled plaintiff’s motion for a new trial and for judgment non obstante veredicto. Plaintiff ap pealed.</p> <p>Errors assigned were answers to requests for instructions and refusal of plaintiff’s motion for judgment n. o. v.</p>

<p>Appeal, No. 140, Jan. T., 1919, by defendant, from judgment of C. P. No. 3, Philadelphia Co., Jan. T., 1918, No. 539, for want of a sufficient affidavit of defense in the case of the Permutit Company v. Richard L. Wallace, trading as Richard L. Wallace & Co.</p> <p>Action in assumpsit to recover balance of purchase price for a filter plant. Before Ferguson, J. .</p> <p>Rule for judgment for want of a sufficient affidavit of defense made absolute. Damages assessed at $2,000.54. Defendant appealed.</p> <p>Error assigned was in entering judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 142, Jan. T., 1919, by plaintiff, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1917, No. 6158, on a verdict for defendant in case of William McMillen, Administrator of the Estate of John McMillen, deceased, v. Henry E. Strathmann, Jr., Administrator of the Estate of Henry E. Strathmann, deceased.</p> <p>Trespass for the death of a child caused by being struck by an automobile truck. Before Martin, P. J.</p> <p>The verdict was for defendant and judgment was entered thereon.</p> <p>The court overruled the plaintiffs motion for a new trial. Plaintiff appealed.</p> <p>Errors assigned were instructions to the jury, and rulings on evidence.</p>

<p>Appeal, No. 194, Jan. T., 1918, by defendant, frota judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1916, No. 2929, on a verdict for plaintiff in case of Walter G-. Lamont v. Adams Express Company.</p> <p>Trespass for personal injuries. Before Rogers, J.</p> <p>Verdict for plaintiff for $9,757, upon which judgment was entered.</p> <p>The court overruled defendant’s motion for judgment non obstante veredicto and for a new trial. Defendant appealed.</p> <p>Errors assigned, among others, were overruling motion for judgment n. o. v. and for a new trial, and answers to points.</p>

<p>Appeal, No. 213, Jan. T., 1919, by plaintiff, from decree of C. P. No. 5, Philadelphia Co., June T., 1915, No. 2109, in Equity, dismissing exceptions to defendant’s account and confirming the account in case of David Fishman v. Morris Brown.</p> <p>Bill in equity praying for dissolution of a partnership, the appointment of a receiver, and for an accounting. Before Martin, P. J.</p> <p>The court decreed a dissolution of the partnership and directed the defendant to file an account.</p> <p>The court approved and confirmed the account and dismissed plaintiff’s exceptions thereto. Plaintiff appealed.</p> <p>Errors assigned were dismissing exceptions to the account and the decree of the court.</p>

<p>Workmen’s compensation — Finding of fact by compensation board — Review by court.</p> <p>A finding of fact by the referee approved by the compensation board, to the effect that a deceased workman was engaged in the course of his employment at the time of the accident which resulted in his death, is one of fact, and will not be reviewed by the court.</p>

Appeal, No. 65, Jan. T., 1919, by defendant, from judgment of C. P. No. 1, PMladelpMa Co., March T., 1915, No. 3943, on a verdict for plaintiff in case of Sarah Q. Henry, Administratrix of the Estate of John J. Henry, deceased, v. City of Philadelphia. Trespass to recover damages for personal injuries to plaintiff’s husband.

Appeals, Nos. 59 and 60, Jan. T., 1919, by plaintiffs, from order of C. P. No. 2, Philadelphia Co., March T.,. 1915, No. 4762, refusing to take off nonsuit in case of Joseph Terletski, by his father and next friend Michael Terletski, and Michael Terletski in his own right, v. Phila. & Reading Ry. Company. Trespass to recover damages for personal injuries. Before Barratt, P. J. At the trial the court entered a compulsory nonsuit which it subsequently refused to take off.

<p>Negligence — Master and servant — Safe place to worlc — Case for jury.</p> <p>Where, in a negligence ease, it appears that the plaintiff was a molder’s assistant, and that he was injured by a ladle containing molten metal carried by a fellow workman colliding with him, the ease is for the jury, where the negligence charged, was the narrowness of an alleyway in which the men wore working, and the proof was, that in the view of its narrowness, the alleyway was not a reasonably safe place in which the men were compelled to perform their duties.</p>

Appeal, No. 173, Jan. T., 1919, by plaintiff, from decree of C. P. No. 3, Philadelphia Co., Dec. T., 1916, No. 4413, dismissing bill in equity in case of Colonial Biscuit Company v. Charles Orcutt. Bill in equity for the cancellation of stock. Ferguson, J., after stating facts and conclusion of law discussed the case as follows: On May 13,1908, a receiver was appointed to take over and conduct the business of the Colonial Biscuit Company.

Appeal, No. 178, Jan. T., 1919, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1914, No. 847, on verdict for plaintiff in case of John P. Feeney, a minor, by his mother and next friend, v. Maryland Casualty Company. Assumpsit on an alleged contract. Before Rogers, J. At the trial the jury returned a verdict for plaintiff for $2,830. Defendant moved for judgment n. o. v., which was refused, and judgment entered for plaintiff. Defendant appealed.

<p>Contract — Consideration—Fraud—Evidence— Receipt — Principal and agent — Disclosed principal — Decedents’ estates.</p> <p>1. At tbe audit of the account of an executor of an insolvent decedent a claim was presented for $25,000 based on a writing signed by decedent. It appeared that decedent had been the president of a street railway company, and that the claimant was a plumber. Two years before decedent’s death it was discovered that the railway company had been illicitly tapping fire lines and unlawfully using city water. Claimant found this out, and suggested to decedent that, if he were given the contract to meter the fire lines, he could arrange it so that the city would make no claim for water previously illicitly used. An oral contract was then made by which a certain amount was fixed for construction work, and a further sum of fifteen per cent on the savings due to such metering. Claimant was paid by the company for the construction work and receipted in full “for all services rendered.” Subsequently claimant pressed the decedent to pay him the percentage for the saving, and as a result decedent prepared a paper which was signed by both. In this paper it was recited that claimant had agreed to accept $25,-000 in full payment for metering and that decedent had agreed to pay fifteen per cent on the savings from the metering. The decedent bound himself, his heirs, executors and assigns, and the company, to protect claimant for the full amount of $25,000, further stating, “I will see the above sum is paid you in amounts as may be required from time to time for your personal use.” The consideration was stated in the following language: “In consideration of the faithful and efficient service rendered by you to the company, and to me in the matter of metering the fire lines for the company.”</p> <p>2. The only allegation of fraud was that claimant had deceived decedent into the original agreement, not that the contract in question grew out of fraud against the city. The court found as a fact from the evidence in the case that the promise of the payment of percentage on the savings was the express promise of the decedent, and that there was no fraud. Held, (1) that the receipt to the company did not' bar claimant from demanding payment of the percentage from the decedent’s estate; (2) that the writing and the other evidence were sufficient to establish a contract of the decedent based on a valuable consideration to pay claimant the Sum of $25,-000; (3) the evidence was not sufficient to establish fraud; and (4) there was a valuable consideration.</p>

<p>Appeal, No. 30, Jan. T., 1919, by Angelina Kern Schaffer, from decree of O. C. Lehigh Co., Jan. T., 1914, No. 38, refusing specific performance in Estate of Charles Losch, deceased.</p> <p>Petition for specific performance.</p> <p>Geoman, P. J., filed the following opinion:</p> <p>Charles Losch died testate on or about the 17th day of November, 1913. Five days before his death, on November 12, 1913, it is alleged he signed the following paper writing:</p> <p>“I will give my home Furnished as it now is all of 619. Linden st. to my present housekeeper who is now takeing care of me to Angelina Kern. For special favors and honest kind work and good service she has done for me during the last three month and before, she shall have my home which I promised to her. Also for the last three years past for staying with me. to the end of my life. I name and order my executor James Kressler. lawful to sign said Deed over to in her name, and after my death to hand and deliver said deed to her. Angelina Kern. Witness my hand and seal. (Signed) Charles Losch (Seal) In- the presence of Angie Kern.”</p> <p>On October 21, 1917, Angelina Kern, now Schaffer, filed a petition in the Orphans’ Court of Lehigh County, Pennsylvania, praying for specific performance and a decree, founded on said prayer, claiming it to be a contract. The answer denies such construction of it, but contends that it is testamentary in its character. Blackstone defines a will as “The legal declaration of a man’s intention which he wills to be performed after his death”; Kent’s Commentaries defines it as a writing disposing of real and personal property, or both, to take effect after the death of the maker, and such writing is generally denominated as “last will and testament.” The writing is not restricted to any particular form under statutory provision, or any particular language, if the obvious purpose of the writing is to effect a disposition of the maker’s property after death. The essence of the definitions relative to a will is that it is a disposition to take effect after death; whatever the form of the instrument, if it vests no present interest, but only directs what is to be done after the death of the maker, it is testamentary: Turner v. Scott, 51 Pa. 126; Wilson v. Van Leer, 108 Pa. 600; Megary’s Est., 206 Pa. 260.</p> <p>Turning to said writing and eliminating words not directly essential, so as to secure a proper perspective, we find it would read as follows: “I will give my home ......619 Linden St. to......Angelina Kern. For special favors and honest kind work and good service ......during the last three month and before. She shall have my home which I promised to her......for staying with me. to the end of my life. I......order my executor James Kressler......to sign said deed ...... and after my death to hand and deliver...... said deed to......Angelina Kern.” The maker of the writing was then quite old, and the writing was made within a few days of his death. The beneficiary named in it, had been with him as housekeeper for upwards of three years; the maker evidently intended to further provide for her for the care and attention she had given him in his later years; the paper indicates that such was the moving cause; the language used is as follows: “for special favors and honest kind work and good service she has done for me during the last three month and before. She shall have my home which I promised to her. Also for the last three years past for staying with me. to the end of my life.” That the writing was to take effect in futuro is shown by the following expressions used: “I will give,” “She shall have,” “I name and order my executor, James Kressler lawful to sign said deed over to in her name, and after my death to hand and deliver said deed to her, Angelina Kern.” She was to have no present interest; what was to be done to make the writing effective, was to be done by the executor, after the maker’s death. It was testamentary in its character.</p> <p>Now April 1,1918, prayer for specific performance refused.</p> <p>Petitioner, Angelina Kern Kessler, appealed.</p> <p>Error assigned was decree of the court.</p>

<p>Criminal law — Murder—Evidence—Threats—Malice.</p> <p>On the trial of an indictment for murder, it is not error to admit evidence that defendant employed as a miner by the deceased, and on a strike, threatened shortly before th^ killing to “fix the clock” of the deceased, and made threats against the deceased and other men who were working in the mine. Such evidence is proper to show malice, hatred and ill will on the part of the defendant towards his victim.</p>

<p>Will — Revise—Estate in fee — Marketable title.</p> <p>Where a testator gives to his daughter, her heirs and assigns, one-fourth of all his estate, and later in his will Says “I request the executors......to grant and convey by deed my home and house and thirty acres where I now live to my daughter......for $1500 payable out of her interest and bequest given to her in this will,” and the daughter elects to take the homestead, a deed to her by the executors gives to her a good marketable title in fee, not affected by a later clause in the will, which directs that “when my daughter and her husband die all the bequests I leave to my daughter that is in their possession shall fall back to the original” and be divided between two persons specified.</p>

<p>Practice, C. P. — New trial — Discretion—Avoidance of injustice —Review—Supreme Court.</p> <p>The appellate court will not review the discretion of the trial court in granting a new trial, where it appears that the court granted the new trial because it was of the opinion, from the admitted facts before it, that an injustice had plainly been done the plaintiff; although it was also of the opinion that on the case presented, its action in directing a verdict for the defendant was clearly right, and that no valid legal reasons were produced for granting a new trial.</p>

<p>Appeal, No. 159, Oct. T., 1918, by Stewart Johnston, from decree of O. C. Allegheny Co., Jan. T., 1917, No. 243, charging annuity on land In re Estate of Wm. G. Johnston.</p> <p>Petition to pay annuity. Before Miller, J.</p> <p>The court entered the following decree:</p> <p>And now, to wit, August 3, 1918, this matter came on to be heard upon exceptions to the opinion and decree of the trial judge, and after consideration thereof and argument by counsel, said exceptions are dismissed, and it is now ordered and decreed as follows:</p> <p>That there is due at this time from Stewart Johnston, Trustee, under the will of William G. Johnston, deceased, to Julia G. E. Johnston, the petitioner on account of the annuity of $6,000 given her by article II of the will of said William G. Johnston, deceased, the following sums:......[aggregating $6,500 with interest].</p> <p>That said sums with interest aforesaid are a charge on the real estate of the decedent in the hands of said trustee; said real estate being situate at the corner of Penn avenue and Ninth street, in the City of Pittsburgh, Allegheny County, Pennsylvania, and designated as Nos. 900, 902, 904, 906 Penn avenue.</p> <p>It is further ordered and decreed that Stewart Johnston, trustee aforesaid, pay the amounts above set forth within thirty (30) days from the date of this decree and that in default of such payment such proceedings for the collection thereof may be instituted as is provided by law.</p> <p>Stewart Johnson, the trustee, appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 255, Jan. T., 1919, by The Albion Society of Philadelphia, from decree of C. P. Montgomery Co., Sept. T., 1916, No. 87, dismissing exceptions to auditor’s report in the Estate of Henry Lawson, Deceased.</p> <p>Exceptions to auditor’s report making distribution of balance of estate in hands of trustee. Before Solly, J.</p> <p>Before the auditor, The Albion Society of Philadelphia, an unincorporated society, claimed under the will one-half of the testator’s residuary estate. The auditor disallowed the claim on the ground that the bequest was a gift for a charitable use and void because the will was executed within thirty days before the testator’s death.</p> <p>The court dismissed the exceptions to the auditor’s report.</p> <p>Errors assigned were the decree of the court dismissing the exceptions to the auditor’s report and confirming the report making distribution.</p>

<p>Appeal, No. 5, Oct. T., 1919, by defendant, from judgment of O. & T. Allegheny Co., Sept. T., 1913, No. 33, on verdicts of murder of the first degree and murder of the second degree in case of Commonwealth v. Robert Henry Brown.</p> <p>Indictment for murder of Wm. J. Elford and Chas. L. Edinger. Before Swearingen, J.</p> <p>Verdict of guilty of murder of the first degree as to Wm. J. Elford and of murder of the second degree as to Charles L. Edinger. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions set forth in the opinion of the Supreme Court.</p>

<p>Appeals, Nos. 15 and 16, Jan. T., 1919, by defendant, from judgments of C. P. No. 2, Phila. Co., June T., 1914, No. 2618, on verdicts for plaintiffs in case of John Minute, by his next friend and father, Albano Minute, and Albano Minute, in his own right, v. Philadelphia & Reading Railway Company.</p> <p>Trespass by a boy nine years old and his father to recover damages for personal injuries. Before Wessel, J.</p> <p>Vérdict and judgment for John Minute for $7,500, and for Albano Minute for $2,500. Defendant appealed.</p> <p>Errors assigned were in overruling defendant’s motion for judgments n. o. v.</p>

<p>Appeal, No. 80, Jan. T., 1919, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1914, No. 2297, on verdict for plaintiff in case of Blanche E. Anderson, Administratrix of the Estate of John A. Anderson, deceased, v. Thomas D. Wood.</p> <p>Before Brown, C. J., Moschzisker, Frazer, Walling and Kephart, JJ.</p> <p>Trespass to recover damages for personal injuries. Before Rogers, J.</p> <p>Verdict and judgment for plaintiff for $3,500. Defendant appealed.</p> <p>Error assigned was in refusing judgment for defendant n. o. v.</p>

<p>Negligence — Master and servant — Safe place to worlc — Scaffolding — Insecure guard rail.</p> <p>1. Where the superintendent of a building contractor, erects a scaffold upon which the workmen must stand at their work, and attaches to the Scaffold a handrail in an insecure manner, but in such a way that the insecure construction is not obvious, a workman, who without knowledge of the defect, grasps the rail when the scaffold lurches from some unknown cause, and is thrown by the rail giving way, may recover damages from his employer for injuries which he sustained by the fall.</p> <p>2. In such a case the duty devolved upon the master to furnish a reasonably safe place to work, and the superintendent merely took the master’s place in the performance of the duty.</p> <p>3. Where a scaffold is unsafe because of one or more of these reasons, it is immaterial whether it is unsafe through faulty or unsuitable material or in its construction.</p>

<p>Appeal, No. 128, Jan. T., 1919, by defendant, from decree of C. P. No. 1, Philadelphia Co., June T., 1917, No. 5216, on bill in equity in case of Mabel B. Hatcher, Florence D. Kreibel (nee Hatcher) by her next friend, Mabel B. Hatcher, and Clifford Hatcher by his next friend, Mabel B. Hatcher, v. Charles W. Hatcher.</p> <p>Bill in equity for a conveyance of land. Before Shoemaker, J.</p> <p>The court below entered a decree for reconveyance.</p> <p>Errors assigned were various findings of fact and conclusions of law.</p>

<p>Appeal, No. 135, Jan. T., 1919, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., March T., 1916, No. 2704, on verdict for defendant in case of Frank Curran v. City of Philadelphia.</p> <p>Assumpsit on a municipal contract for. cleaning streets. Before Wessel, J.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned, among others, was in directing a verdict for defendant.</p>

<p>Negligence — Automobiles—Bight angle collision — ■Speed—Contributory negligence.</p> <p>1. It is the duty of an automobile driver in approaching a street crossing to have his car under control and observe if vehicles are approaching on the intersecting street, and in case a car or truck is first at the crossing, that vehicle must be given an opportunity to cross the intersecting street, and due care used to avoid collision.</p> <p>2. The driver of a car is not required to anticipate and guard against the want of ordinary care on the part of another.</p> <p>3. Where the driver of an automobile approaches an intersecting street at a speed of eight or ten miles an hour, and gives warning, he is not bound to guard against collision with a car approaching on such street at a speed of from thirty to thirty-five miles an hour, without warning, which he does not notice until the front end of his ear is about five feet from the nearest railway track on the intersecting street.</p>

<p>Criminal law — Murder—Evidence—Weapon — Declcwations of deceased— Degrees — Charge — Abstract question — Character •— Charge as to law — Presence of defendant in court — New trial — Assignments of error — Practice, Supreme Court.</p> <p>1. Where, on the trial of an indictment for murder, it is shown that a revolver with caliber similar to that used in the commission of the crime, was found in defendant’s room with one part removed, it is proper to permit the use of a like weapon, to demonstrate to the jury how the missing part could be removed.</p> <p>2. Declarations of a man who was murdered, made to his wife shortly before his death, are inadmissible, where there is no evidence that the deceased realized he was about to die, .and was without hope of recovery. The rule is the same whether such declarations are offered for or against the accused.</p> <p>3. Declarations of the person injured which tend to exculpate the accused, such as declarations expressing forgiveness or reluctance to prosecute, are not admissible, where they are not a part of res gestee or dying declarations.</p> <p>4. An offer at a murder trial, to prove that some months prior to the homicide, a man, other than the accused, had threatened to fix the deceased, and that such man had been in the vicinity on the day before the homicide, is inadmissible where there is nothing to connect the man with the offense.</p> <p>5. At a trial for murder the trial judge does not commit error by charging “We are concerned in the case only with the sort of murder in the first degree known as wilful, deliberate and premeditated.” This is different from saying “that sort of murder known as wilful, deliberate and premeditated.”</p> <p>6. It is proper in such a case to charge that the presumption is, that one who commits an illegal homicide is guilty of murder of the second degree, and that the burden is upon the Commonwealth to show such facts and circumstances as will raise the offense to first degree murder.</p> <p>7. In a murder case the court is not required to charge upon abstract questions not involved in the case, and this is emphatically true where no request is made therefor. Thus where the defense of an alibi is not suggested by the evidence, or raised by counsel, the court is not bound to explain to the jury the law relating thereto.</p> <p>8. The court properly charges, in a murder case, on character as follows: “If under all the evidence, including the evidence of good character, you are satisfied beyond a reasonable doubt of the guilt of the prisoner, you should convict, notwithstanding the evidence of good character. It is simply substantive evidence to be considered by you as such.”</p> <p>9. It is not error for the court in guch a case, to say to the jury “you are the judges of the facts, as I have tried to explain to you, and it is my duty to declare to you the law.” The best evidence the jurors have of the law is the instructions of the court.</p> <p>10. A conviction of murder of the first degree, will not be reversed, because the sheriff did not bring the defendant into court promptly at the time fixed for the argument of a motion for a new trial, and, by consent of counsel, the argument was begun in his absence.</p> <p>11. A motion and reasons for a new trial in a criminal ease should be Set out in the assignment of error relating thereto.</p>

<p>Negligence — Fall of stringer — Evidence.</p> <p>In an action to recover damages for personal injuries judgment for defendant n. o. v. is properly entered, -where the evidence shows that plaintiff, while working as an employee of a contractor on the premises of defendant, was hit on the head by a falling stringer, without any evidence whatever as to what caused its fall.</p>

<p>Zfe'óédenís’ estates — Udntract—Implied 'contract — Family relation — Note—Undelivered note — Evidence.</p> <p>1. There is no implied contract to pay 'for services rendered to a decedent while the family relation exists between the parties.</p> <p>2. No obligation arises by reason of an executed but undelivered note found in the possession of the maker thereof.</p> <p>3. Unless some connection is shown between an undelivered note found in a decedent’s possession, and an alleged liability of decedent to the payee named in the note, the note is not evidence of such liability.</p> <p>4. Loose expressions of a decedent to the effect that the claimant had worked faithfully for him, conjoined with the fact that an undelivered note in the claimant’s favor was found in decedent’s possession, will not alone justify an award for services rendered.</p>

<p>Appeal, No. 282, Jan. T., 1919, by Maria Carrell, from decree of O. C. Bucks Co., dismissing petition for appointment of appraisers in Estate of Isaac Carrell, deceased.</p> <p>Petition by widow for appointment of appraisers. Before Ryan, P. J.</p> <p>The court dismissed the petition. The widow appealed.</p> <p>Error assigned was decree dismissing the petition.</p>

<p>Appeal, No. 223, Jan. T., 1919, by plaintiff, from order of C. P. No. 3, Philadelphia Co., June T., 1918, No. 3153, discharging rule for judgment for want of a sufficient affidavit of defense in case of Federal Sales Company of Philadelphia v. George H. Farrell.</p> <p>Assumpsit on a promissory note.</p> <p>Rule for judgment for want of a sufficient affidavit of defense.</p> <p>Error assigned was in discharging the rule for judgment.</p>

<p>Appeal, No. 256, Jan. T., 1919, by plaintiff, from order of C. P. Lackawanna Co., Jan. T., 1918, No. 642, entering judgment for defendant in case of Rudolph Borman v. United Merchants Realty & Improvement Company.</p> <p>Trespass for negligence.</p> <p>Rule for judgment for want of a sufficient affidavit of defense in nature of demurrer.</p> <p>The statement of claim was as follows:</p> <p>“1. On the 12th day of February, 1916, the defendant company was the lessee of a certain building situate at the corner of Spruce street and Washington avenue in the City of Scranton.</p> <p>“2. The said building was a three-story frame building and basement. The ground floor of the said building was and is sub-divided into stores, two of said stores fronting on Washington avenue, and six stores fronting on Spruce street. The second and third floors were sublet by the said defendant company to various tenants, who used the said second and third floors for office purposes.</p> <p>“3. An entrance to the upper floors of the building was furnished by the said defendant on the Spruce street side of the building, which entrance was situate between two of the stores situate on the said Spruce street side.</p> <p>“4. On the aforesaid day and date a doorway was maintained on the Spruce street side of the building, which doorway was situate between the windows fronting upon the two stores upon the westerly end of the Spruce street side of the building. The door in this doorway, when open, led into an areaway or space wherein was placed a stairway or ladder which led into the cellarway between one of the said stories.</p> <p>“5. On the aforesaid day and date, the rooms immediately above the said doorway described above were occupied by a dentist.</p> <p>“6. The door and doorway leading into the cellar was constructed by a tenant of the defendant to whom the defendant had sublet one of the stores and the cellar underneath the said store. The said door and doorway were built by the said tenant with the express consent and permission of the defendant and has at all times been maintained in the condition in which it was maintained on the day and date of this accident with the express consent and permission of the defendant.</p> <p>“7. On the aforesaid day and date, the plaintiff herein, at about six o’clock in the evening, desiring to go to the dentist’s office herein described, situate in the said building, and being unfamiliar with the premises, attempted to find the entrance leading to the upstairs of the said building. A light was then burning in a transom which was located above the door hereinbefore described as situate between the two stores of the most westerly end of the Spruce street side of the building, and the plaintiff was then and there misled into the belief that the said doorway was a doorway leading to the upstairs entrance to the building.</p> <p>“8. The said building was so constructed and maintained and the entrance to the said building was so constructed and maintained that the said doorway leading into the cellar, into which the plaintiff fell, was apparently the doorway leading to the upstairs entrance to the building. The said doorway leading into the basement was so situate with reference to the stores and entrance on the Spruce street side of the building that it would clearly mislead the ordinary person into the belief that it was a doorway leading to the upstairs entrance to the said building.</p> <p>“9. The plaintiff, upon opening the door, attempted to enter and immediately fell into the cellar of the said building.</p> <p>***#*■&#**</p> <p>“10. As a result of the fall the plaintiff received injuries,” etc.</p> <p>The court entered judgment for defendant.</p> <p>Error assigned, was the judgment of the court.</p>

<p>Appeal, No. 172, Oct. T., 1918, by plaintiff, from judgment of C. P. Allegheny Co., July T., 1914, No. 1835, on certificate for defendant in case of Pittsburgh & Lake Erie Railroad Company v. South Shore Railroad Company.</p> <p>Assumpsit to recover $3,392.94 for repairs on locomotives. Before Reid, J.</p> <p>Certificate and judgment for defendant for $65,000. Plaintiff appealed.</p> <p>Error assigned, among others, was in refusing instructions for plaintiff.</p>

Appeal, No. 218, Jan. T., 1919, by plaintiff, from order of C. P. No. 1, Philadelphia Co., March T., 1918, No. 5366, M. L. D., striking off mechanic’s lien in case of William E. S. Dyer v. Richard L. Wallace, owner, and Richard L. Wallace, trading as R. L. Wallace & Company, Contractor. Rule to strike off mechanic’s lien. Before Patterson, J. The court made absolute the rule to strike off the lien. Plaintiff appealed.

<p>Appeal, No. 290, Jan. T., 1919, by Noah Thomas, Jacob Yerka et al., from order of Q. S. Lackawanna Co., Dec. T., 1918, No. 122, sustaining exceptions to master’s report In re Contested Election of Thomas Padden.</p> <p>Petition in election contest.</p> <p>The case was referred to Henry Needle, Esq., as examiner, who reported in favor of the contestant. Exceptions to his report were sustained, and an order was entered in favor of the respondent. Petitioners for the contest appealed.</p> <p>Errors assigned were the decree, and various rulings as to the qualifications and disqualifications of voters.</p>

<p>Negligence — Master and servant — Fall of grit or dust from ceiling — Continuing worlc — Belying on promise of employer — Bish of employment — Allegata et probata — Guessing at cause of accident— Nonsuit.</p> <p>1. In an action by an employee against her employer to recover damages for injuries to her eyes from the fall of grit or dust from the ceiling in the room where she was employed, a nonsuit is properly entered, where plaintiff testifies that the grit or dust fell immediately after a crash in the floor above, without any proof whatever as to who or what caused the crash, or even that the floor above was under the control of the defendant.</p> <p>2. In such a case where plaintiff testifies that two crashes occurred on the floor above on the same day and prior to the one which dislodged the dust, and that she had complained to the foreman about it, she cannot recover, if she fails both in her pleadings and in her proof, to show that she continued to work in reliance ■upon any promise made to her upon her complaint.</p>

<p>Appeal, No. 165, Jan. T., 1919, by plaintiffs, from judgment of Superior Court, Oct. T., 1917, No. 4, reversing judgment of C. P. Del. Co., Sept. T., 1915, No. 63, on verdict for plaintiffs in case of Frank Samuel, Silas M. Tomlinson and S. A. Cochran, trading as Frank Samuel, v. Delaware River Steel Company.</p> <p>Appeal from judgment of Superior Court. See 69 Pa. Superior Ct. 605.</p> <p>The Superior Court reversed the judgment of the Court of Common Pleas of Delaware County.</p> <p>Error assigned was order reversing judgment of the common pleas.</p>

<p>Appeal, No. 2, Jan. T., 1919, by plaintiff, from judgment of C. P. Lebanon Co., June T., 1915, No. 11, on verdict for garnishee, in case' of American Surety Co. of New York v. Vandegrift Construction Co. and James N. Vandegrift and Joseph A. Vandegrift, defendants, and Ephrata & Lebanon Traction Co., Garnishee.</p> <p>Attachment execution. Before Henry, P. J.</p> <p>. Verdict and judgment for garnishee. Plaintiff appealed.</p> <p>Errors assigned were various instructions and rulings on evidence.</p>

<p>Attachment execution — Stock of corporation — Stipulation on appeal — Interpleader proceedings — Bes adjudícala — Parties.</p> <p>1. An attachment execution was issued against a railway company to attach shares of stock standing in the name of the defendant in the execution. After judgment against the garnishee, an appeal was taken, and, in lieu of bail on appeal, a stipulation was entered into by the plaintiff and defendant in the attachment proceedings, and a corporation and others claiming ownership of the stock, by which it was agreed that the shares should be deposited with the prothonotary of the lower court, that the garnishee might prosecute its appeal, that the appeal should not be a supersedeas, that the plaintiff might proceed by interpleader proceedings, by serving the claimants with an appropriate writ; that the alleged owners should have the right to file a claim for the stock alleged to be owned by them, and that the question of the ownership' of the shares should be determined in the proceedings in the manner provided by the Sheriff’s Interpleader Act of 1897. The garnishee did not prosecute its appeal; but the defendant instituted the interpleader proceedings, as soon as an attempt was made physically to take the stock in execution. The corporation claimant of the stock was not a party in the attachment proceedings, was not served therein, did not intervene, and had no notice of them, other than the knowledge of certain of its officers acquired when they were not acting for the claimant. Meld, (1) that the claim of the corporation 'alleging ownership of the stock was not res adjudieata by the attachment proceedings; (2) that the corporation could under the stipulation establish its ownership of the stock in the interpleader proceedings; (3) that the fact that the appeal of the garnishee was not pressed, was immaterial.</p> <p>2. The Act of June 16, 1836, Section 34, P. L. 761, 767, does not compel, but permits, a claimant of stock to become a party to the attachment suit.</p> <p>Corporations — Stock—Voting trust — Assignment of stock.</p> <p>3. Where an owner of stock sells it to another for value, and the vendee deposits it with a trust company acting as depository for a voting trust, and receives the certificate of the voting trustees, the vendee will be entitled to receive the stock if for any reason the voting trust agreement fails.</p> <p>4. Where, upon the termination of a voting trust, the trustees execute assignments in blank in a sufficient number to furnish one for each stock certificate, and these are delivered with the understanding that they shall be attached to the stock certificates, when the latter are received from the depository of such stock, and they are so attached, the delivery of the assignment in blank, constitutes a valid transfer of title out of the voting trustees.</p> <p>5. Any prior bona fide assignment of stock for value will effectually pass the transferer’s interest therein, so far as to supersede the rights of an attachment or execution creditor to levy upon it for a debt due by the transferrer.</p> <p>Corporations — Stock—Toting stock — Ownership—Evidence.</p> <p>6. Where stock is voted under a proxy from a person whose name stands on the books of the corporation as the owner of record, such fact is not conclusive evidence that the person in.question is the owner thereof, where the ownership of the stock is in dispute. Such a fact is for the consideration of the jury with the other evidence in the case.</p> <p>Practice, Supreme Court — Assignments of error — Documentary evidence.</p> <p>7. Assignments of error to the admission or rejection of documentary evidence will not be considered, where the documents in question are not set forth in the assignments.</p>

<p>Corporations — Stock subscription — Fraud—Waiver.</p> <p>1. A subscriber to tbe stock of an insolvent corporation cannot set up as a defense to an action to recover tbe amount of tbe subscription, fraud and misrepresentation, in the procuring of the subscription, where it appears that after the subscriber bad discovered tbe fraud be retained tbe certificates of stock, and received and retained several dividends thereon amounting to hundreds of dollars.</p> <p>Courts — Judges—Orphans’ court judge presiding in common pleas — Be facto judge — Act of July 19, 1918, P. L. 8J¡Jj.</p> <p>2. Where under tbe Act of July 19, 1913, P. L. 844, an orphans’ court judge specially presides in tbe court of common pleas, bis acts will be valid. Even if the- act were unconstitutional, be would be a judge de facto, and bis acts would be valid irrespective of the constitutionality of tbe act.</p> <p>Appeal — Supreme Court — Question not raised below.</p> <p>3. If objection to tbe right of tbe judge to preside, is not made in tbe common pleas, it cannot be made in tbe appellate court.</p>

<p>Workmen’s compensation — Railroads—Death—Interstate cars.</p> <p>In a proceeding under the Workmen’s Compensation Act against a railroad company to recover damages for the death of an employee of the defendant, where the defendant sets up as a defense, that the deceased was engaged in moving interstate commerce cars at the time he was killed, a finding of the compensation hoard is conclusive, which in effect was that the cars of coal in the train, upon which the deceased was working, were being transported from the mines to different yards within the State, for the convenience of the shipper, and that the subsequent shipments of any of them upon which the deceased had worked to a point without the State, were made after his death, and after the train crew with which he had worked, had severed its connection with the cars.</p>

<p>Appeal, No. 159, Jan. T., 1919, by defendant, from judgment of Superior Court, Oct. T., 1917, No. Ill, dismissing appeal from order of C. P. Schuylkill Co., Sept. T., 1916, No. 191, sustaining award of Workmen’s Compensation Board in case of Anthony F. Neary v. Philadelphia & Reading Coal & Iron Company.</p> <p>Appeal from order sustaining award of Workmen’s Compensation Board. See 69 Pa. Superior Ct. 562.</p> <p>The Superior Court affirmed the judgment of the common pleas. Defendant appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Practice, Supreme Court — Appeals—Interlocutory order — Quashing appeal.</p> <p>Where the orphans’ court dismisses exceptions to an account with a further order that a “decree of distribution be prepared in accordance with the views expressed in this opinion,” such order is merely interlocutory, and no appeal can be taken until the decree is absolutely confirmed.</p>

<p>Appeal, No. 39, Jan. T., 1918, by defendant, from order of C. P. Lackawanna Co., Nov. T.j 1916, No. 301, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Lackawanna Trust Co. v. Frank Carlucci.</p> <p>Assumpsit on a promissory note. Before Newcomb, J.</p> <p>The court made absolute the rule for judgment. Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 41, Jan. T., 1919, by plaintiff, from order of C. P. Lackawanna Co., June T., 1917, No. 149, dismissing appeal from Workmen’s Compensation Board in case of Mary A. McGurrin v. Hudson Coal Company. Appeal from decision of Workmen’s Compensation Board which reversed an award of the referee in favor of the claimant. The court dismissed the appeal. Claimant appealed. Error .assigned was in dismissing the appeal.

<p>Appeal, No. 164, Jan. T., 1919, by V. Ameliano, E. E. Myers et al., from order of Q. S. Lackawanna Co., Dec. T., 1917, No. 234, dismissing petition and quashing proceedings In re Contested Election in the Fifth Ward of the Borough of Dunmore.</p> <p>Petition to contest the election of James O’Hara to the office of councilman of the Fifth Ward of the Borough of Dunmore. The petition was filed on December 5, 1917. On December 29, 1917, a rule was granted to dismiss the petition on the ground that it was not signed by twenty-five qualified electors, and that the affidavit was not sworn to by five qualified electors. On August 21, 1918, a motion to amend the petition by adding the name of six other petitioners, was refused, and the proceedings were quashed in an opinion by Edwards, P. J.</p> <p>The contestants appealed.</p> <p>Error assigned was the order of the court quashing the appeal.</p>

<p>Appeal, No. 175, Jan. T., 1919, by Boyd M. Squier, from decree of O. C. Wyoming Co., Partition Docket, No. 1, page 283, dismissing petition for partition in Estate of Perry Stark.</p> <p>Petition of Boyd M. Squier, son of Harriet Stark Squier, deceased, for partition.</p> <p>Tbe case turned upon tbe construction of tbe will of Perry Stark, tbe material portion of wbicb was as follows:</p> <p>“Second: — I will, give, devise and bequeath to my wife, Alvira E. Stark, tbe absolute control of all my property, whatsoever, together with tbe profits, income and advantages thereof, subject only, however, to furnish therefrom unto my daughter, Georgianna, intermarried with David Winfield, a comfortable living and support.</p> <p>“And in case of tbe death of my said daughter, Georgianna, before the death of my said wife, Alvira E., then and in that case I will and bequeath unto my said wife, Alvira E., the whole of my property, absolutely in fee simple; but if my said daughter, Georgianna, outlive my wife, Alvira E., then and in that case, I will and bequeath unto her, the said Georgianna, the absolute control of all my property, whatsoever remaining at the death of my said wife, together with the profits, income and advantages thereof, so long as she, my said daughter shall live, and at her death to her heirs, absolutely in fee simple. And in case my said daughter, Georgianna, shall die, leaving no issue of her body, living at her death, then and in that case, I will, devise and bequeath all my property then remaining, absolutely and in fee simple, unto Harriet Stark, intermarried with Oliver Squier, Henrietta Stark,' intermarried with I. W. Billings, and Frances Stark, share and share alike.”</p> <p>Alvira E. Stark survived the testator and died September 27,1903. Georgianna Winfield died on February 20, 1917, leaving a husband but no issue to survive her. In her lifetime she executed a deed to Frances Stark Hungerford of all her interest and estate that she had received by virtue of her father’s will. The court dismissed the petition, holding that Georgianna took a fee in the estate, which by her deed passed to Frances Stark Hungerford.</p> <p>Error assigned was the decree of the court.</p>

<p>Appeal, No. 192, Jan. T., 1919, by plaintiffs, from decree of C. P. Lackawanna Co., Oct. T., 1916, No. 17, dismissing bill in equity in case of Sarah C. Lillibridge et al., Trustee for John Lillibridge and Levi B. Lillibridge, Committee in Lunacy for Lucilla A. Lillibridge, v. Lackawanna Coal Co.</p> <p>Bill in equity for discovery, accounting and a redelivery of leased premises. Before Newcomb, J.</p> <p>The court entered a decree dismissing the bill. Plaintiffs appealed.</p> <p>Errors assigned, among others, were (1-6) in excluding certain offers of evidence, setting forth the offers, objections and rulings, but not disclosing any exceptions to the rulings filed after the entry of the decree nisi; (7-43) in overruling various exceptions to the court’s findings of fact and conclusions of law; (44) the decree nisi; and (45) final decree dismissing the bill.</p>

<p>Appeal, No. 272, Jan. T., 1919, by plaintiff, from order of C. P. Lackawanna Co., March T., 1918, No. 360, overruling demurrer to return to writ of alternative mandamus in case of John EL Thomas v. Alex T. Connell, Mayor and Arthur G. Davis, Director of Public Safety and the City of Scranton.</p> <p>Petition for writ of mandamus.</p> <p>The court overruled the demurrer to the return, and entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Criminal law — Murder—Pleading — Non vult contendere withdrawing plea — Appeal—Act of March SI, 1860.</p> <p>1. The plea of non vult contendere is never allowable in capital eases.</p> <p>2. Where on the trial of an indictment for murder, the defendant pleads non vult contendere, and the court accepts the plea as the equivalent of a plea of guilty, and after examination of witnesses to fix the degree of guilt, adjudges the degree of the guilt as “murder in the first degree” and passes sentence thereon, such conviction will he set aside on appeal, and the case will he remanded with direction that the defendant have leave to withdraw his plea of non vult contendere, and plead anew to the indictment, as though such plea had never been entered.</p>

<p>Appeal, No. 125, Oct. T., 1918, by defendant, from judgment of O. P. Beaver Co., June T., 1917, No. 15, on verdict for plaintiffs in case of Joseph E. Griffin et al., trading as Reliance Steel & Tool Co., now for use of Reliance Steel & Tool Co., Incorporated, v. Metal Products Company.</p> <p>Assumpsit for goods sold and delivered. Before Baldwin, P. J.</p> <p>Verdict and judgment for plaintiff for $1,782.13. Defendant appealed.</p> <p>Errors assigned were rulings on evidence, quoting the bill of exceptions, and various instructions.</p>

Appeal, No. 199, Jan. T., 1919, by defendant, from judgment of C. P. No. 5, Philadelphia Co., Sept. T., 1917, No. 3445, for plaintiff on case tried by the court without a jury in suit of Charles N. Black and Francis H. Bohlen v. American International Corporation. Assumpsit for purchase money of real estate. Before Martin, P. J., without a jury. The court entered judgment for plaintiffs for $27,500. Defendant appealed. Error assigned was in entering judgment for plaintiff.

Appeal, No. 177, Jan. T., 1919, by plaintiff, from decree of C. P. Berks Co., No. 1, 134 Equity Docket, 1914, dismissing exceptions to master’s report in case of The S. G. V. Company v. The S. G. V. Company. Bill in equity for a receiver of an insolvent corporation. The case was referred to Stephen M. Meredith, Esq. Exceptions to his report were dismissed by the court. Endlich, P. J., filed an opinion. See 10 Berks Co. L. J. 217.

Appeal, No. 262, Jan. T., 1919, by plaintiffs, from order of C. P. Berks Co., May T., 1917, No. 89, granting a new trial in case of Franklin E. Lebo, by his next friend and father, William Lebo and Henry Schofer’s Sons, Intervening plaintiffs, v. Reading Transit & Light Company. Trespass to recover damages for personal injuries alleged to have been caused by the negligence of a motorman in charge of an electric railway car.

Appeal, No. 113, Jan. T., 1919, by defendant, from order of C. P. No. 5, Philadelphia Co., March T., 1918, No. 4109, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Charles Walton, -Executor of Joseph W. Janney, deceased, v. American Surety Company of New York. Assumpsit on a bond. Before Martin, P. J. The court made absolute rule for judgment for want of a sufficient affidavit of defense. Error assigned was the order of the court.

Appeal, No. 148, Jan. T., 1919, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1917, No. 4052, on verdict for plaintiff in case of Fanny K. Whitcomb v. Philadelphia. Appeal from award of board of viewers. Before Shoemaker, J. Verdict and judgment for plaintiff for $387,856.29. Defendant appealed. Errors assigned were various rulings on evidence, sufficiently appearing by the opinion of the Supreme Court, and refusal of new trial.

Appeal, No. 71, Jan. T., 1919, by defendant, from judgment of C. P. No. 2, Philadelphia Co., March T., 1915, No. 2632, on verdict for plaintiff in case of Catharine C. Sweatman v. Pennsylvania R. B. Company. Trespass to recover damages for death of plaintiff’s husband. Before Rogers, J. Verdict and judgment for plaintiff for |3,500. Defendant appealed. Error assigned was in discharging defendant’s motion for judgment n. o. v.

<p>Appeal, No. 230, Jan. T., 1919, by defendants, from order of C. P. Schuylkill Co., Sept. T., 1918, No. 93, entering judgment for plaintiff in case of E. E. Shifferstine, President of the School Board of the School District of the Borough of Tamaqua, now Thomas J. Howells, President of said School Board to use of the School District of Tamaqua Borough, v. C. E. Sitler, Alfred Knepper, John A. Moyer, Charles Graeff, administrators of the estate of Charles Snyder, deceased, Barbara E. Wetterau, executrix of the estate of John Wetterau, deceased, Alfred Knepper.</p> <p>Assumpsit against sureties on a bond of a collector of school taxes for $40,000.</p> <p>The court entered judgment for plaintiff without giving defendant an opportunity to file a supplemental affidavit of defense.</p> <p>Error assigned was the judgment of the court.</p>

<p>Appeal, No. 25, Oct. T., 1919, by defendants, from decree of C. P. Allegheny Co., Jan. T., 1919, No. 614, in equity restraining defendants from using plaintiff’s land for mining operations, in the case of John O. Horning v. J. W. Kraus et al., Partners, trading as Black Hills Coal Company.</p> <p>Bill in equity for an injunction. Before Carpenter, J.</p> <p>The defendants claimed certain rights and privileges upon the plaintiff’s land by virtue of the ownership of underlying coal. The case turned upon the construction of the deed conveying the coal.</p> <p>The plaintiff’s first request for findings of fact and the answer of the court thereto was as follows:</p> <p>“The plaintiff is the owner of the surface upon which the defendants have made an entry for the purpose of reaching their coal and upon which they have constructed a coal chute, and upon which they propose to construct bins for storing coal, track scales, blacksmith shop and mule stable, and a storage room for supply parts, etc. The defendants propose to use about an acre and a half of the plaintiff’s land. The land which they propose to use does not overlie the defendants’ coal, it lies adjacent to the coal but outside of the lines of the same.”</p> <p>Affirmed.</p> <p>The court’s eleventh finding of fact is as follows:</p> <p>“The opening of which complaint is made and the location selected for the chute, bins or platform, etc., which defendants purpose constructing, are outside the boundaries of the coal as surveyed and conveyed to James H. Hays, being between said surveyed line and Main street, and, if the said proposed structures are erected, will occupy about 125 to 150 feet of the frontage of plaintiff’s land on said street, to wit: the frontage extending from the chute to the Keeling Tunnel. Main street, at the point mentioned, and for some distance east and west, is on the McCleery land, now owned by plaintiff, and between the surveyed line of the coal and the line of land now or late of the Wilson heirs.”</p> <p>The court awarded an injunction. Defendants appealed.</p> <p>Error assigned, among others, was the decree of the court.</p>

Appeal, No. 227, Jan. T., 1919, by Emily Amelia Kaier Schreyer and Crescentia Kaier Kirby, from decree of O. C. of Schuylkill Co., refusing to vacate letters testamentary granted to Charles F. Kaier, and to remove him as Executor of-the Estate of Charles D. Kaier, deceased. Petition for removal of an executor. Before Wilhelm, J. The court dismissed the petition. Petitioners appealed.

<p>Wills — Construction—Devise to children and their survivors.</p> <p>By a provision in a will referring to a trust fund, “I further direct that after the death of my sons and daughters the same ¡shall become vested in their respective children or their legal representatives in such manner and in such proportions as my said sons and daughters shall respectively by their last wills and testaments direct and appoint; and in default of such will and appointments, shall descend and vest agreeably to the laws regulating intestate estates. And in case any of my children shall die without lawful issue living at his or her death, then the share or shares of such deceased child or children shall be paid over to the survivor or survivors of them, share and share alike,” the testator intended that in case any of his children should die without leaving issue at the time of his or her death, the share of such child should be paid to the survivor or survivors of them immediately upon the death of each son and daughter as it occurred, and the words “after the death of my sons and daughters” cannot be taken to mean after the death of all of them.</p>

Appeal, No. 164, Oct. T., 1918, by defendant, from decree of C. P. Allegheny Co., No. 661, Oct. T., 1916, in equity, ordering an accounting in the case of Diamond Alkali Co. v. AEtna Explosives Co., Inc. Bill in equity for an accounting. Before Carpenter, J. The defendant’s third and fourth requests for conclusions of law and the answers of the court were as follows: “Third.

<p>Appeal, No. 304, Jan. T., 1919, by Frank E. Miller, from decree of O. C. Franklin Co., removing the appellant from Ms office of Executor in re petition of Carrie C. Brown, J. R. Miller and Iola Miller in the estate of Annie E. Miller, deceased.</p> <p>Petition by legatees and devisees for the removal of the executor under the will of the decedent.</p> <p>The facts appear in the opinion of the lower court, by G-illan, P. J., filed February 3, 1919, which was as follows :</p> <p>The petition of Carrie C. Brown, J. R. Miller and Iola Miller was presented to us on the 7th day of November, 1918, setting forth that they were legatees and devisees under the will of the said Annie E. Miller. The petition was accompanied by a copy of her will. Of this will Frank E. Miller was appointed the executor. The will was duly probated and letters testamentary granted to the executor named therein. The prayer of the petition was as follows:</p> <p>“That a citation be issued to Frank E. Miller, executor of Annie E. Miller, deceased, requiring him to appear on a day certain to answer the allegations of the foregoing petition and to show cause, if any there be, why letters testamentary issued to him by the Register of Wills of Franklin County should not be vacated and the said Frank E. Miller removed from the trust, as provided by Section 53-a of the Fiduciaries Act.”</p> <p>Upon the petition being presented a citation was awarded, returnable in twenty days after service. On the 14th day of November, 1918, the executor accepted service of said citation. On the 4th day of December, 1918, the executor asked and obtained an extension of time to the 15th of December for filing of the answer. On the 14th of December an answer was filed. On the 28th of January, 1919, counsel for executor presented a petition asking for the appointment of an examiner to take the testimony. Inasmuch as the answer admits all the material allegations of fact contained in the petition, there can be no good purpose served by the appointment of an examiner. We are, therefore, called upon to determine the question on petition and answer.</p> <p>The decedent died on the 13th day of October, 1917. The estate consisted of real estate appraised at $50,000, for the purpose of determining direct inheritance tax; personal property at $1,200. By her will the testatrix directed that her debts and funeral expenses be first paid. She made this provision for her daughter, Carrie C. Brown:</p> <p>“I give and bequeath to my daughter, Carrie C. Brown, my piano, and what she desires to take of the household goods and furniture in the residence where I live.”</p> <p>She directed that her executor manage the estate, collect the rents, etc. She expresses a desire that the real estate be not sold until the time arrives when the executor deems it expedient that it be sold. When said real estate is sold, the proceeds to be divided among the legatees named in the will, share and share alike. These petitioners are legatees and devisees named in the will.</p> <p>The testatrix having died after the passage of the Fiduciaries Act of 7th June, 1917, the rents of the real estate are assets for the payment of debts, the personal property not being sufficient for that purpose. All debts owing by a decedent are to be paid by the executor in the following manner: (1), funeral expenses; medicine and medical attendance during last illness; servants’ wages not exceeding one year; (2), rents not exceeding one year; (3), all other debts without regard to the quality of the same, except debts due the Commonwealth.</p> <p>The decedent was indebted on a mortgage to J. H. Stoner, trustee, in the sum of $11,000, with interest from April 1,1916. On this mortgage a sci. fa. has been issued since the death of testatrix and judgment taken against the executor and legatees for $12,576.63, and costs. The decedent was also indebted on a mortgage in the sum of $1,000; also on another mortgage in the sum of $2,-000, on which foreclosure proceedings are threatened. The executor has paid no interest on any of these obligations.</p> <p>The executor has received rents to the amount of $2,-670. The undertaker’s bill is $201; cemetery bill, $12.50; tax accrued since the death of decedent, $430.50. None of these have been paid and on taxes are penalties for delay of payment. If paid promptly from most of these taxes would have been an abatement of 5 per cent. He has neglected to pay the direct inheritance tax on the estate and that is bearing interest at the rate of 12 per cent per annum.</p> <p>He has paid out to his father over $315. No authority whatever is shown for these payments. His statement is • that the most of it is for board. The father, Joseph W. Miller, was the husband of Annie E. Miller. He gets nothing under the will. It does not appear that he elected to take against the will. Why the executor should pay out this money, for which there is no warrant, and allow the direct inheritance tax to remain unpaid while bearing interest at the rate of 1 per cent per month, and allow penalties to accumulate on the taxes, is nowhere explained. Certainly, this is not to the best interests of the estate. He paid out large sums of money for items which he designates, as “trips and supper.” There is no explanation as to what these items mean. If in the fourteen months’ time a property which has rented as this property has the manager cannot save from repairs and upkeep enough to pay the funeral expenses, etc., especially where part of these taxes bears interest at the rate of 12 per cent per annum, it seems to the court time to get a new manager. He makes no explanation as to the nonpayment of these things, except to say that he did not have the funds. He makes no promise, nor does.he hold out any hope that matters will be better in the future. While he rents the buildings heated, he admits that coal, which he purchased for that purpose, has not been paid for. He admits that the hardware which he purchased, presumably for repairs, has not been paid for. There is no doubt whatever of his mismanagement of the estate. He seeks to hold the petitioners responsible for the unpaid bills, because they would not sign a note, by which he could borrow money. It was not their business to raise the money. Instead of acknowledging the rights of the petitioners to assert their position and complain of his management, he shows a defiant attitude. He shows that there is no harmony between the devisees and legatees and the executor. It will not take many years, with such management as his, to render a solvent estate insolvent.</p> <p>It is provided by the 53d section, clause A, of the Fiduciaries Act, that the orphans’ court having jurisdiction of the accounts of executors shall have power to remove such executor, “when such fiduciary is wasting or mismanaging the estate in his charge,” or “where for any reason the interests of the estate or property are likely to be jeopardized by the continuance of said fiduciary.”</p> <p>The executor who pays out the moneys of an estate for purposes not authorized by law is wasting and mismanaging the estate as much as one who converts the money of the estate to his own use. It is the bounden duty of the court to hold a fiduciary to a strict account of his management. As we have before said, the answer of the executor admits all of the material allegations. Instead of denying, the executor attempts to explain. His explanations are very unsatisfactory. He, as we have before said, asks that an examiner be appointed to take the testimony. The facts being admitted, no testimony is necessary and the appointment of an examiner would only tend to greater delay and give an opportunity for further mismanagement. We have no doubt as to our duty in the premises.</p> <p>The court made a decree removing the executor from his trust. The executor appealed.</p> <p>Errors assigned were the decree of the court removing appellant from Ms trust as executor and refusal of the court to appoint an examiner to take testimony.</p>

<p>Appeal, No. 127, Jan. T., 1919, by plaintiffs, from decree of C. P. Northampton Co., June T., 1914, No. 1, in equity, dismissing plaintiffs’ bill in case of Samuel Weisenberger, Herman Schermer, Samuel Miller and Solomon Goodman v. Gottlieb Huebner, Jacob W. Hagey and Mary L. Cyphers, Executrix of Harry A. Cyphers, deceased.</p> <p>Bill in equity for specific performance of agreement for sale of real estate. Before Stewart, P. J.</p> <p>The court dismissed the bill because the contract was not in writing. Plaintiffs appealed.</p> <p>Errors assigned were, among others, answers to plaintiffs’ requests for findings of fact and conclusions of law and the decree of the court.</p>

Appeal, No. 298, Jan. T., 1919, by defendant, from judgment of C. P. Carbon Co., Jan. T., 1917, No. 3, upon a verdict for plaintiff in the case of Filomena R. De Marchi v. Central Railroad Company of New Jersey. Action in trespass to recover damages for death of plaintiff’s husband. Before Barber, P. J. Verdict for plaintiff for $19,500. Upon plaintiff remitting the amount of verdict in excess of $14,500 judgment was entered for that amount. Defendant appealed.

Appeal, No. 157, Jan. T., 1919, by defendant, from judgment of C. P. Lycoming Co., Sept. T., 1917, sustaining motion for judgment for want of sufficient affidavit of defense in the case of Sophia M. Yeager, Executrix of John H. Yeager, surviving partner of the copartnership composed of S. Bacon Eilenberger and John H. Yeager, doing business under the firm name of Eilenberger & Yeager, v. James Mansel. Assumpsit upon two promissory notes.

Appeal, No. 207, Jan. T., 1919, by claimant, from judgment of C. P. Susquehanna Co., Nov. T., 1917, No. 105, reversing action of Workmen’s Compensation Board awarding compensation for death of a workman, plaintiff’s husband, in the case of Sarah E. Reilly v. Erie R. R. Co. Appeal from decision of Workmen’s Compensation Board.

<p>Appeal, No. 307, Jan. T., 1919, by defendant, from judgment of C. P. Bradford Co., Feb. T., 1916, No. 76, upon a verdict for plaintiff in case of Nora Fanning, Administratrix of the Estate of Thomas Fanning, Deceased, v. The Equitable Life Assurance Society of the United States.</p> <p>Assumpsit upon a policy of life insurance. Before Maxwell, P. J.</p> <p>Verdict for plaintiff for $8,653.50 and judgment thereon. Defendant appealed.</p> <p>Error assigned was refusal of defendant’s motion for judgment n. o. v.</p>

<p>Appeal, No. 54, Jan. T., 1918, by defendant, from judgment of C. P. No. 1, Philadelphia Co., Dec. T., 1914, No. 631, on verdict for plaintiff in case of John McGrath v. Atlantic Refining Company.</p> <p>Trespass to recover damages for personal injuries. Before Patterson, J.</p> <p>Verdict and judgment for plaintiff for $3,250. Defendant appealed.</p> <p>Error assigned was in refusing judgment for defendant n. o. v.</p>

<p>Road law — Unopened streets — Deed—Implied easement of right-of-way — Presumption — Res gestee — Rebuttal — Estoppel—Boundaries — Dedication—Damages—Act of May 9,1899, P. L. 178.</p> <p>1. Where land is conveyed bounded by an unopened street projected by a municipality, tbe grantee by implication acquires an easement over tbe bed of that street, unless tbe circumstances attending tbe conveyance and tbe description of tbe grant negative such implication. Such act is in no sense a dedication, nor does tbe owner covenant that tbe municipality shall in tbe future open that street. Tbe lot is Sold subject to a possible relinquishment, by tbe municipality, of its right to open; but, if it does open tbe street for public use, whatever covenant springs from tbe conveyance of a lot so bounded, is executed when tbe street is actually opened as a street. The “attending circumstances” which defeat tbe implication of a covenant or easement must be gathered from tbe instrument conveying tbe land, and tbe res geStse of tbe transaction.</p> <p>2. When tbe city relinquishes its right to open by proper municipal action, one of tbe inducing features held out to tbe grantee to purchase disappears but tbe implied contract or easement of a way from tbe lot as between grantor and grantee is not destroyed. It is, however, limited to such way as may be reasonably necessary to tbe enjoyment of the lot or lots sold, corresponding in its essential requirements to the street named in the deed. The grantor and his assigns are estopped from asserting the contrary.</p> <p>3. In a proceeding against the City of Philadelphia to assess damages for the value of a piece of land forming the northern half of the bed of Arch street between two streets named. The court will direct judgment against the plaintiff where it appears that prior to May 21, 1858, the portion of Arch street was plotted on the city plans, but not opened; that on May 21, 1858, the owner’s predecessor in title conveyed the land north of Arch street, describing it as, beginning at a point in the north line of Arch streets, and extending along the north side of said street, etc.; that later in the same year he conveyed to another party the land on the south side of Arch street, describing it as running eastwardly along the middle line of Arch street; that in 1910, when the city authorized the opening of the northern half of Arch street, the southern half was used as a street by the public, and that the parties agreed of record that the northern half of the street 'subject to an implied covenant for easement of right-of-way, was valueless.</p> <p>4. The Act of May 9, 1889, P. L. 173, which provided that streets laid out on plans of lots, but not opened for twenty-one years next after the laying out of the same should not be opened without the consent of the owner, does not apply where a portion of the width of the street has been used by the public within the twenty-one years.</p>

<p>Decedents’ estates —■ Family settlement — Trusts and trustees — Settlement of will contest — Executors and administrators.</p> <p>Where a daughter contests her father’s will, and a settlement in • the nature of a family settlement, is made between herself and her two brothers, who were also two of the three executors of the will, by which, in consideration of the withdrawal of the caveat, the daughter receives absolutely a portion of the estate in lieu of a separate use trust provided by the will, such settlement is void; but in setting it aside, the court will permit the daughter to renew her proceedings to contest the will, and to move for the vacation of its probate, distribution under the terms of the will to be stayed pending such proceedings.</p>

<p>Appeals, Nos. 120 and 121, by Winfield S. and Randolph. P. Russell, from decree of O. C. Philadelphia Co., April T., 1888, No. 403, sustaining exceptions to adjudication in Estate of Emma L. Evans, deceased.</p> <p>Exceptions to adjudication.</p> <p>The court sustained the exceptions.</p> <p>Appeal by Winfield S. and Randolph P. Russell.</p> <p>Errors assigned were in sustaining the exceptions.</p>

<p>Appeal, No. 103, Jan. T., 1917, by Pennsylvania Co. for Insurances on Lives and Granting Annuities, Trustee, from decree of O. C. Philadelphia Co., April T., 1888, No. 403, sustaining exceptions to adjudication in Estate of Emma L. Evans.</p> <p>Exceptions to adjudication.</p> <p>The court sustained the exceptions.</p> <p>Errors assigned were in sustaining the exceptions to the adjudication.</p>

<p>Criminal law — Murder—Insanity—Evidence — Burden of proof —Hereditary insanity.</p> <p>1. Where the defense in a murder trial is insanity, the burden is on the defendant to prove by a fair preponderance of the evidence that he was insane when he did the killing. This burden rests on him throughout the trial, and he is required not only to adduce evidence as to his own insanity, but also such corroborating proof as he desires to submit.</p> <p>2. The father of a defendant indicted for murder who has set up insanity as a defense, will not be permitted to testify to his own insanity, or such acts from which insanity might be inferred.</p> <p>3. Where the insanity of an individual is in question the insanity of his blood relations in the ancestral line, -either direct or collateral, may be shown in corroboration of the evidence showing insanity in the individual; but hereditary insanity of itself is not independent proof of the insanity of the prisoner, but it is circumstantial evidence used to corroborate other more direct proof of insanity in the accused; of itself it cannot be used as a defense.</p> <p>4. Before receiving such evidence as grounds for a presumption of possible insanity, there must be some evidence showing insanity in the accused. It must also appear that the disease is hereditary or transmissible so as to taint the family blood.</p> <p>5. If insanity is shown in the accused, and insanity be shown in collateral kindred of not too remote a degree, and the insanity with which each suffers is transmissible or hereditary in that it may or will reappear in some form or symptom in a descendant, no matter what symptom it may take in the descendant, such evidence may be introduced without showing insanity in the direct line, i. e., parents or grandparents.</p> <p>6. Witnesses who testify to insanity in the ancestors either direct or collateral, must do so from personal knowledge and observation, and not from reputation.</p> <p>7. Before evidence to establish hereditary taint may be introduced, proof should be present that the insanity in the collateral kinsman was transmissible, and not nonhereditary.</p> <p>8. On the trial of an indictment for murder where the defense is insanity, the father of the accused cannot show that he had two other children who had been committed to an insane asylum, that a sister of the accused’s mother was of unsound mind, and children of the mother’s brother were of unsound mind, where there is no offer to prove that the insanity in such collateral kinsmen was transmissible.</p>

<p>Workmen’s compensation — Contract as to wages of a miner — Express contract — Implied contract — Deduction for materials and tools — Improper findings — Act of June 2, 1915, P. L. 786.</p> <p>1. Where in a proceeding under the Workmen’s Compensation Act, to secure compensation for the death of plaintiff’s husband, a miner, it appears that the deceased was paid regular wages of $22 per week for about six months, less a deduction for supplies and tools amounting in the aggregate to $49.38 without objection by him for such deduction, it is reversible error for the referee, the workmen’s compensation board and the court of common pleas to decline to make any deduction for supplies and materials, in determining the wages as a basis for compensation, on the ground that there was no express agreement in the contract of hiring for such deduction.</p> <p>2. In such a case an implied agreement may be inferred from the conduct of the parties. This is a question of law to be passed upon by the court below, and the case will be remanded to that court to pass upon the question of the existence of the implied contract, should the ascertained facts be found sufficient therefor; if not, to remand the record to the compensation board with instructions to find further.</p> <p>3. The legislature did not purpose to confine hiring contracts with which the act deals to express contracts, to the exclusion of contracts which arise by implication of law where no express contract exists, but yet where circumstances are shown which, according to the ordinary course of business dealings and the ordinary understanding of men, show a mutual intention to contract.</p>

<p>Appeal, No. 105, Jan. T., 1919, by Yulcan Motor Devices Company, from decree of C. P. Berks Co., No. 1134, Equity Docket 1914, overruling exceptions to master’s report in case of S. G. Y. Company v. S. G. V. Company.</p> <p>Exceptions to report of Stephen M. Meredith, Master, appointed to make distribution of a fund derived from the assets of the S. G. Y. Company, an insolvent corporation.</p> <p>The court dismissed the exceptions to the report. The Yulcan Motor Devices Company, a creditor, appealed.</p> <p>Errors assigned were in dismissing exceptions to the master’s report.</p>

<p>Equity — Parties—Title—Will—Presumption—Jurisdiction—Dismissal of hill without prejudice.</p> <p>1. Only a party in interest can invoke the equity powerg of a court to procure the cancellation of a deed, and such interest must be averred and proved.</p> <p>2. Where on a bill in equity for the cancellation of a deed executed by plaintiff’s father, it appears that although the father died testate his will was not produced in evidence, and there is no proof to show how plaintiff had acquired any interest in the land covered by the deed, the bill will be dismissed. There is no presumption that the father died intestate as to the land in question, or that he devised it to plaintiff.</p> <p>3. The fact that the bill purports to be filed by the plaintiff “for himself and in behalf of all other persons in interest,” is immaterial, inasmuch as it is fatally defective for want of a necessary plaintiff.</p> <p>4. In such a case the bill is also fatally defective for want of necessary defendants, where it appears that the deed from the father was made to two of his sons, who were plaintiff’s brothers, and that the defendants named were the executors and heirs of one of the sons, and the widow of the other, but no proof of the will of the first is offered, and it is not shown whether the second died testate or intestate or who were his heirs or devisees.</p> <p>5. The court in dismissing the bill in such a case for lack of necessary parties, will do so without prejudice to plaintiff’s rights, or those of any other party, in any future action at law or in equity touching the deed in question, or the title of the land embraced therein.</p>

<p>Appeal, No. 205, Jan. T., 1919, by defendant, from judgment of O. P. Northampton Co., June T., 1917, No. 77, on verdict for plaintiff in case of George C. Macan, Jr., v. Scandinavia Belting Co.</p> <p>Assumpsit in foreign attachment for breach of contract. Before Stewart, P. J.</p> <p>At the trial defendant presented these points, inter alia:</p> <p>5. The measure of damages claimed by the plaintiff is the value of the contract at the time of its alleged breach. Such damages ar.e necessarily based on the loss of future unearned profits and are therefore, in view of the terms and conditions of the contract, so speculative in character and dependent upon commercial and changing contingencies that their amount cannot be ascertained and determined with any reasonable degree of certainty, and therefore cannot be recovered. Answer: Refused. (1)</p> <p>9. George C. Macan, Jr., the plaintiff herein, is es-topped in the present suit from showing his individual ownership in or title to the contract of May 1, 1912, exhibited with and made part of his statement of cause of action, for the reason that heretofore subsequent to May 1, 1914, the date of the cancellation by the Scandinavia Belting Oo. of said contract, the Scandinavia Belting Co. brought two suits in this court, Nos. 7 and 18, September Term, 1914, against the Macan Jr. Company, a corporation in which the said George C. Macan, Jr,, was the principal stockholder and president of the corporation. In said two suits which were tried together, the defendant corporation pleaded a counterclaim for damages based upon the alleged unlawful cancellation by the Scandinavia Belting Company of the same identical contract of May 1, 1912, which pleading of counterclaim was sworn to by the said George- C. Macan, Jr., and he testified at the trial of the issues that the said contract belonged to the corporation, the Macan Jr. Company, and insisted by his counsel in the argument of the issues before the court and jury that the Macan Jr. Company (the corporation) was the owner of the contract and was entitled to damages for its alleged unlawful cancellation by the Scandinavia Belting Company. The verdict and judgment were in favor of the Scandinavia Belting Company. The present suit involves the same subject-matter. George C. Macan, Jr., cannot now be permitted to show a title to said contract different from that he formerly averred. He cannot maintain the present suit. Answer: Befused. (2)</p> <p>10. Heretofore, subsequent to May 1, 1914, the date when the Scandinavia Belting Company cancelled the contract of May 1, 1912, exhibited by George C. Macan, Jr., as part of his statement of cause of action in the present suit, the said Scandinavia Belting Company brought two suits in this court, Nos. 7 and 18, September Term, 1914, against the Macan Jr. Company, a corporation in which the said George C. Macan, Jr., was the principal stockholder and president of the corporation. In said two suits which were tried together, the defendant corporation pleaded a counterclaim for damages based upon the alleged unlawful cancellation by the Scandinavia Belting Company of the same identical contract of May 1,1912. The issues of law and fact thereupon arising were duly tried by the court and jury, and resulted in a verdict and judgment in favor of the Scandinavia Belting Company and against the Macan Jr. Company; and upon appeal by the Macan Jr. Company to the Supreme Court of Pennsylvania, the judgment of the court below in favor of tbe Scandinavia Belting Company was sustained and all tbe assignments of error by tbe Macan Jr. Company overruled. In tbe trial of tbe issues arising upon tbe said plea of counterclaim, George C. Macan, Jr., testified and insisted that tbe said contract of May 1,1912, belonged to tbe Macan Jr. Company altbougb it stood in bis individual name, and that tbe Macan Jr. Company was entitled to recover damages for tbe alleged unlawful cancellation of tbe contract by tbe Scandinavia Belting Company. Whether or not tbe Macan Jr. Company suffered damages was tbe issue arising under tbe said plea of counterclaim.</p> <p>George C. Macan, Jr., is concluded by tbe judgment in tbe said two actions by tbe Scandinavia Belting Company against tbe Macan Jr. Company. Tbe issue arising under tbe plea of counterclaim is tbe same question presented by tbe pleadings in tbe present action by George C. Macan, Jr., against tbe Scandinavia Belting Company. His individual rights, whatever they might be, growing out of tbe alleged breach of tbe contract of May 1, 1912, have already been judicially determined. He was an interested party in that proceeding as principal stockholder in tbe defendant corporation. He cannot now reopen tbe question, it is res adjudicata. Answer: Refused. (3)</p> <p>11. Under all tbe law and tbe evidence in tbe case, tbe verdict must be for tbe defendant. Answer: Refused. (4)</p> <p>Tbe court charged tbe jury in part as follows:</p> <p>[Now I shall say to you that so far as that first case is concerned, so far as tbe legal effect of it in this case is concerned, it establishes tbe fact that this contract does not belong to tbe Macan corporation, that is what tbe effect of tbe verdict of tbe other jury was, that it was George Macau’s contract individually and not tbe Macan corporation’s contract. So do not spend any time discussing that matter; put tbe responsibility on me and take it from tbe court that we are now trying this case of George Macan as the owner of the contract against the Scandinavia Belting Company.] (5)</p> <p>Verdict and judgment for plaintiff for $5,000. Defendant appealed.</p> <p>Errors assigned, among others, were (1-5) above instructions quoting them and (8) in overruling motion for judgment for defendant n. o. v.</p>

<p>Appeal, No. 12, Jan. T., 1919, by plaintiff, from judgment of C. P. Sullivan Co., May T., 1916, No. 6, for defendant n. o. v., in case of Dennis Finan v. E. T. Mason Co.</p> <p>Trespass to recover damages for personal injuries. Before Terry, P. J.</p> <p>Verdict for plaintiff for |2,000. Subsequently the court entered judgment for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 144, Jan. T., 1919, by TJ. M. Fell, from decree of C. P. Bradford Co., Dec. T., 1911, No. 1, on bill in equity in case of The Keystone Guard, a corporation in the hands of J. W. Ballard, Receiver, v. J. W. Beaman, IT. M. Fell et al.</p> <p>Bill in equity to compel officers and directors of a corporation to repay funds misappropriated.</p> <p>The court entered a decree directing U. M. Fell to pay plaintiff the sum of $5,000. U. M. Fell appealed.</p> <p>Error assigned was the decree of the court,</p>

<p>Sale — Custom—Evidence — ModificaHon of contract — Implied warranty.</p> <p>In an action to recover the contract price of 1,000 hides, where it appears that the contract specified delivery of. two grades of hides at different prices, but did not specify the proportions of each, it is improper to offer to prove by a witness a trade custom, requiring in case of a sale of a lot of hides of different grades a fixed proportion as between the several grades. Such an offer involved an introduction into the written agreement of a custom of trade at variance with the express terms of the contract, and an implied warranty which did not arise from the contract itself.</p> <p>If such an offer was not so directed in form as to disclose a trade custom, it was properly rejected, where the record failed to disclose any evidence tending to establish such custom.</p>

<p>Negligence^ — Certified public accountants — Absence of contract relation.</p> <p>Trespass for negligence will not lie against a firm of certified public accountants by a person who lias no contractual relation with. them, for a loss caused by such person’s reliance upon a report of the defendants alleged to have been false and untrue, in purchasing the stock of a corporation, upon which they reported, where it appears that the report was shown to him by some one who suggested that he purchase the stock, and there is nothing to show that the accountants made the report with intent to deceive him.</p>

<p>Appeal, No. 248, Jan. T., 1919, by plaintiff, from decree of-C. P. No. 4, Philadelphia Co., June T., 1917, No. 4148, dismissing bill in equity in case of Addie W. Dickerson, as Administratrix of the Estate of Manuel Andre Monteiro (sometimes called Manuel Monte), deceased, v. Midvale Beneficial Association and Peter McAnally et al.</p> <p>Bill in equity against an unincorporated beneficial society to compel the payment of death benefits.</p> <p>The court in an opinion by Carr, J., dismissed the bill.</p> <p>Plaintiff appealed.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 242, Jan. T., 1919, by defendant, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1918, No. 3252, on verdict for plaintiff in case of Jerome F. McEvoy v. Quaker City Cab Company.</p> <p>Trespass to recover damages for personal injuries. Before Wessel, J.</p> <p>Verdict and judgment for plaintiff for $12,500, Defendant appealed.</p> <p>Error assigned was in refusing judgment for defendant n. o. v.</p>

<p>Wills — Power of sale — Conversion.</p> <p>Where a testator gives his estate to his executors in trust to pay the income to his wife for life, and after her death to pay the income of his brother for life and further provides that “for the better management and final distribution of my estate I authorize and empower (and after the decease of my wife and brother which ever shall last happen) order and direct my executors to sell and dispose of the whole or any part of my real estate,” the direction to sell after the death of the wife and brother, works a conversion of the real estate into money, and after the death of the wife and brother, it is properly distributed as such.</p>

<p>Negligence — Railroads—Position of peril — Sudden emergency— Soldier on guard at bridge — Contributory negligence.</p> <p>1. A soldier appointed to guard a railroad bridge will not be held guilty of contributory negligence as a matter of law, if that which is charged as negligence was done in obedience to the general orders of his superior officer, and the defendant railroad company, whose bridge was being guarded, had knowledge of, or upon inquiry could have ascertained what those orders were.</p> <p>2. One properly upon the tracks of a railroad company has the right to assume it will exercise the utmost care to avoid injuring him, and cannot be held guilty of contributory negligence as a matter of law because he did not anticipate a neglect of duty upon its part.</p> <p>3. One who without fault is placed in imminent peril by another, is not chargeable with contributory negligence because in the brief time in which he had to both decide and act, he did not select the best course to escape the threatened injury.</p>

<p>Appeal, No. 261, Jan. T., 1919, by defendant, from judgment of C. P. No. 3, Philadelphia Co., June T., 1917, No. 2525, on verdict for plaintiff in case of International Forge Co., Inc., v. Paul S. Reeves & Co., Inc.</p> <p>Assumpsit to recover the value of certain lost metal. Before McMichael, P. J.</p> <p>Verdict and judgment for plaintiff for $2,146.35. Defendant appealed.</p> <p>Errors assigned were as follows:</p> <p>1. The learned trial judge erred in refusing to make absolute defendant’s motion for judgment non obstante veredicto.</p> <p>2. The learned trial judge erred in dismissing clefendant’s motion for new trial.</p>

<p>Wills — Deeds—Power—Execution of power — Intention—Parties —Equity—Act of June If, 1879, P. L. 88.</p> <p>1. Under the Act of June 4,1879, P. L. 88, a power contained in a deed is executed by a will of earlier date than the deed, unless a contrary intention appears by the will.</p> <p>2. Under the law as it existed before the passage of that act the question as to whether or not a will was an execution of a power of appointment was one of intention to be gathered from the language of the will itself, and unless it referred either to the power, or the property the subject of the power, or it would have no operation except as an execution of the power, the will would not be treated as an execution thereof. On the other hand under the act the will operates as an execution of the power unless a contrary intention appears by the will itself.</p> <p>3. One who has no interest in a fund, cannot be heard to complain that it was not awarded to the right party.</p>

<p>Appeals — Interlocutory orders — Foreign attachment■ — Act of April 26, 1917, P. L. 102.</p> <p>1. Interlocutory orders are not the subject of review until after final judgment, unless expressly made so by statute. ■</p> <p>2. Quaere does the Act of April 26, 1917, P. L. 102, allowing an appeal from an order quashing or refusing to quash a writ of foreign attachment, apply to an order refusing to quash the attachment itself.</p> <p>Amendments — Benefits of an improper allowance — Estoppel.</p> <p>3. One who takes a benefit under an amendment cannot after-wards complain that the amendment was improperly allowed.</p> <p>Foreign attachment — Amendments—Parties—Practice, C. P.— Dissolution — Act of June IS, 18S6, P. L. 588.</p> <p>4. One who is made a defendant by amendment and as such enters security and dissolves a foreign attachment under Section 62 of the Act of June 13, 1836, P. L. 583, allowing defendants so to do, cannot afterwards complain that the amendment was improperly allowed.</p> <p>5. An objection to a writ of foreign attachment that there is no such corporation defendant as is named in the writ, will not be sustained if the party making it has been substituted as defendant in place of the corporation, and has taken advantage of a right given only to defendants.</p> <p>6. A foreign attachment which has been dissolved by the entry of security has ceased to exist, and cannot thereafter be quashed.</p> <p>7. When a defendant enters security and dissolves a foreign attachment the action must proceed in due course in like manner as if commenced by a writ .of capias ad respondendum, and the writ cannot thereafter be quashed.</p>

<p>Appeal, No. 299, Jan. T., 1919, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1917, No. 834, on verdict for plaintiff in case of Hamilton DeBouvier v. Pennsylvania Railroad Company.</p> <p>Trespass to recover damages for personal injuries. Before Shoemaker, J. •</p> <p>Verdict for plaintiff for $9,000 on which judgment was entered for $6,000, all above that amount having been remitted. Defendant appealed.</p> <p>Error assigned was in entering judgment for plaintiff on the verdict.</p>

<p>Equity — Findings of fact — Review.</p> <p>The findings of fact by a chancellor, which involve the credibility of witnesses and the weight to be given their testimony, will be given the effect of a verdict of a jury, and they will not be disturbed, on appeal, where there is testimony to support them. Even if a doubt existed, it would not be ground for reversal.</p>

<p>Appeal, No. 303, Jan. T., 1919, by plaintiff, from order of C. P. No. 2, Philadelphia Co., Dec. T., 1917, No. 4640, refusing to take off nonsuit in case of Dina Beibstein v. Abbott’s Alderney Dairies.</p> <p>Trespass to recover damages for death, of plaintiff’s husband. Before Rogers, J.</p> <p>The court entered a compulsory nonsuit which it subsequently refused to take off. Plaintiff appealed.</p> <p>Error assigned was refusal to take off nonsuit.</p>

<p>Negligence — Automobiles — Boys sledding on streets — Speed— Signal — Sounds—Evidence.</p> <p>1. The statement by a witness “I did not hear any sound at all” is not evidence of a failure to give warning, unless it appears he would have heard it had it been sounded, or that he was then giving heed to the matter.</p> <p>2. In a negligence case the speed of the vehicle causing the injury is unimportant, if it was not the cause of the accident.</p> <p>3. A driver of a vehicle who has no knowledge that boys are in the habit of sledding on a public street is not negligent because he does not take precaution to prevent injury to one who might so use it.</p> <p>4. The distinction between Eastburn v. United States Express Co., 225 Pa. 33, where a recovery was not allowed, and Yeager v. Gately & Fitzgerald, Inc., 262 Pa. 466, where it was, rests in the fact that in the former case the driver of the automobile did not know boys were in the habit of sledding on the street, and in the latter did know and failed to take proper precautions to prevent injury to them.</p>

<p>Evidence — Court records — Practice, C. P.</p> <p>1. Upon a motion for judgment non obstante veredicto, court records duly admitted in evidence, if unattacked, may be considered, no matter by whom offered.</p> <p>Negligence — Master -and servant — Safe place to work — Reliance on employer’s judgment — Proximate cause — Pleading—Plaintiff’s statement.</p> <p>2. A master is not required to furnish a servant with a safe place to work where the latter is employed for the express purpose of assisting in the repair, demolition or alteration of a property partially destroyed by fire, or is engaged for the purpose of making a dangerous place safe.</p> <p>3. In such ease an employee who claims he assumed the risk because told by the employer or his vice-principal that the place was safe, must aver and prove in what respect the place was dangerous, that he acted in reliance upon the statement that it was safe, and that he was injured by reason of the danger to which he had thus called attention.</p>

<p>Appeal, No. 266, Jan. T., 1919, by plaintiff, from judgment of C. P. No. 3, Philadelphia Co., Dec. T., 1917, on verdict for defendant in case of Abraham Gordon v. Philadelphia Rapid Transit Company and Philadelphia Railways Company.</p> <p>Trespass to recover damages for personal injuries. Before McMichael, P. J.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned are indicated in opinion of Supreme Court.</p>

Appeal, No. 86, Jan. T., 1919, by defendant, from judgment of C. P. No. 1, Philadelphia Co., March T., 1916, No. 3946, on verdict for plaintiff in case of Catherine Baxter v. Phila. & Reading Ry. Co. Trespass to recover damages for death of plaintiff’s husband. Before Patterson, J. Verdict and judgment for plaintiff for $19,000. Defendant appealed. Errors assigned were various rulings on evidence and instructions.

<p>Trusts and trustees — Spendthrift trust — Active trust — Husband as trustee and beneficiary.</p> <p>Where property is given to an executor with certain duties to perform, impressed with a spendthrift trust, to pay to himself as an individual the income for life, and at his death the estate, corpus and income, goes to his children, or others, the trust estate in the corpus and in the income is not in any manner destroyed, nor does the necessity for its existence cease during the life estate. The income still remains the testator’s property until it is actually paid to the beneficiary.</p>

Appeal, No. 221, Jan. T. 1919, by plaintiff, from judgment of C. P. Schuylkill Co., Sept. T., 1916, No. 27, for defendant n. o. v., in case of Catharine Haughney v. Mahanoy City Borough. Trespass to recover damages for personal injuries. Before Koch, J. At the trial the jury returned a verdict for plaintiff for $5,000. Subsequently the court entered judgment for defendant n. o. v. Plaintiff appealed. Error assigned was in entering judgment for defendant n. o. v.

Appeal, No. 257, Jan. T., 1919, by Stephen Chappell, Trustee, from decree of O. C. Lackawanna Co., No. 102, Year 1916, allowing bill of review in re Estate of Henry Chappell, deceased. Petition for bill of review. Before Sando, P. J. The court allowed the review. Stephen Chappell, trustee, appealed. Error assigned was the decree allowing the review.

<p>Taxation — Goal lands — Appraisement—Foot acres standard — Act of April 19,1889, P.L.S7.</p> <p>1. While the foot acre is not the usual standard employed in arriving at the value of lands for the purpose of assessment, it will be accepted where the parties have agreed to it, or do not object to its use.</p> <p>2. The parties on appeal from a tax assessment of coal lands by the board of revision, are not bound to adopt the method used by the board; any fair reasonable basis will be sufficient, if the result enlightens the court as to the value required by law.</p> <p>3. The board of revision must inquire whether the assessment has been made according to law, and the property to be valued has been so valued at a price or sum not less than it would bring at a public sale after due notice. If the board omits by mistake a part of the acreage, the court of common pleas, on appeal, has jurisdiction under the Act of April 19, 1889, P. L. 37, to add the omitted acreage. In such a case the amount is increased, but not the value.</p> <p>4. It is not the policy of the law to permit persons to escape taxation through an omission by the assessor to place a property in assessment. That such result may not be accomplished, courts will give a liberal construction to those acts which tend to an equalization of the burden of taxation.</p> <p>5. In making the assessment the taxing authorities may consider what has been the average yearly output of coal for several years preceding, the total amount of coal originally contained in the tract, what remains unmined at the time of the assessment, the amount of the royalties, if the property is under lease, and the number of years it will probably take to exhaust the coal. If it appears that the owners are carrying away coal which is free from taxation at the rate of thirty-two acres per year, they have nothing of which to complain.</p>

<p>Appeal, No. 150, Jan. T., 1919, by defendant, from judgment of O. P. Lackawanna Co., Oct. T., 1915, No. 230, on verdict for plaintiff in case of Michael J. Dempsey v. City of Scranton.</p> <p>Trespass to recover damages for personal injuries. Before Seaele, P. J., specially presiding.</p> <p>Verdict and judgment for plaintiff for $4,500. Defendant appealed.</p> <p>Errors assigned were, among others:</p> <p>2. In instructing the jury as follows:</p> <p>“Then he is entitled to recover for loss of earnings which he has sustained up to the present time, and he has given you testimony upon that point, which we will not narrate. .He testified that he has lost a certain amount by reason of being unable to give his personal attention to his business. It would be the loss which he sustained in his business by reason of his personal attention for which he could recover, and that is all; not as profit in the business, but what the business would depreciate by reason of the absence of his personal attention to it. Then he would be entitled to recover also-, if you find his injuries are permanent for such future loss of earnings as he might sustain.”</p> <p>3. In affirming the third point for charge submitted by plaintiff. The point and answer and exception thereto being as follows:</p> <p>“3. If under all the evidence in the case the jury believe that plaintiff was injured and his injury was due to the negligence of the? defendant in not keeping the street in a reasonably safe condition for travel and tbe plaintiff was exercising due care at tbe time of Ms injury, then the plaintiff would be entitled to recover such amount of money as the jury find he expended for medical care, medicines, nursing and hospital expenses during his illness. The plaintiff is also entitled to recover for the loss of earning power due to his injuries by reason of the negligence of defendant taking into consideration the age of the plaintiff, his situation in life, his condition of health and habits of industry, loss of profits he sustained from his inability to give his personal attention to the management of his business and his labor in carrying on said business, all these elements may be considered by the jury in determining the plaintiff’s damage in respect to his loss of his earning power. Any such amount jury may find in such case should be as compensation only, but should be capitalized at its present worth in money, that is to say that the loss of future earning power must be anticipated by the jury to its exact equivalent, or present worth, of Ms future loss of earnings during the several years the jury may find the plaintiff’s life expectancy is.” Answer: Affirmed. Exception.</p>

<p>Appeal, No. 210, Jan. T., 1919, by defendant, from judgment of C. P. Susquehanna Co., No. 98, Jan. T., 1916, for plaintiff n. o. v., in case of Carter v. Metropolitan Life Ins. Co.</p> <p>Assumpsit on a life insurance policy. Before Channell, P. J., specially presiding.</p> <p>At tbe trial tbe jury returned a verdict for defendant. Subsequently tbe court entered judgment for plaintiff n. o. v. Defendant appealed.</p> <p>Error assigned was in entering, judgment for plaintiff n. o. v.</p>

<p>Evidence — Opinion of expert — Exceptions—Appeals.</p> <p>1. On an appeal in an accident case an assignment of error to the admission in evidence of the opinion of an expert will not be considered where no exception was taken to the evidence.</p> <p>Trial — Charge—Exception—Request for instructions.</p> <p>2. It is too late on appeal to complain of instructions of the trial judge, where no exceptions were taken to the instructions, and the request of the judge to counsel to make further suggestions as to anything he omitted, is disregarded.</p> <p>Appeals — New trial — Abuse of discretion.</p> <p>3. The action of the court below in refusing to grant a new trial will not be reversed except in case of abuse of discretion.</p>

<p>Appeal, No. 244, Jan. T., 1919, by defendant, from judgment of C. P. No. 1, Philadelphia Co., June T., 1917, No. 1112, on verdict for plaintiff in case of Mary A. Healy v. C. Ardley Shedaker.</p> <p>Trespass for personal injuries. Before Patterson, J.</p> <p>Verdict and judgment for plaintiff for $2,500. Defendant appealed.</p> <p>Error assigned■, among others, was in refusing judgment for defendant n. o. v.</p>

Appeal, No. 288, Jan. T., 1919, by defendants, from decree of C. P. No. 5, Philadelphia Co., Sept. T., 1918, No. 1563, awarding preliminary injunction in case of Elsie Bailey et al. v. Young Women’s Christian Association of Philadelphia et al. Bill in equity for an injunction to restrain defendants from preventing the plaintiffs from voting at a corporate election, and for the appointment of a master to supervise such election. Before Staake and Monaghan, JJ.

<p>Deeds — Building restrictions — Offensive business — Public garage —ISquity—Injunction—Nuisance—Laches—Delay.</p> <p>1. Where the owner of a lot in an exclusively residence section of a city, built up with fine modern houses, holds it under a building restriction, common to the neighborhood, which provides “that there shall not be erected upon said lot......any establishment for...... any offensive business,” such owner will be enjoined from building an addition to an existing garage which will increase the storage capacity of the garage from ten automobiles to twenty-four.</p> <p>2. If it appears that she had maintained without objection on the lot a garage with a capacity for ten automobiles for three years, she will not be compelled to discontinue it; for he who would enforce a building restriction by injunction, must act promptly.</p> <p>' 3. Equity may restrain, as a nuisance, the operation of a public service garage in an exclusively residence section, aside from any building restriction.</p>

<p>Appeal, No. 313, Jan. T., 1919, by Philadelphia Brewing Company, from decree of O. C. Philadelphia Co., July T., 1918, No. 387, dismissing exceptions to adjudication in Estate of Peter Murnaghan, deceased.</p> <p>Exceptions to adjudication.</p> <p>The court dismissed the exceptions. Philadelphia Brewing Co., a creditor, appealed.</p> <p>Errors assigned were in dismissing exceptions to the adjudication.</p>

<p>Partition — Land in two counties — Jurisdiction—Averments of bill — Amendment—Act of February 20,1851¡., P. L. 89 — Appearance —Practice, G. P.</p> <p>1. A bill in equity for the partition of land lying in two counties filed in the county in which “the larger part of the estate in value is situated,” but not containing an averment showing conditions of fact required by the Act of February 20, 1854, P. L. 89, that the land was so situated, may be amended to conform to the act although before the amendment is allowed, a petition for partition is filed in the orphans’ court of the county in which the smaller part of the land is situated.</p> <p>2. In such a case, as the court had jurisdiction, and the amendment did not change the cause of action, or prejudice defendants, the amendment when made becomes a part of the bill, as if originally inserted therein. The jurisdiction was therefore not in any way ousted by the proceeding in the other county.</p> <p>3. An entry of a general appearance for defendants, in such a case, placed them in such a position that they could not enter pleas in bar to the suit, upon the ground of a lack of the statutory averment.</p>

<p>Appeal, No. 296, Jan. T., 1919, bv plaintiff, from judgment of C. P. Luzerne Co., May T., 1917, No. 811, dismissing appeal from Workmen’s Com pensation Board reversing an award of a referee in favor of a claimant in case of Bridget Clark v. Lehigh Valley Coal Company.</p> <p>Appeal from decision of Workmen’s Compensation Board.</p> <p>The court dismissed the appeal. Claimant appealed.</p> <p>Error assigned was the judgment dismissing the ap peal.</p>

<p>Contract — ■Consideration—•Mutuality — Stock subscription — : Agreement to purchase products of the corporation.</p> <p>1. A contract to purchase ten barrels of beer per week from a brewing corporation entered into as part of an agreement for the purchase of twenty shares of the capital stock of the corporation is not lacking in mutuality.</p> <p>Contract — Executed contract — Want of mutuality as defense— Receiving consideration.</p> <p>2. A party is not in a position to set up lack of mutuality as a defense to enforcement of a contract where he has received the consideration moving to him under the contract.</p> <p>Contract — Consideration—Validity—Public policy — Liquor laws —Act of May 18,1887, Sec. 5, P. L. 108 — Act June 9,1891, Sec. %, P. L. 581.</p> <p>3. An agreement by a retail liquor dealer to purchase a certain quantity of beer each week from a brewing company does not offend against public policy as declared in the statutes regulating the granting of licenses to liquor dealers, which provide in case of retail deálers that the applicant for license shall be the only person pecuniarily interested in the business, and in the ease of wholesale dealers that the applicant for license is not in any manner pecuniarily interested in the profits of the business conducted at any other place in the county where any of the liquors are sold or kept for sale, if the brewing company in question has no wholesale license for the county in which the retail dealer is licensed and operates under a State license in an adjoining county. Under the contract the brewing company derived no pecuniary interest in the retail dealer’s business.</p> <p>Contract —■ Construction —■ Existing circumstances — Agreement by dealer to purchase goods from manufacturer — Duration— No express limitation as to time — Right to terminate upon notice.</p> <p>4. A contract by a retail liquor dealer to purchase shares of capital stock of a brewing corporation and to purchase from the corporation a certain quantity of beer each week without any limitation as to the time he was to continue purchasing beer may not be terminated at any time upon reasonable notice, if it appears that he entered into the contract with knowledge that the corporation sought to sell its stock principally to liquor dealers, inasmuch as the evident intention of the parties was that the agreement should continue in force so long as he was engaged in the business of selling beer by retail, situated as he then was.</p> <p>Mr. Justice Simpson filed a dissenting opinion in which Justices Moschzisker and Kephart concurred.</p>

<p>Appeal, No. 322, Jan. T., 1919, by defendants, from judgment of Superior Court, Oct. T., 1918, No. 291, dismissing appeal from decree of C. P. No. 4, Philadelphia Co., March T., 1918, No. 4993, in equity, granting a preliminary injunction in the case of John C. Winston, Theodore J. Lewis, Arthur H. Lea, Cyrus H. K. Curtis, George Woodward et al., v. Albert H. Ladner, Jr., George G. Pierie, William A. Carr, and William Walsh, Board of Registration Commissioners of the City of Philadelphia.</p> <p>Appeal from the Superior Court.</p> <p>Bill in equity in the common pleas for injunction restraining registration commissioners from removing names of persons from the voting list. Before Audenried, P. J., Carr and Finletter, JJ.</p> <p>The court granted a preliminary injunction restraining further action by the defendants and ordered that the names of persons already taken off the list be restored.</p> <p>The Superior Court dismissed the appeal in the case. See 71 Pa. Superior Ct. 238. Defendants appealed.</p> <p>Errors assigned were in dismissing defendants’ appeal as a moot question and not sustaining the assignments of error to the action of the lower court.</p>

<p>Appeal, No. 269, Jan. T., 1919, by Robert C. Miller, Register of Wills of Montgomery County, and Roy A. Hatfield, William Warner Harper and Harmon Y. Bready, County Commissioners of Montgomery County, from decree of O. C. Philadelphia Co., Oct. T., 1917, No. 52, dismissing appeal from the Register of Wills admitting will to probate and granting letters testamentary thereon in the Estate of William D. Winsor, deceased.</p> <p>Appeal from decree of register of wills probating will of William D. Winsor, deceased, and granting letters testamentary thereon. Before Lamorelle, P. J.</p> <p>The orphans’ court dismissed the appeal. See 27 Pa Dist. R. 1010. Robert C. Miller, Register of Wills of Montgomery Co., et al., appealed.</p> <p>Errors assigned were, the findings of the court as to the domicile of the decedent and the decree dismissing the appeal.</p>

<p>Appeal, No. 129, Jan. T., 1919, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1918, No. 3917, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of Samuel W. Prussian, trading as Guaranty Motors Company v. Hudford Philadelphia Sales Company, a Corporation.</p> <p>Rule for judgment for want of a sufficient affidavit of defense. Before Audenried, P. J.</p> <p>The affidavit of defense set up a number of counterclaims. The court was of opinion that they were not properly pleaded and directed judgment for plaintiff for $7,870.60, being the amount' sued for less the sum of $1,-721.38. Defendant appealed.</p> <p>Error assigned was the order of the court, making absolute the rule for judgment for want of a sufficient affidavit of defense.</p>

<p>Appeal, No. 87, Jan. T., 1919, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1911, No. 388, on a verdict for defendant in the case of George W. Wharen v. W. C. Dershuck.</p> <p>Action in trespass for publication of a libel.</p> <p>Fuller, P. J., charged the jury as follows:</p> <p>This is a civil action for libel, as distinguished from a criminal prosecution for libel, seeking damages for the plaintiff in the civil suit, rather than the punishment for the offender in a criminal prosecution.</p> <p>It is instituted by George W. Wharen, spelled W-h-a-re-n — George Washington Wharen seems to be his full name, and I state this because it has a bearing in connection with the evidence against W. O. Dershuck, the editor and proprietor of a daily paper published at Hazleton, known as the Plain Speaker, for a certain article issued on August 8,1910, reflecting upon plaintiff’s behavior as a mail carrier. While the article appeared in the paper of August 8,1910, this action was not brought until July 7,1911, eleven months afterward, and it now appears for the first time so far as we know upon the trial list of the court, almost seven years since the paper was published.</p> <p>[It is rather a tame affair on the whole for a libel suit, which we expect to be a belligerent performance.</p> <p>Both the lawyers and the parties have behaved throughout with exemplary gentleness and gentility, and the hair has not been flying nor the blood flowing at all in connection with the proceedings, being tried in a very genteel and expeditious manner, starting yesterday afternoon I think, and being now near its conclusion.] (1)</p> <p>It would seem that on August 6,1910, there was a meeting of the school board of Foster Township and at that meeting a petition was presented by certain citizens complaining of a certain school teacher, for sundry causes, and among other causes of complaint was that she wrote too many letters, which, I am free to say, might be considered a weakness of a school teacher, and this complaint led to discussion.</p> <p>Plaintiff was present and also George McGee, the reporter of this newspaper, was present with a number of others — fifteen or sixteen altogether at the gathering. On August 8th, two days afterward, 1910, in the Plain Speaker appeared the following: “At this juncture,”— now of course there is nothing to show what the juncture was, they just start out with that — “At this juncture”— but referring no doubt, in the light of the evidence adduced here to the complaint about the teacher and to the discussion which ensued — "At this juncture Warren, (spelling the name W-a-r-r-e-n, meaning thereby the plaintiff), the mail carrier, volunteered the information that the box in the vicinity of the Oley Valley school was always loaded down with mail sent out by the teacher. This outburst of department information amazed the members of the board. They felt that Warren, a sworn government employee had committed a serious offense against the regulations of the Post Office Department, by blabbing out information that his oath and the law enjoins him to withhold. That Warren, (still spelled W-a-r-r-e-n, accompanied with the innuendo, meaning thereby the plaintiff), may be compelled to answer to the department for his part in the drama, was the opinion expressed by a number of people present at the meeting, who felt that the whole delegation was animated by some ulterior motives and unduly biased against the teacher.”</p> <p>The person directly responsible for the article was McGee, the reporter. The defendant personally was not connected with it at all, in fact he was away from home off a visit south. He had no further connection with the publication of the article at all, but nevertheless he would be responsible, in law, for whatever appeared in that newspaper, either when absent or when present, if he was editor or publisher.</p> <p>Now the disposition of this action by you, and our submission of it to you, is covered by an act of assembly, which provides, that there shall be no recovery in civil action of this character on account of the libel or alleged libel unless it was malicious or negligent; but if the jury find it to be malicious or negligent they may allow such damages as they deem proper. That is the act of assembly which is the foundation of the case. Now you must find — in order to find a verdict in favor of this plaintiff and against the defendant, it must be found first that the defendant, Mr. Dershuck, was the editor and publisher of this newspaper, Plain Speaker, and on that there can be no doubt. It is not denied. It is virtually admitted; not expressly admitted. ■ Should you find as the initial fact of the case, namely, that the defendant was editor and publisher of this paper, and therefore responsible for any article which appeared in the same and was uttered, then you must find in the second place that this article was published of and concerning the plaintiff, Geo. W. Wharen.</p> <p>He would not be entitled to recover anything unless the libel was about him and so understood.</p> <p>Now you have observed in my reading of the article that it refers to the individual as Washington A. Warren —spelling the name W-a-r-r-e-n and not W-h-a-r-e-n — and the name Warren is repeated several other times in connection with the article.</p> <p>The true name of the plaintiff is George Washington Wharen. It is pronounced, would seem to be pronounced Warren.</p> <p>***:******</p> <p>Now we come to some most vital and not so easily determined ingredients of plaintiff’s case, for you must find in the fifth place that the article was malicious, published with malice by McGee.</p> <p>Of course so far as Mr. Dershuck is concerned, there is not the slightest proof of actual malice at all. It is only legally imputed, so far as he is concerned from the acts of McGee, but he is responsible for McGee’s acts. [Now malice we all know to be an evil mind, with intention to do injury to somebody, without any justification or excuse, and the law recognizes two kinds of malice, [one of] which is actual malice — that, is where it really sets out to hurt another, to injure him, to do him an injury as if McGee were the personal enemy or was, at that time the personal enemy of this plaintiff and in order to injure him deliberately made the publication in pursuance of a threat or anything of the kind, that would be actual malice, express malice.</p> <p>Then the law recognizes another kind of malice, namely implied malice, not express, but implied from certain circumstances. I will draw them to your attention.</p> <p>Generally speaking there are two kinds of malice, malice in fact and malice in law, either of them would sustain an action for libel.</p> <p>Now did McGee have actual malice? You may ask yourselves the question first. As I say there is no proof of any illwill or intention on Ms part, didn’t even know the plaintiff.</p> <p>He attended that meeting, as he had a right to do, public meeting of the school board, for the purpose of recording the public proceedings there, as he had a right to do, and it does not seem to the court as if you could find from any of the circumstances actual or express malice.</p> <p>Nevertheless if McGee knew the article to be false— and here is one of the vital questions of fact in the case for you to answer — if he knew it to be false when he made the statement, that would make it malice in law. That would be implied malice. In the absence of any proof to show express malice or actual malice you as jurors would not only have the right, but it would be your duty to infer malice if McGee knew the article tobe false. Now did he know it to be false? It is for you to say.] (2) The case has been argued to you most ably by counsel in the case. We leave that question to you without any comment or discussion. [We simply say if you find he knew it to be false, then it was a malicious publication and this requirement of the plaintiff’s case would be met; but if he didn’t know it to be false, the implication of malice could not be drawn from the article itself, as in ordinary cases of libel, because in my judgment — and we say it to you as a matter of law — if it was based on reasonable and probable cause, if the article was published, if the statement incorporated was made upon reasonable and probable cause, it was a privileged communication.] (3)</p> <p>Now that is a legal proposition entirely for the court. A communication is privileged when made upon a proper occasion, from a proper motive, in a proper manner and based upon reasonable and probable cause. And when so made in good faith, the law does not imply malice as in the ordinary case of libel from the mere proof of what is said about the man, and actual malice must be proved. Now I say concerning this article that the occasion was proper. Here was a public meeting of the school board, open to the public, rightfully open to the public and matters of public interest being discussed, behavior of a teacher, and we say without any discussion or debate on the proposition that it was a proper occasion.</p> <p>[We say to you further, that so far as you can observe, either from the surrounding circumstances or from the article itself, the motive and the manner were proper, and therefore all the requirements of a privileged communication would be met if it was not known to be false (which of course would destroy the privilege as we have already charged you), or if though untrue it was made upon reasonable or probable cause.] (4) So if you do not find that McGee knew it to be false, you must find Avant of reasonable or probable cause, that is negligence, in order to sustain a recovery in an action by the plaintiff, and that brings us to the next ingredient or requirement, negligence. It must be found to be either malicious in the light of the instructions which I have just given you on that subject, or negligent in the light of the instruction Avhich I now give you.</p> <p>[In connection with the subject of malice I may refer here to the circumstance that as soon as the matter or within a reasonable time, as it seems to the court, after the matter was brought to the attention of the newspaper, of the reporter and of its editor, there was not only a letter on the 9th of September acknowledging the mistake and offering an explanation of it, but there was also on the 29th of September in the paper itself, published a retraction,'braking full amends as far as that goes; of course not destroying the liability; if there is a liability, but nevertheless, in the judgment of the court, going as far as could be reasonably expected in a way of retraction and in the way of restoring the plaintiff to the public esteem, if he had lost that esteem.] (5)</p> <p>*********</p> <p>Now from all the testimony, gentlemen of the jury, I think you can clearly conclude, first, that there was a complaint made there of this teacher for among other things, excessive writing of letters and use of the mail box.</p> <p>There can’t be any question about that in my mind.</p> <p>[Second, that there was a reference to the mail carrier, whoever he might be, as authority for the statement.</p> <p>Third, that this mail carrier, the plaintiff, Geo. W. Wharen, was present and did not repudiate the statement.] (6)</p> <p>[Fourth, this is not so clear, and is for you to say, and I am putting it to you with a perhaps — perhaps that information was given by somebody present and the impression was produced in good faith in the mind of McGee that this plaintiff made the statement.] (7)</p> <p>Now I put it with a perhaps, because it is not clear as the others.</p> <p>It is for you to determine from the weight of the credible testimony as you believe it, but you may find from the testimony if you so conclude.</p> <p>[Then fifth we have the testimony or derivable therefrom the consideration that while the plaintiff himself did not make the statement imputed to him, others made it about him, about the mail carrier, possibly referring to another mail carrier, but possibly referring to him, and perhaps easily applicable to him, and the newspaper would have a perfect right to publish as part of the proceedings all of those statements that were actually made. There is no doubt about that, and these statements published in the paper would have hurt the plaintiff just as the direct imputation to Mm, that he made the statements.</p> <p>At least so it appears to the court. It is for you to say, leaving that consideration and its bearings upon the malice of the controversy entirely to you. Others making the statement about him and the statement actually made by others about him, this newspaper would have had the right to print. Now would not that have been just as damaging as the statement? We leave it to you.] (8)</p> <p>*********</p> <p>[Now no suit as I have already mentioned, was brought for this libel for eleven months. Of course the first instinct of a man who is really damaged by a libelous publication is to go to law at once. He does not waste time about it. This suit was not brought for eleven months.</p> <p>Then it was not brought on to trial, as I already suggested, for seven years, 1917, publication in 1910, almost six years after suit was brought, almost seven years after the article was published. ] (9)</p> <p>[Then we say to you, as we b,ave already said, we state again in this connection oruthe matter of damages, that the letter of September, fftlr and the newspaper retraction of September,,29th was a sufficient and reasonable retraction and vindication so far as it went. ] (10)</p> <p>Of course it does not necessarily preclude recovery here if the requirements are met, as we have outlined them to you, in all instances.</p> <p>[Nevertheless it is proper for you to consider that there was a retraction and that the behavior of both the reporter and the editor — subsequent behavior independent of the article itself — is entirely free from any exhibition of actual malice, on the contrary, marked by an evident desire to make amends, accompanied by an explanation the reasonableness of which is for you.</p> <p>The plaintiff still holds the position as mail carrier, with increased compensation. There has been no loss of public or private esteem under the evidence here, he is just as well regarded by the public as he ever was. In other words, to sum up, there is no proof in this case of actual damage, actual damages in dollars and cents. ] (11)</p> <p>[The third request we refuse without reading. It was: “If you find that the defendant was the owner and publisher of the Plain Speaker, that the article complained of was published in the Plain Speaker, that it referred to the plaintiff, that it is false, your verdict should be for the plaintiff.”] (12)</p> <p>The fourth request, “If you find that the defendant was the owner of the Plain Speaker, that George McGee was the duly authorized reporter of the Plain Speaker, that he reported the article complained of in the due course of his employment, then the defendant is responsible to the plaintiff for the actions of George McGee in so doing.” We affirm that request. It is only a statement of the law of principal and agent. Mr. Dershuck as editor and publisher of the Plain Speaker would be responsible for what his reporter did in connection therewith.</p> <p>[The sixth we refuse without reading. It was: “If you find the defendant published the article complained of, without any prior investigation, that it is false, then your verdict should be for the plaintiff.”] (13)</p> <p>The same is true of the 12th, 13th, 14th, 15th and 16th requests, all of which we refuse without reading [which are as follows]:</p> <p>[Twelfth. “If you find that the defendant did not make any retraction in his paper, when the falsity of the article was called to his attention, but waited until threatened with legal proceedings; and also find for the plaintiff, then such action may be considered in connection with all other evidence in the case, in determining whether there was actual malice or illwill toward the plaintiff.”] (14)</p> <p>[Thirteenth. “If the jury find for the plaintiff, and find that George McGee was the duly authorized agent of the defendant in procuring news and in sending the article complained of, and that George McGee had no ground to believe the truth of the article, but was actuated by malice and illwill toward the plaintiff, then the defendant is responsible for such malice of his agent, and you may award exemplary or punitive damages.”] (15)</p> <p>[Fourteenth. “In determining whether the reporter, George'McGee, was actuated by actual malice or illwill, you may consider all the testimony bearing on the matter, the size of the room, the number of people present, the similarity of the plaintiff and Mr. Schultz, and the fact that the plaintiff later addressed the meeting and that Mr. McGee, correctly identified him at that time.” ] (16)</p> <p>[Fifteenth. “You may also consider as to whether George McGee was actuated by malice or illwill, the character of the corroboration of the statement of Mr. Fairchilds, as to whether it showed by its terms that it was made by the mail carrier or by some one else.” ] (17) [Sixteenth. “Your verdict on the whole evidence should be for the plaintiff.”] (18)</p> <p>The defendant’s requests aré as follows:</p> <p>1. “In order to justify a recovery by the plaintiff in this case the jury must be satisfied by a preponderance of the credible evidence that defendant published the alleged libelous article either maliciously or negligently.” That is true. We have so instructed you.</p> <p>[2. “If the jury believe that George McGee, reporter of the Plain Speaker, in good faith made inquiry from a responsible and reputable person as to the identity of the person who informed the school board of the facts contained in the alleged libel, and understood his informer to say such person was in fact Mr. Wharen, the plaintiff, then the jury may accept such circumstance to rebut any inference of malice or negligence.”</p> <p>Well we affirm that. Of course the facts are for you to find. All depends on what occurred at the meeting; what was said and whether what was said, actually said, justified McGee in concluding that the plaintiff made the statement, and acting under that impression that he published the article.] (19)</p> <p>[3. “The jury is instructed as a matter of law that there is no proof of express malice in this case.” That re-' quest is affirmed.] (20)</p> <p>Verdict and judgment for defendant.</p> <p>Plaintiff appealed.</p> <p>Errors assigned were, among others, (1-11) charge to jury; (12-20) answers to points.</p>

<p>Appeal, No. 146, Jan. T., 1919, by defendant, from decree of C. P. Luzerne Co., Oct. T., 1917, No. 6, in equity, restraining collection of a bond and mortgage and cancelling tbe same in tbe case of Edward G-. Watkins v. Ella Benscoter.</p> <p>Bill in equity for an injunction to restrain the collection of a bond and mortgage and for cancellation and surrender of the same. Before Woodward, J.</p> <p>The chancellor found the facts as follows:</p> <p>The essential facts in the case, as set forth in the pleadings, about which there is no dispute, are as follows: In 1910 Ella Benscoter, of Muhlenburg, Luzerne County, loaned $1,500 to F. J. Niemeyer and wife, on a bond and mortgage executed by the Niemeyers and delivered to her.</p> <p>In 1913 Mrs. Niemeyer, her husband having died, desired to borrow $2,000 and arranged with F. W. Larned & Son to procure a loan, which the Larneds did procure on a mortgage, and appropriated $1,500 of the amount to pay off the mortgage which the Niemeyers had formerly given to Ella Benscoter. The money was received by the Larneds on September 5,1913, but the fact that the mortgage had been paid was not communicated to Ella Benscoter until November 19,1913, when Lewis Larned called on Miss Benscoter with a power of attorney to satisfy the Niemeyer mortgage. He then informed Miss Benscoter for the first time that the Niemeyer mortgage had been paid, but assured her that they could place her money on another mortgage which would be equally good, and upon which the interest would be promptly paid. On this assurance Miss Benscoter signed the power of attorney to satisfy the Niemeyer mortgage, and delivered the mortgage itself, with the bond and insurance policies, to Lewis Larned. The power of attorney was not recorded and the Niemeyer mortgage satisfied until February 7,1914.</p> <p>The plaintiff, E. G. Watkins, had given a mortgage to Caroline Kraft, of Philadelphia, in 1910, on his property on Laurel street in Parsons, Luzerne County, for $2,000, to secure a loan of like amount, which he had secured through the Larneds. Watkins had paid $500 on this loan, so that in December, 1913, the balance due on his mortgage was $1,500.</p> <p>About the middle of December, 1913, Frank Larned told Watkins, the plaintiff, that the Kraft estate, Caroline Kraft having died and the mortgage being in the hands of her executor, wanted the mortgage paid; that he, Larned, had $1,500 in hand belonging to Miss Benscoter, which he would apply in payment of the Kraft mortgage, and had Watkins execute a new bond and mortgage for $1,500 to Miss Benscoter to secure the new loan from her, with which to pay off the Kraft mortgage. This mortgage from Watkins to Benscoter, the one in question in this case, was dated and acknowledged December 18 and recorded December 19, 1913. About a month later Watkins called at the Larned’s office and was told by Frank Larned that the Kraft estate had refused to take the money in satisfaction of Watkins’s mortgage, but had assigned the mortgage, which was not yet due, to a Dr. Petery, whereupon Watkins said that he had no use for Miss Benscoter’s money, and Frank Larned replied that he had destroyed the bond and mortgage given by Watkins to Miss Benscoter, and returned the money.</p> <p>Watkins continued to make his payments on the Kraft mortgage to the assignee, Dr. Petery, but Larned, instead of returning the $1,500 to Miss Benscoter, kept the same in his own bank account, mingled with his own funds, and paid her the interest semiannually, as it fell due, without informing her that the money had not been paid to Watkins or applied on his debt, but left her under the impression that the money had been so paid or applied, and that her mortgage .from Watkins was still in force; nor could she have ascertained otherwise by an examination of the record, because the Watkins mortgage to her was still on the record, and unsatisfied.</p> <p>Not until February, 1917, when the Larneds failed and went into bankruptcy, and Miss Benscoter ceased to receive the payments of interest on her Watkins mortgage, which had in the meantime been made by the Larneds to deceive her, were the true facts disclosed. She then placed the matter in the hands of her attorney, who made demand on the plaintiff, Mr. Watkins, for an installment of interest then overdue, whereupon the plaintiff brought this bill in equity to restrain the defendant from collecting on the mortgage, and to have the mortgage satisfied, and the accompanying bond canceled.</p> <p>The conclusions of law announced by the court at the request of the plaintiff were as follows:</p> <p>1. By executing the power of attorney to Frank W. Lamed to satisfy the Niemeyer mortgage, on 19th November, 1913, and delivering same to Lewis M. Earned, together with the Niemeyer bond, mortgage, and insurance policy, Ella Benscoter placed in the hands of Frank W. Earned & Son the means and authority, to obtain the moneys due Ella Benscoter from the Niemeyers, and by virtue thereof the said Frank W. Earned & Son having obtained such moneys and embezzled the same, the loss occasioned thereby must fall on said Ella Benscoter.</p> <p>That is affirmed.</p> <p>2. The bond and mortgage of Edward G-. Watkins, of 18th December, 1913, having been fraudulently procured by Frank W. Earned, and having been delivered to said Ella Benscoter by said Earned without value, and to cover up and conceal his (Earned’s) embezzlement, cannot be held by Ella Benscoter as a valid obligation against Watkins.</p> <p>That is affirmed.</p> <p>3. The plaintiff is entitled to the relief prayed for in the bill.</p> <p>That is affirmed.</p> <p>A decree was entered accordingly, and defendant appealed.</p> <p>Errors assigned were the findings of facts and conclusions of law and the decree of the court.</p>

<p>Statute of frauds — Evidence—Sufficiency—Parol evidence — Title to real estate — Contract by parent to convey to children — Consideration — Maintenance of home — Declarations—Exclusive possession.</p> <p>1. Persons, claiming title to real estate by virtue of an oral contract for the transfer of real estate by a parent to her children, in consideration of the maintenance of a common home by the children for the parent’s benefit, must establish their claim by evidence that is clear, precise and indubitable.</p> <p>2. In such a case the witnesses depended upon to prove the contract must have heard the bargain when made, or must have heard the parties repeat it in each other’s presence, inasmuch as a contract cannot be inferred from the declarations of one of the parties. Exclusive possession must be shown to have been assumed by the sons to take the case out of the statute.</p> <p>Statute of frauds — Evidence — Sufficiency of writing — Several papers — Parol evidence.</p> <p>3. If written memoranda, consisting of separate papers, are depended upon to satisfy the statute of frauds, when taken together they must accord in every material particular with the bargain averred inasmuch as parol evidence is incompetent to explain departures.</p> <p>4. Where in an action of ejectment by a mother against two sons, the defendants claim title by virtue of an alleged agreement, the consideration of which is to maintain a home for their mother for life, and by which she was to execute a deed to the two sons in common for one farm, and to devise by will, two other farms, one to each of the sons, such papers do not satisfy the statute of frauds where it appears that the deed specified a large money consideration, and the will made no reference whatever to the alleged agreement.</p> <p>Contract — Construction—To convey property — Consideration— Provide a home for grantor — Personal performance hy grantee— Termination — Death of grantee.</p> <p>5. An agreement by an aged parent to convey her property to her two sons in consideration of their living upon and managing the property and maintaining a home for her during her life, must be construed to require a personal performance by the sons and to terminate upon the death of the two sons during the parents’ life.</p>

<p>Appeal, No. 189, Jan. T., 1919, by defendant, from judgment of C. P. Luzerne Co., May T., 1917, No. 810, reversing the decision of the Workmen’s Compensation Board, which reversed an award of compensation made by the Referee in the case of Bridget Tigue v. Forty Fort Coal Company.</p> <p>Appeal from Workmen’s Compensation Board. Before O’Boyle, J.</p> <p>The court reversed the decision of the compensation board and entered judgment in favor of the claimant, according to the recommendation of the referee, that compensation be awarded to the claimant for the death of her husband. Defendant appealed.</p> <p>Errors assigned were the decree of the court awarding compensation and action of the court in sustaining claimant’s appeal from compensation board.</p>