Volume 265 — Pennsylvania State Reports

<p>Appeal, No. 182, Jan. T., 1919, by defendants, from decree of O. P. Luzerne Co., May T., 1915, No. 12, in equity, awarding an injunction in the case of Adelbert Furmanski, Peter Stawinski, Theodore Janczewski and Joseph Krzyzanski, members for themselves, and such of the members of the Holy Trinity Roman Catholic Polish Church and Congregation of Nanticoke, Pa., as care to join as plaintiffs therein, v. Rev. B. Iwanowski and Stanislaw Drozdowski, Frank Kublinski, Charles Wasielewski, Paul Jacewicz, Peter Pytel, Gregory Wasielewski, Zygmunt Carlinski and Casimier Thiarowicz, Trustees of the Holy Trinity Roman Catholic Polish Church and Congregation of Nanticoke, Pa.</p> <p>Bill in equity for an injunction. Before Woodward, J.</p> <p>The court entered a decree enjoining defendant, the Rev. B. Iwanowski, from exercising any of the functions of the office of parish priest for the congregation .and enjoining the trustees and other defendants from interfering with any other duly appointed priest from performing his duties with regard to the congregation. Defendants appealed..</p> <p>Errors assigned were, among others, the findings of fact and conclusions of law and the decree of the court.</p>

<p>Appeal, No. 325, Jan. T., 1919, by defendant, from order of C. P. Luzerne Co., Oct. T., 1916, No. 336, entering judgment for plaintiff in case of John Morrett v. Fire Association of Philadelphia.</p> <p>Action in assumpsit on a policy of fire insurance.</p> <p>By agreement of the parties the case was tried before the court without a jury. Before Strauss, J.</p> <p>Judgment was entered in favor of the plaintiff for $1,-770.</p> <p>Defendant appealed.</p> <p>Errors assigned were the findings of fact and conclusions of law and the order of the court.</p>

<p>Appeal, No. 95, Jan. T., 1918, by The Union Trust Company, Trustee, from order of O. C. Lancaster Co., June T., 1902, No. 47, discharging rule to amend or correct record in Estate of Oscar Hohein, deceased.</p> <p>Buie to amend or correct record.</p> <p>From the record it appeared that on January 22,1918, the orphans’ court granted a rule to show cause why the court should not “amend or correct the record of the Orphans’ Court to June Term, 1902, No. 47, by making an order that the will in dispute should again be returned to the Orphans’ Court with a certificate of the result of the trial, and that a final decree be entered in the Orphans’ Court sustaining the validity of said will and directing its probate, in accordance with the Act of Assembly in such case made and provided, or that the Court make whatever order in the premises as to it may appear just and proper.”</p> <p>The court discharged the rule. The Union Trust Company of Lancaster, trustee, appealed.</p> <p>Error assigned was order discharging the rule.</p>

<p>Negligence — Railroads—“Stop, look and listen" — Safety gates— Contributory negligence.</p> <p>1. In an action against a railroad company to recover damages for personal injuries suffered by plaintiff in a collision between his wagon and a train at a grade crossing, the plaintiff cannot recover because of contributory negligence, where it appears from his own evidence, that, as he approached the crossing, with which he was familiar, he stopped, looked and listened, at a point some twenty feet from the nearest track; that the safety gates were up; that, because of intervening buildings and cars, he was unable to obtain a view of the road from which the train which struck him was coming, until he reached the first track; that after stopping he drove on slowly, without stopping or looking again, and was struck on the second track.</p> <p>2. In such a case it was plaintiff’s duty to go upon the track itself and look and listen before attempting to drive his team across, and it was also his duty when he had entered upon the crossing to continue to look and listen to avoid danger; nor did the fact that the safety gates were not lowered relieve him of the duty of exercising the care required by the circumstances.</p>

<p>Appeal, No. 198, Jan. T., 1919, by defendant, from judgment of Superior Court, Oct. T., 1917, No. 44, affirming judgment of C. P. Northampton Co., April T., 1915, No. 51, on verdict for plaintiff in case of City of Easton v. A. R. Miller.</p> <p>Appeal from judgment of the Superior Court.</p> <p>The proceeding in the common pleas was for the imposition of a penalty for the violation of an ordinance of the City of Easton regulating traffic upon its streets and highways. The appellant, the defendant below, was a motorman in the service of the Easton Transit Company. The facts in the case and the questions involved appear in the following opinion of the Superior Court, affirming the judgment against the defendant:</p> <p>“The defendant is a motorman in the service of the Easton Transit Company, a corporation duly authorized to operate street cars on the streets of the City of Easton. He was arrested for an alleged violation of the provisions of a city ordinance regulating the traffic on certain busy streets; such regulation requiring vehicular traffic of every kind to move only in a prescribed direction on a particular street. After a hearing before the mayor he was found guilty. An appeal to the court of common pleas was asked for and allowed. The case was tried before a judge and jury. A verdict for the plaintiff followed upon which judgment was entered and the defendant appeals to this court.</p> <p>“The elaborate brief filed by the able counsel for appellant covers a very considerable extent of what we may term legal ‘terrain’ and discusses many important propositions. After an attentive consideration of the entire subject we have determined we can best indicate the reasons for the conclusion we have reached by a brief consideration of the four questions we now state:</p> <p>“ (1) Before the public service law of the State became effective, would it have been within the police power of the City of Easton to have enacted an ordinance, reasonable in its terms, regulating the traffic on its streets, if such regulation required the moving of all street cars in a prescribed direction?</p> <p>“(2) If the answer be in the affirmative, was the city shorn of the right to exercise such power by the passage of the act creating the Public Service Commission?</p> <p>“(3) Can an appellate court of law, under the facts found, declare the ordinance in question was arbitrary, unreasonable and oppressive?</p> <p>“(4) Did the ordinance impose a burden upon interstate commerce of such character that the right of the city to enact it became a federal question cognizable only in the federal courts?</p> <p>“ (1) The ordinance in question was originally enacted in 1911. It was entitled ‘An ordinance regulating traffic upon the streets and highways of the City of Easton, declaring certain acts pertaining thereto nuisances and prescribing penalties therefor.’ No difficulty appears to have arisen until in December, 1914, the said ordinance was amended by the addition thereto of six new sections. The particular one of them which appears to give rise to the contention we are now considering is section eighteen which provides, ‘All vehicles, including street passenger cars, shall, upon entering the public square known as Center Square, turn to the right thereof and pass around said square as herein directed.’ Unless the police power of the State, delegated for proper purposes to the City of Easton, has lost some of the characteristics that have heretofore been regarded as incident to a legal exercise of such power, it is difficult to perceive why the subject-matter of the ordinance in question was not well within the lines so often recognized as defining a zone, within which such power could rightfully be exercised. The evidence shows that the square in question is practically the heart of the city’s commercial life. From that center pulsates, through the radiating street arteries, a great portion of its business activities. The testimony taken, which is undisputed, shows that on one of the streets in question there passed between the hours of six o’clock a. m. and six o’clock p. m. six thousand three hundred and seventy-one vehicles of all description. This number included something over four hundred street cars of the Easton Transit Company. These cars would daily receive and discharge from twenty-five thousand to forty thousand passengers. The regulation by the city of such traffic, so as to avoid congestion, manifestly had for its purpose additional security for the lives and limbs of the public, additional protection to property in the course of transportation and the promotion of the public convenience generally. These are the badges of a proper exercise of the police power. In Radnor Township v. Bell, 27 Pa. Superior Ct. 1, this court, in a learned and careful opinion by our Brother Orlady, fully discussed the question of police power in so far as it may with propriety be discussed in any given case. Again in Central Market Company v. Erie, 44 Pa. Superior Ct. 191, we endeavored to show why the limits of the police power could not be measured by fixed and rigid lines and why in each case, as it arose, the courts could but pass upon the question immediately presented. In these opinions many cases from our own courts and those of other jurisdictions were reviewed and analyzed. In no one of them had it ever been held that an ordinance of the character of the one now before us was an abuse or an improper exercise of the police power inherent in every state and delegated by the State to the municipal agencies it has chosen to create. We are of opinion it was entirely competent for the City of Easton to enact the ordinance in question and that such enactment was a legitimate exercise of the police power lodged in the city.</p> <p>“ (2) We do not think it was within the contemplation of the legislature, when it passed the public service law, that it was dealing with the cities of the Commonwealth or was attempting to deprive them of any power reasonably necessary to enable them to perform their legitimate municipal functions. It has not been before contended, to our knowledge, that the Public Service Commission has any jurisdiction whatever to determine that a municipality could not continue to do that which it was legally empowered to do before the public service law became effective. It is true the commission may decline to approve of a contract proposed to be entered into between a municipality and a public service company. That is not because it has any jurisdiction over the municipality, which continues to be competent to enter into a proper contract without any aid from the Public Service Commission. The result referred to flows from the fact that the commission has authority to withhold its approval of a contract about to be entered into by a public service company, and without that approval the company cannot legally enter into the contract. The contract therefore fails because only one of the two parties, to wit, the city, was competent to contract. We are of opinion the public service ,law in no way deprived the City of Easton of the right to enact the ordinance in question.</p> <p>"(3) Is there anything in this record that would warrant this court in declaring, as a matter of law, the terms of the ordinance complained of were unreasonable? We think not. The fact that it may involve some readjustment of the schedules of the transit company may be conceded. It is quite possible that obedience to it may also require some relocation of the tracks of the company on the few streets in question. But such facts do not justify the conclusion that the franchise of the transit company, in the eyes of the law, has been either destroyed or impaired. A company accepting a franchise that involves a use of the public streets of a city or other municipality must accept it subject to the continuous right of such municipality to perform its strictly legal functions and obligations even though such performance may entail some expense upon the holder of the franchise in readjusting its pole lines, water and gas pipes, street car tracks and the like to the new situation brought about by the lawful act of the city. Such was the doctrine declared in American Tel. & Tel. Co. v. Harborcreek Township, 23 Pa. Superior Ct. 437, as well as Scranton Gas and Water Co. v. Scranton, 214 Pa. 586. A brief quotation from the opinion of Mr. Justice Stewaet in the cáse last cited will fully illustrate the views of this court on the question before us: 'So far as property rights are concerned, there is but slight correspondence between the easement enjoyed by appellant company in the streets of the city, and the rights of the abutting owners in their several properties. The distinctions between the two are too obvious for discussion. It is enough to say, with respect to the former, that it is held and enjoyed subject always to the earlier and superior rights of the public in the streets of the municipality. Among these is the power to regulate and control the streets in the interest of public health and safety. When these demand a change in the mode and manner of the enjoyment of the easement or privilege, and that demand is expressed through the municipal authority, in the exercise of reasonable discretion, that change must be made. Calling the legislative grant of privilege to use the streets a contract does not avoid the conditions on which the privilege is to be exercised. Whether such limitation or conditions be expressed in the grant or not is immaterial, for, as said in Butcher’s Union Slaughter House Co. v. Crescent City Live Stock Co., 111 U. S. 746, the power to control and regulate the streets so as to protect the public health, is one that cannot be bargained away by legislative or municipal grant. The power to control them for the protection of public safety, if not the same, stands on equally high ground. The same doctrine was again applied by this court in Springfield Water Co. v. Phila. & Garretford Street Ry. Co., 45 Pa. Superior Ct. 516. The reasonable and proper exercise by a municipality of its police power is readily distinguishable from situations where the municipality, acting on a mistaken sense of its power, would undertake, for instance, to prescribe the mechanical means and appliances by the aid of which a public service company would operate its cars and transport its passengers or freight. We need not prolong this opinion by referring to them in detail. We conclude the terms of the ordinance in question, as they apply to the operation of the cars of the transit company, could not be declared to be arbitrary, unreasonable or oppressive.</p> <p>“(4) The argument of the learned counsel for the appellant on this question is perhaps sufficiently answered by the statement of the learned court below that it does not appear ‘from the testimony that the cars engaged in interstate commerce enter the square.’ If that statement of the fact be true, and it appears to be, an elaborate discussion of the question raised would be entirely beside the mark. We do not think it would be difficult to show that there is nothing in the provisions of the ordinance here complained of that could fairly be said to place such a burden upon interstate commerce as would make the ordinance obnoxious either to federal legislation or decision. As we write we are informed by the public press of the decision handed down by the Supreme Court of the United States two days ago declaring unconstitutional a federal statute commonly known as the child labor law. We quote the following from the published excerpt of the opinion of the court: ‘The grant of power to Congress over the subject was to enable it to regulate such commerce and not to give it authority to control the states in their exercise of the police power over legal trade and manufacture.’</p> <p>“After mature reflection on all of the questions involved we reach the conclusion that the ordinance in question was a valid exercise of the power lodged in the city to regulate traffic on its streets and as a consequence the action of the learned court below exhibits no reversible error.</p> <p>“Judgment affirmed.” City of Easton v. Miller, 69 Pa. Superior Ct. 554.</p> <p>From the judgment of the Superior Court an appeal was allowed to the Supreme Court on the two following questions: “(1) Before the public service law of the State became effective, would it have been within the police power of the City of Easton to have enacted an ordinance, reasonable in its terms, regulating the traffic on its streets, if such regulation required the moving of all street cars in a prescribed direction? (2) If the answer be in the affirmative, was the city shorn of the right to exercise such power by the passage of the act creating the Public Service Commission?”</p> <p>Error assigned was the judgment of the Superior Court.</p>

<p>Appeals — Practice, Supreme Court — Assignments of error — ■ Charge — Exceptions.</p> <p>1. Where only a general exception is taken to a charge to the jury, but no reason is alleged regarding the same in the hearing of the court, complaints as to the charge and answers to points will not be considered except for basic and fundamental errors imperatively calling for reversal.</p> <p>Negligence — Street railways — Fright—Leaving place of safety.</p> <p>2. A common carrier which is guilty of no negligence, is not liable for an injury to a passenger who, because of fright due to a collision, leaves a place of safety, and is injured in so doing.</p> <p>3. A common carrier is not an insurer against accidents to its passengers.</p> <p>Appeals — Assignments of error — Failure to quote evidence — Verdict for defendant.</p> <p>4. Where the verdict is for the defendant, alleged errors which have no relation to plaintiffs right to recover, will not be considered.</p> <p>5. An assignment of error to the admission of evidence will not be considered where the evidence is not quoted.-</p>

<p>Appeal, No. 326, Jan. T., 1919, by plaintiff, from judgment of C. P. Columbia Co., Sept. T., 1918, No. 77, for defendant in suit of Samuel T. Shuman v. Main, Beaver & Black Creek Mutual Fire Insurance Company.</p> <p>Assumpsit on policy of fire insurance. Before Harman, P. J.</p> <p>An affidavit of defense filed averred that the first resolution, recited below in the opinion of the court, was passed on condition that the check alleged to have been sent was actually received by the secretary, and denied that the cash paid was accepted so as to reinstate the policy as in force before the fire.</p> <p>The court tried the case, without- a jury, and entered judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in entering judgment for defendant on case stated.</p>

<p>Appeal, No. 29, Jan. T., 1919, by plaintiffs, from judgment of C. P. Blair Co., Jan. T., 1918, No. 140, for defendants n. o. v. in case of M. H. McLanahan and J. King McLanahan, Executors of J. King McLanahan, deed., and J. B. Isett v. Samuel H. Goodman et al., Executors of L. S. Goodman, deceased.</p> <p>Ejectment for land in Catharine Township. Before Bailey, P. J., specially presiding.</p> <p>At the trial the jury returned a verdict for plaintiffs, subsequently the court entered judgment for defendants n. o. v. Plaintiffs appealed.</p> <p>Error assigned was in entering judgment for defendants n. o. v.</p>

Appeal, No. 33, Jan. T., 1919, by defendant, from order of C. P. Blair Co., Oct. T., 1915, No. 216, discharging rule to satisfy judgment in case of John O’Connor, now to use of Mary O’Connor and Caelie O’Connor v. E. H. Flick. Rule to satisfy judgment. The court discharged the rule on the ground that no evidence had been offered to support actual payment.

<p>Wills — Widow’s election — Act of April 21, 1911, P. L. 79 — Estoppel — Delay.</p> <p>1. Where a widow files with the register of wills an election to take under her husband’s will, but does not acknowledge it or serve it upon the executor, she is not estopped thereby from subsequently executing and acknowledging an election to take against the will, addressed to and given to the executor with a request that it be duly recorded as required by the Act of April 21, 1911, P. L. 79.</p> <p>2. In such a case the widow does not lose her right to take against the will by a delay of fifteen months in making her election; nor can the executor claim an estoppel against her election, because he paid certain monthly sums to her for the support of herself and children, no rights of third parties having intervened. Such moneys can be accounted for on settlement of the estate.</p>

<p>Appeal, No. 179, Jan. T., 1919, by plaintiff, from judgment of C. P. Blair Co., March T., 1918, No. 1, and June T., 1918, No. 232, for defendant n. o. v. in case of Ada M. McKelvey v. Juniata Borough.</p> <p>Trespass for personal injuries. Before Bailey, P. J., specially presiding.</p> <p>At the trial'the jury returned a verdict for plaintiff for $2,360. Subsequently the court entered judgment for defendant n. o. v.</p> <p>Error assigned was in entering judgment for defendant n. o. v.</p>

<p>Banks and banking — Checks—Forgery—Notice—Delay.</p> <p>In an action brought against a bank on checks bearing alleged forged counter-signatures of a referee in bankruptcy, binding directions for the defendant are proper, where it appears that the forgeries were discovered by the plaintiff in the fall of 1916, but no notice of them was given to the bank until May, 1918.</p>

<p>Beneficial societies — Beneficiaries — Refusal to interplead — Estoppel.</p> <p>Where there is but one fund in the hands of a beneficial association to be, paid to a beneficiary designated by a member, and it appears that the member changed the beneficiary by naming his wife instead of his mother, and the wife brings a suit against the society after the member’s death, and in this suit the mother refuses to interplead disclaiming any interest in the fund sought to be recovered by the wife and claiming another fund, the mother thereafter is estopped from maintaining any suit against the society.</p>

Appeals, Nos. 6 and 8, Jan. T., 1919, by the plaintiffs, from tbe decrees of C. P. Dauphin Co., Equity Docket, Nos. 576 and 578, 1916, dismissing bills in equity in cases of Germantown Trust Company v. A. W. Powell, Auditor General, and Union Trust Company of Pittsburgh v. A. W. Powell, Auditor General. Bills in equity to restrain the auditor general from enforcing the escheat Act of June 7,1915, P. L. 278.

<p>Appeal, No. 7, May T., 1919, by plaintiff, from decree of C. P. Dauphin Co., No. 37, Commonwealth Docket, 1916, No. 575, in equity, dismissing bill in equity in case of Columbia National Bank v. A. W. Powell, Auditor General.</p> <p>Bill in equity to restrain the auditor general from enforcing the Escheat Act of June 7, 1915, P, L. 878, against a national bank. Before Kunkel, P. J.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeals, Nos. 228 and 229, Jan. T., 1919, by Bessie Slater Allen and Geo. W. Slater from decree of O. O. Schuylkill Co., Noy. T., 1917, No. 6, dismissing exceptions to adjudication in Estate of Henry P. Slater, deceased.</p> <p>Exceptions to adjudication. Before Wilhelm, P. J.</p> <p>See Slater v. Moyer, 245 Pa. 60.</p> <p>The court dismissed the exceptions. Bessie Slater Allen and George W. Slater appealed.</p> <p>Errors assigned were in dismissing the exceptions to the adjudication.</p>

<p>Appeal, No. 44, Oct. T., 1919, by defendant, from judgment of O. & T. Cambria Co., Sept. T., 1917, No. 7, on verdict of guilty of murder of tbe first degree in case of Commonwealth v. George Tompkins.</p> <p>Indictment for murder. Before O’Connor, J.</p> <p>Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was (2) the portion of the charge of the court quoted in the opinion of the Supreme Court.</p>

<p>Appeal, No. 286, Jan. T., 1919, by plaintiff, from order of C. P. Luzerne Co., July T., 1917, No. 647, striking off judgment in case of Howard Beishline v. Joseph Kahn and London & Lancashire Indemnity Company of America.</p> <p>Rule to strike off judgment. Before the five judges of the Court of Common Pleas of Luzerne County.</p> <p>The court made the rule absolute. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 102, Jan. T., 1919, by plaintiffs, from order of C. P. No. 2, Lackawanna Co., Nov. T., 1917, No. 2979, sustaining appeal from Workmen’s Compensation Board.</p> <p>Appeal from Workmen’s Compensation Board.</p> <p>Tbe court sustained tbe appeal, and set aside tbe award. Complainants appealed.</p> <p>Error assigned was tbe order of tbe court.</p>

<p>Appeal, No. 128, Jan. T., 1917, by plaintiff, from decree of C. P. Erie Co., Sept. T., 1916, No. 5, dismissing bill in equity in case of A. H. Schaper, on behalf of himself and Mary Schaper, his wife, v. Cleveland & Erie Ry. Co.</p> <p>Bill in equity to enforce performance of a written contract.</p> <p>The court dismissed the bill. Plaintiff appealed.’</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Appeal, No. 160, Jan. T., 1919, by Mary B. Mebl, from decree of O. C. Erie Co., Noy. T., 1917, No. 58, sustaining exceptions to confirmation of sale of real estate in Estate of Elizabeth Behringer, deceased.</p> <p>Exceptions to confirmation of sale of real estate. Before Whittelsey, J.</p> <p>The court sustained the exceptions. Mary B. Mehl appealed.</p> <p>Errors assigned were in the following form:</p> <p>1. The learned court erred in entering the following decree: “And now, May 6th, 1918, it is ordered that the exceptions to the confirmation of the sale of the real estate in question be sustained and the said sale is set aside and the rule to show cause why the purchaser, M. A. Krug, should not be relieved from the payment of his bid is made absolute.”</p> <p>2. The learned court erred in not dismissing the exceptions of Edward J. Behringer and Charles W. Behringer.</p> <p>3. The learned court erred in not dismissing the petition of M. A. Krug.</p> <p>4. The learned court erred in not confirming absolutely the sale of the real estate by Mary B. Mehl, trustee, to M. A. Krug.</p>

Appeal, No. 37, Jan. T., 1919, by plaintiffs, from order of C. P. Erie Co., May T., 1917, No. 163, discharging rule for judgment for plaintiffs under the pleadings in case of H. W. Hartley, E. E. Hartley, Anna Jane Sparling and Mary Ellen Burch v. J. C. Hartley. Ejectment for land in Greenfield Township. Before Rossiter, J. From the record it appeared that plaintiffs claimed under clause 3 of the will of Lucinda W. Hartley.

<p>Taxation — Residence of taxpayer — Change of residence — Findings of fact.</p> <p>On an appeal from a tax assessment for personal taxes, where the appellant claims that he had removed his residence from the county and State before the taxes were assessed, a finding of fact by the court of common pleas that the appellant had removed his residence and changed his domicile to another state before the assessment, supported by competent testimony, will be affirmed on appeal.</p>

Appeal, No. 220, Jan. T., 1919, by defendant, from judgment of C. P. Erie Co., Sept. T., 1917, No. 18, on verdict for plaintiff in case of Mary Muscarella, now Scavage, v. New York Central Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Verdict and judgment for plaintiff for $5,000. Defendant appealed. 'Error assigned was refusal to enter judgment for defendant n. o. v.

Appeal, No. 321, Jan. T., 1919, by defendant, from judgment of C. P. Crawford Co., May T., 1918, No. 23, on verdict for plaintiff in suit of Ida Snyder v. James McGill, Administrator of the Estate of Isaac McGill, late of Hayfield Township, deceased. Assumpsit for breach of contract to leave by will property for services to be rendered by a niece to an uncle. Before Corbet, P. J., specially presiding. Verdict and judgment for plaintiff for $3,277. Defendant appealed.

<p>Equity — Preliminary injunction — Appeals—Status quo.</p> <p>The established practice of the appellate court on an appeal from the award or refusal of a preliminary injunction is to decline to consider the merits of the case; and when it appears that there was apparently sufficient ground for the action of the court below, the status quo will not be disturbed, but will be continued to final hearing.</p>

Appeal, No. 324, Jan. T., 1919, by defendant, from judgment of C. P. McKean Co., Oct. T., 1917, No. 55, on verdict for plaintiff in case of Katherine Groner v. The Supreme Tent of the Knights of the Maccabees of the.World. Assumpsit to recover life insurance. Before Heck, P. J., specially presiding. Verdict and judgment for plaintiff for $2,000. Defendant appealed. Errors assigned were various portions of the charge and refusal of new trial.

<p>Appeal, No. 216, Jan. T., 1919, by defendant, from judgment of Superior Ct., Oct. T., 1917, No. 83, affirming judgment of O. & T. Chester Co., Aug. T., 1916, No. 16, on verdict of guilty in case of Commonwealth v. Edward D. Stoner.</p> <p>Appeal from judgment of Superior Court.</p> <p>See Commonwealth v. Stoner, 70 Pa. Superior Ct. 365.</p> <p>The Superior Court affirmed the judgment of the court of oyer and terminer. Defendant appealed.</p> <p>Error assigned was the judgment of the Superior Court.</p>

Appeal, No. 33, Oct. T., 1919, by plaintiff, from judgment of Superior Court, April T., 1918, No. 72, affirming order of C. P. Beaver Co., March T., 1916, No. 336, dismissing exceptions to auditor’s report in case of Henry Finn v. W. J. Mellon and Smith D. Hicks, Administrators of Hiram Hicks, defendants, and Emma Hicks, Smith D. Hicks, James H. Hicks, Geo.

<p>Appeal, No. 114, Jan. T., 1919, by defendant, from judgment of C. P. No. 4, Philadelphia Co., March T., 1916, No. 1600, on verdict for plaintiff in case of Howard E. Mitchell v. The Baldwin Locomotive Works, a corporation of the State of Pennsylvania, Appellant, Eddystone Ammunition Corporation, a corporation of the State of New York; and Remington Arms Company, a Corporation of the State of Delaware.</p> <p>Assumpsit to recover commissions on a contract alleged to have been procured by plaintiff. . Before Carr, J.</p> <p>Verdict and judgment for plaintiff for $218,750. Defendant appealed.</p> <p>Error assigned was in overruling motion for judgment for defendant n. o. v.</p>

<p>School law — Contracts—Failure to advertise — Directors — Surcharge — Payments of money — Ratification—Auditors—Filing report — Notice—Jurisdiction—Waiver of objection — Acts of May 18, 1911, P. L. 809, l¡-28, and June 9, 1911, P. L. 865.</p> <p>1. Where the auditors of the accounts of school directors file their report in the court of common pleas and file a copy with the school board as provided by the Act of May 18, 1911, P. L. 309, the directors cannot object that the court of common pleas was without jurisdiction, because the auditors did not file their report in the court of quarter sessions as provided by the Act of June 9, 1911, P. L. 865, and notify the directors of a surcharge before filing their report, as provided by the Act of May 18, 1911, where it appears that the directors had actual notice of the report and surcharge, and made no objection to the jurisdiction until after their appearance in the common pleas and trial on the merits, and it also appears that they were not in fact harmed, or that any technical right was lost by them, through the action of the auditors.</p> <p>2. In such a ease, if the directors had failed to appear, the want of notice to which they were entitled under the act, would have been a valid defense, but, having appeared, they submitted themselves to the jurisdiction of the court.</p> <p>3. Auditors may surcharge school directors with improper payments made during the fiscal year, although such payments were made on contracts entered into by such directors, previous to the beginning of the year covered by the account.</p> <p>4. School directors may be surcharged with illegal payments of school moneys, although the records of the board do not show that they actually voted for or approved the payments, if it appears that they were present at the meetings, made no objections to the payments, and the circumstances are such that the court may assume that each member voted for or approved the payments, or subsequently ratified the acts of the others.</p> <p>5. School directors may be surcharged for the illegal payments of school moneys, although there is no evidence to show that the school district actually suffered financial loss through fault or negligence of the directors, within the meaning of the Act of June 9, 1911, P. L. 865.</p> <p>6. In issuing orders for the payment of money, the gchool directors must be governed entirely by the provisions of the school code with respect to both the manner of payment and the purpose. If they award contracts without competitive bidding and pay out moneys under such contracts, they are personally liable for the whole amount of such payments.</p>

<p>Appeal, No. 295, Jan. T., 1919, by plaintiff, from decree of C. P. Huntingdon Co., May T., 1917, No. 222, dismissing bill in equity in case of H. C. Isett v. Ellen C. Maclay.</p> <p>Bill in equity for the cancellation of a deed. Before Bailey, P. J.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree dismissing the bill.</p>

<p>Trusts'and trustees — Purchase by trustee — Resulting trust — Control of sale.</p> <p>1. If a trustee becomes the purchaser of property at public sale brought about or in any manner controlled by him, he will be presumed to buy and hold for the benefit of the trust. But this rule does not apply where the trustee is without control over the sale and is not instrumental in bringing it about. In the latter case he may bid and become the purchaser of the property free from any trust on his part.</p> <p>2. Neither are lien creditors, equally with third persons, prevented from bidding at a sale fairly conducted and purchasing the property free from obligation to other creditors; consequently, an agreement between two or more lien creditors and the trustee to bid for tbeir mutual protection does not alter the situation so long as the transaction is free from fraud or attempt in any manner to prevent free and open competitive bidding.</p> <p>3. The mere fact that the property was purchased. at a price considerably less than its actual value is not sufficient evidence upon which to found an inference of fraud.</p> <p>Equity — Findings of fact — Review.</p> <p>4. The findings of a chancellor based upon sufficient evidence will not be reversed in the absence of clear error.</p>

Appeal, No. 153, Jan. T., 1919, by defendant, from judgment of C. P. Northampton Co., April T., 1918, No. 53, for plaintiff on case stated in suit of Lafayette S. Garnier v. Tunis S. Garnier. Case stated to determine the marketable title to real estate. Before Stewart, P. J. The court entered judgment for plaintiff for $2,000. Defendant appealed. Error assigned was in entering judgment for plaintiff.

<p>Appeal, No. 34, Jan. T., 1919, by plaintiff, from order of C. P. Erie Co., Sept. T., 1915, No. 263, refusing to take off nonsuit in case of Erie County Electric Company v. Mutual Telephone Company.</p> <p>Trespass to recover the amount of a judgment which plaintiff was compelled to pay. Before Criswell, P. J., specially presiding.</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>

Appeal, No. 300, Jan. T., 1919, by Harry A. Lord, from decree of O. C. Berks Co., May T., 1918, No. 33, dismissing exceptions to adjudication in Estate of William Reinheimer, deceased. Exceptions to adjudication.

<p>Contracts — Municipal contract — Reservoir — Substantial performance — Extra world provisions — Rescission—Waiver—Estoppel —Retained percentage — Principal and surety.</p> <p>1. A contract for the construction of a reservoir for a city provided that all rock encountered in making the necessary excavations for the core-wall, was to be taken out. The excavation of this rock was to be paid for at a certain unit price per yard. It was supposed that there would he enough loose stone from such excavations to make the facing and the riprap for the inner slope of the reservoir. It turned out however that there was not sufficient loose stone for the work, and the contractor was obliged to go beyond the lines of the reservoir and blast rock from the hillside at an additional expense. It was not denied that the contractor was hound to furnish this material to complete the facing and riprap. He claimed, however, that he was entitled for this work, the unit price of rock excavation as specified in the contract. The city claimed that this work was taken care of under the extra work clause which provided that extra work or material was such extra work or material as the contractor was required to perform or furnish, and for which no definite price per unit was fixed in the contract. Meld, (1) that the construction placed upon the contract by the city was correct; (2) that the contractor had no right to decline to proceed with the work because of the city’s refusal to accept his construction of the contract; (3) that the doctrine of substantial performance had no place, inasmuch as the reservoir was not in any sense completed until the facing and riprap were in place; and this was the case although a small part of the reservoir might he used.</p> <p>2. In such a case the fact that the city had waived its right to rescind the contract because of the noncompletion of the work within the time limit, did not estop it from thereafter rescinding the contract when the contractor refused to do certain parts of the work required by the agreement.</p> <p>3. Where the contract of suretyship for the performance of a municipal contract, provides that, in ease of default by the principal, all moneys due to the principal by the city shall thereupon become payable to tbe surety company, tbe principal in an action against tbe city cannot claim the retained percentage, on tbe ground that tbe surety bad not collected and might never collect such percentage.</p> <p>4. Tbe retained percentage was, by tbe terms of tbe contract of suretyship, assigned to tbe surety, and it was bound to collect it, less any claim that the city might have against it, and a failure to do so, after proper notice, would make it, and perhaps tbe city also, liable to an accounting for the net balance due by the city, as well as any balance due on tbe last estimate paid to tbe surety company.</p> <p>5. In affirming a judgment against tbe principal in such an action, tbe appellate court will do so without prejudice to bis right to proceed for such moneys as may be due him, by a proper action in law or equity.</p>

<p>Equity — Practice, equity — Findings of fact — Inconsistent findings — Remission of record.</p> <p>Where on appeal from a decree in equity, the record discloses numerous inconsistent findings of fact, some of which have a tendency to sustain the decree, while others are adverse to it, the appellate court will remit the record to the court below, in order that the findings may be made clear and consistent.</p>

<p>Appeal, No. 76, Jan. T., 1919, by Elizabeth Schaff, from decree of O. C. Erie Co., Feb. T., 1918, No. 76, sustaining decision of register of wills refusing to admit to probate the alleged will of John H. Seiter.</p> <p>Appeal from decision of register of wills. Before Whittelsey, J.</p> <p>The four pieces of paper alleged to constitute the will of the deceased were in the following form:</p> <p>Paragraph on one page:</p> <p>“I, John Seiter, of 311 French Street, in the City of Erie, County of Erie and State of Pennsylvania, being of sound and disposing mind, memory and understanding, do make, publish and declare the following to be my last will and testament, hereby revoking all former wills by me at any time heretofore made.</p> <p>“First. I direct that all my just debts and funeral expenses be paid as soon as may be after my decease.”</p> <p>Paragraph on another page:</p> <p>“Eighth. As to the rest, residue and remainder of my estate, real, personal and mixed, I give, devise and bequeath the same to my hereinafter named executors, in trust to sell and dispose of the same at public or private sale and to the best advantage and to divide the proceeds thereof between my niece, Marie Seiter, of Olean, New York, and my deceased wife’s niece, Elizabeth Schaff, Erie, Pennsylvania, share and share alike. My said real estate is to be sold and converted by my said executors within a reasonable time after my decease.”</p> <p>Paragraph on another page:</p> <p>“Signed, sealed, published and declared by the above named John Seiter, as and for his last will and testament in the presence of us, who at his request and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses hereto.</p> <p>“John Seiter (Seal)</p> <p>“John R. Haughney, 519 Myrtle St.</p> <p>“Adelaide Markley, St. Vincent’s Hospital.”</p> <p>Paragraph on another page:</p> <p>Endorsed on the back of the envelope.</p> <p>“Will of</p> <p>“John Seiter</p> <p>“Dated January 29, 1915.</p> <p>“Law Office of</p> <p>“J. R. Haughney,</p> <p>“604-605 Masonic Temple,</p> <p>“Erie, Pa.”</p> <p>The court sustained the decision of the register. Elizabeth Schaff appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Wills — Devise—Buie in Shelley’s Case.</p> <p>1. A devise of real estate to a son, with a direction that the son “shall not alien, sell, assign, mortgage, or in any manner encumber any of the lands or real estate bequeathed to him by me during his natural life, but the same shall descend to his legal heirs,” gives a fee simple estate to the son under the rule in Shelley’s Oase.</p> <p>Practice, C. P. — Ejectment—Judgment on pleadings — Appeals.</p> <p>2. The appellant in an ejectment cannot complain that the lower court disposed of the case on the pleadings, where the record shows that there was no issue of fact, and that appellant was the first to treat the case as one of law and moved for judgment on the pleadings.</p>

<p>Negligence — Railroads—Grade crossing — “8iop, look and listen” —Death—Contributory negligence — Evidence.</p> <p>1. No damages can be recovered for the death of a pedestrian, killed at a grade crossing at night, where it appears that no one saw the accident; that deceased was familiar with the crossing; that the train which was alleged to have struck him was running backwards at the rate of ten miles an hour with the tender in front, on which were two lights; that the bell on the engine rang continually and automatically; that a whistle was blown two squares away, and that at a distance of forty feet from the track there was a view of the track for a distance of over three hundred feet which increased as one approached the rails to a distance of two thousand feet at fifteen feet from the track. Such a state of facts discloses no negligence of the defendant, but discloses contributory negligence on the part of the deceased.</p> <p>2. A man cannot be heard to say he looked and listened if, in spite of what must have been obvious, he walks directly in front of an approaching train.</p> <p>Negligence — Evidence—Burden of proof — Two or more causes— Warning — Positive and negative testimony.</p> <p>3. In a negligence case the burden of proof is on the plaintiff to show that the defendant’s negligence was the sole and proximate cause of the injury to the exclusion of other causes. It is insufficient merely to show that the injury may have been due to one or more causes, for only one of which the defendant would be responsible.</p> <p>4. Testimony of plaintiff’s witnesses that they heard neither bell nor whistle is without avail in the face of positive testimony of witnesses for plaintiff and defendant to tbe effect that tbe bell and whistle were both beard.</p>

<p>Negligence — Railroads—Federal Employers Liability Act — RisTe of employment — Obvious dangers — Burden of proof — Contributory negligence — Case for jury.</p> <p>1. Except as to injuries resulting from the violation of statutes, the common law doctrine of assumption of risk remains as a compíete defense in an action under the Federal Employers Liability Act of 1908.</p> <p>2. The employee assumes, as a risk of his employment, such dangers as are normally and necessarily incident to his occupation, and a workman of mature years, is taken to .assume them whether he is aware of their existence or not; but risks of another sort, not naturally incident to the occupation, may arise out of the failure of the employer to exercise due care. They are the unusual, extraordinary and unexpected acts, and the employee is not to he treated as assuming such risks until he becomes aware of their existence, unless the act or risk is so obvious that an ordinarily prudent person would have observed and appreciated them.</p> <p>3. It is only in a clear case that the question of the assumption of a risk is one of law for the court, and where there is doubt as to the facts, or as to inference to be drawn from them, it becomes a question for the jury. The burden of proof as to the assumption of risk is on the defendant.</p> <p>4. The servant assumes the risks incident to the negligent acts of the officers, agents and fellow employees of the master, but he does not assume the risks of unusual and extraordinary acts of negligence.</p> <p>5. In an action against a railroad company under the Federal Employers Liability Act to recover damages for the death of plaintiff’s husband, the case is for the jury where the evidence, although in some essentials flatly contradicted, tended to show that the deceased had been employed for three or four years as a repairman; that, at the time of the accident, he was engaged in oiling a switch in defendant’s yard; that in doing so he was compelled to lean over his work, and could not see, while in this position, an approaching engine, the view of which was obstructed by the girders of a bridge; that he was struck by a “helper” engine moving backwards; that there was a stop signal against the engine, as it made its return trip, and this was not released until the engine was close to the bridge, which obstructed deceased’s view; and that it was the custom to ring the bell while the engine was moving backwards, but that this was not done on this occasion.</p> <p>6. In such a case the failure of the engineer to give the customary warning, was an unusual and unexpected act, not to be ordinarily foreseen, and the risk of which was not assumed by the deceased.</p>

<p>Appeal, No. 217, Jan. T., 1919, by plaintiff, from decree of C. P. Cumberland Co., June T., 1914, No. 1, dismissing bill in equity in case of Valley Railways y. Mechanicsburg Borough.</p> <p>Bill in equity for an injunction. Before McPherson, P. J., specially presiding.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was decree dismissing the bill.</p>

<p>Practice, G. P. — Evidence—Commissioner to talce testimony— Foreign court — Subpoena to compel attendance of witness — Appeals —Parties.</p> <p>1. The court of common pleas has no power to authorize a commissioner appointed by a court of another state to issue a subpoena to compel witnesses to appear before him for oral examination and produce books and documents.</p> <p>2. Such a commissioner has no standing to maintain an appeal from a decree of tbe court of common pleas refusing him authority to issue subpoenas, inasmuch as be is not a party in interest in tbe proceeding.</p>

<p>Appeal, No. 171, Jan. T., 1917, by plaintiff, from judgment of C. P. Luzerne Co., Oct. T., 1913, No. 1229, for defendant n. o. v., in case of Trustees of the Proprietors of Kingston v. Kingston Coal Company.</p> <p>Trespass for an alleged wrongful mining of coal. Before Carman, J.</p> <p>The jury returned a verdict for $1,600 but judgment was entered for defendant n. o. v. Plaintiff appealed.</p> <p>Error assigned, was in entering judgment for defendant n. o. v.</p>

<p>Appeal, No. 54, Oct. T., 1919, by defendant, from judgment of O. & T. Clarion Co., Aug. Sessions, 1918, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth v. Tony Mulferno.</p> <p>Indictment for murder. Before Sloan, P. J.</p> <p>Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. The defendant appealed.</p> <p>Errors assigned were various rulings on evidence.</p>

<p>Criminal law — Murder—Opinion—Witness—Rvidence—Reputation — Charge of jury — Separation of jury — Statements—Confession.</p> <p>1. On the trial of an indictment for murder, it is competent for a physician, who saw the deceased shortly after his death, to express an opinion of approximately how long the man had been dead, judging by the amount of heat he found in the body.</p> <p>2. Voluntary statements made by a defendant charged with murder as to the occurrence, may be used against him, although not containing a confession of guilt.</p> <p>3. Where a son, charged with murder of his father in their home, when no other members of the family were there, testifies that the killing was done by four negroes, it is competent to prove by neighbors, having means of observation, that no parties, like those described by the defendant, were seen going to or from the house, or in the neighborhood, on the afternoon of the occurrence.</p> <p>4. Where the trial judge on a trial for murder fully and accurately instructs the jury as to the value of good character as a defense, it is not error to add “but, where the jury is satisfied beyond a reasonable doubt under all the evidence, that the defendant is guilty, evidence of previous good character is not to overcome the conclusion which follows from that view of the ease.” It is only in the absence of other adequate instructions upon the question that such language is condemned.</p> <p>5. It is not error for the trial judge in a murder case to refer to the homicide as a felonious killing, where the defendant charges that the killing was the wilful and premeditated act of other parties.</p> <p>6. In a murder trial where the verdict is guilty of murder in the second degree, a temporary separation of the jury is unimportant and will not be considered, on appeal, as a ground for reversal.</p> <p>7. On an appeal from a conviction of murder in the second degree the judgment will not be reversed, where the judge states to the jury, after they had informed him that they could not agree: “You must agree......If some one of you should become physically unable to remain, the situation would be different, but as long as you are physically able to remain, it is your duty to undertake to agree.”</p>

<p>Appeal, No. 112, Jan. T., 1919, by plaintiffs, from, decree of C. P. Warren Co., Dec. T., 1911, No. 88, dismissing bill in equity in case of William Compton and Adelia Compton v. Otis F. Hoffman, Individually and as Executor and Trustee under the will of Nancy L. Hoffman, deceased.</p> <p>Bill in equity for the cancellation of deeds and an accounting. Before Bouton, P. J., specially presiding.</p> <p>The court dismissed the bill. Plaintiff appealed.</p> <p>Error assigned was the decree dismissing the bill, and various rulings.</p>

<p>Appeal, No. 308, Jan. T., 1919, by plaintiff, from order of CL P. No. 5, Philadelphia Co., Sept. T., 191*8, No. 159, M.- L. D., striking off mechanic’s lien in case of Charles J. Williams v. Oliver H. Bair, owner or reputed owner.</p> <p>Rule to strike off mechanic’s lien. Before Staake, J.</p> <p>The court made absolute the rule to strike off the lien. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 319, Jan. T., 1919, by defendant, from judgment of O. & T. Fayette Co., Sept. T., 1919, No. 10, on verdict of guilty of murder of the first degree in case of Commonwealth v. Lewis Page.</p> <p>Indictment for murder. Before Van Swearingen, P. J.</p> <p>Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were (1-3) rulings on evidence and (4) that the charge was inadequate as to motive.</p>

<p>Constitutional law — Telephone company — Corporations—Refusal to permit extension of lines.</p> <p>1. The Public Service Commission has jurisdiction in the exercise of due discretion to refuse a petition of a telephone company to extend its lines into a district served by another company.</p> <p>2. In such a case the petitioner is not denied any constitutional right under Section 12, Article XVI, of the Constitution which provides that “any association or corporation organized for the purpose or any individual shall have the right to construct and maintain lines of telegraph within this State, and to connect the same with other lines; and the general assembly shall by a general law of uniform operation provide reasonable regulations to give full effect to this section.”</p>

<p>Appeals — Practice, Supreme Court — Decree — Assignments of error — Omission of final decree.</p> <p>An appeal from a decree of distribution by the orphans’ court, complaining of the allowance of certain claims, will be dismissed where the final decree has not been assigned as error.</p>

Appeal, No. 277, Jan. T., 1919, by plaintiff, from judgment of C. P. Fayette Co., Sept. T., 1915, No. 532, refusing to take off compulsory nonsuit in case of Pearl Belle Martin v. Pennsylvania Railroad Company. Trespass to recover damages for death of plaintiff’s husband. Before Van Swearingen, P. J. The court granted a compulsory nonsuit on account of decedent’s contributory negligence, which it subsequently refused to take off. Plaintiff appealed.

<p>Workmen’s, compensation — Payments of compensation — Payments for hospital service — Petition not fled within a year — Statute of limitations — Workmen’s Compensation Act, June 2, 1915, P. L. 786, Sec. 806 (e), Sec. 815.</p> <p>1. Payments made for “surgical, medical and hospital services, medicines and supplies” under section 306 (e) of the Workmen’s Compensation Act of June 2, 1915, P. L. J36, are not “payments of compensation” within the purview of section 315 of said act.</p> <p>2. Hence such payments under section 306 .(e) do not toll the running of the limitation prescribed by Section 31:5.</p> <p>3. Where a petition for compensation is not filed until more than one year after an accident, petitioner cannot recover although within the year a payment has been made to a hospital under section 306 (e).</p>

<p>Appeal, No. 291, Jan. T., 1919, by defendant, B. W. Sleppy, Jr., from order of C. P. Northumberland Co., No. 439, Equity Docket, discharging rule to set aside the service of bill in equity in the case of Christiana C. Bird v. Edward W. Sleppy and B. W. Sleppy, Jr.</p> <p>Rule to vacate order authorizing extraterritorial service of bill in equity, and to set aside such service. Before Cummings, P. J.</p> <p>The court discharged the rule. B. W. Sleppy, Jr., appealed.</p> <p>Error assigned was discharging rule to set aside service.</p>

Appeal, No. 327, Jan. T., 1919, by plaintiffs, from order of C. P. Fayette Co., March T., 1915, No. 630, refusing to take off nonsuit in case of Joseph C. Shaffer and Icyline Shaffer, his wife, v. Charles M. Mowery. Action to recover damages for death of plaintiff’s son, alleged to have been caused by defendant’s unlawful act in selling a cartridge to the minor brother of the deceased.

Appeal, No. 21, Jan. T., 1918, by Abraham Wernick, Intervenor, from judgment of Superior Court, Oct. T., 1916, No. 299, reversing judgment of the Municipal Court of Philadelphia, Aug. T., 1915, No. 302, ordering defendant to pay plaintiff’s attorney a fee in the case of Petro Laplacca and Catalda Laplacca v. Philadelphia Eapid Transit Company, Abraham Wernick, Intervenor. Appeal from judgment of the Superior Court. See 68 Pa. Superior Ct. 208.

<p>Appeal, No. 29, Jan. T., 1920, by defendant, from decree of C. P. Northampton Co., sitting in equity, April T., 1919, No. 4, granting a preliminary injunction in the case of City Ice Company v. Easton Merchants’ Ice Company.</p> <p>Bill in equity for a preliminary injunction. Before Stewart, P. J.</p> <p>The court continued the preliminary injunction until further order. Defendant appealed.</p> <p>Errors assigned were (1-6) the conclusions of law; and (7) the decree of the court.</p>

<p>Appeals, Nos. 81 and 82, Jan. T., 1919, by Farmers Trust Company of Lancaster, Executor and Trustee, and Willis Geist et al., Members of the Board of School Directors of Upper Leacock Township from decree of O. C. Lancaster Co., Feb. T., 1917, No. 27, awarding distribution under the will of David S. Johns, deceased.</p> <p>Exceptions to order awarding distribution under the will of David S. Johns, deceased. Before Smith, P. J.</p> <p>At the adjudication of the account, the executor and the residuary legatees objected to the award of the trust fund as directed by the testator upon the ground that it was impossible to carry out the trust without breaking the condition annexed thereto. The court below sustained the objection and awarded the whole of the estate to the residuary legatees. The school directors and the trustee appointed by the testator to receive the trust appealed.</p> <p>Errors assigned were the dismissal of the exceptions to the adjudication and the decree of the court.</p>

<p>Wills — Undue influence — Mental incapacity — Evidence — Issue d. v. n. — Burden of proof — Interest of beneficiary — Physician and patient — Circumstances surrounding preparation of will.</p> <p>1. A contestant of a will is not entitled to an issue devisavit vel non merely because a confidential relation exists between tbe decedent and his physician, who assisted in the preparation of the will and who is named as the residuary legatee receiving a substantial part of the estate, where the testator’s testamentary capacity was clearly established and no attempt was made to show that the testator was mentally weak at the time the will was dictated and for some time thereafter, and it did not appear that the physician made any attempt to exercise control over the decedent, other than in a professional way.</p> <p>2. The interest which the decedent’s physician received under the will, though uncertain, was sufficient to shift the burden of proof to the proponents of the will to show testamentary capacity, and that no improper influence was exerted, where the testator disposing of an estate valued at about $6,500 gave his brother and sister each five dollars, and the rest of his property to his physician in trust for a young woman who had lived with the testator from early childhood until her marriage, with directions to pay her twenty-five dollars a month during her life, and any additional money necessary for her comfort in case of sickness, and the residue after her death to the physician to dispose of as he should see fit, except that it should not be given to testator’s brother and sister.</p> <p>3. Evidence of testator’s failure to talk to some visitors and to make himself understood to their satisfaction, is insufficient to establish mental weakness or to base an opinion upon as to the strength of his intellect, inasmuch as he might have had personal reasons why he did not answer or make himself understood.</p> <p>4. In determining whether a physician exerted undue influence upon the testator in the preparation of his will, the court will consider all the circumstances, entering into the life of the deceased at or about the time of the acts complained of in so far as they relate to the duties and association with his physician. Evidence of his treatment and conduct, as well as that of the patient, is important in determining whether the testator was easily susceptible to flattery, persuasion or influence. The mere denial of the physician is not enough.</p>

<p>Appeal, No. 13, Jan. T., 1920, by defendant, from order of C. P. No. 4, Phila. Co., June T., 1918, No. 3420, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of Philadelphia, Germantown and Norristown Railroad Company v. Philadelphia & Reading Railway Company.</p> <p>Assumpsit to recover $11,976.75 for reimbursement on account of corporation excess profits tax assessed plaintiff by United States government.</p> <p>Defendant, by its affidavit of defense, claimed that plaintiff should not have paid any excess profits tax because it was not engaged in business, its road being operated by defendant under lease, and denied that under the terms of the lease, defendant was liable for the amount of the excess profits tax.</p> <p>The court entered judgment for want of a sufficient affidavit of defense for the reasons stated in the opinion by Audenried, P. J., filed September 26,1919, as follows:</p> <p>There can be no doubt that the plaintiff was bound to pay the income tax and the war excess profits taxes assessed against it for the year 1917 by the federal government. By clause third of the lease under which defendant occupies and operates the plaintiff’s property, the former agreed to pay all taxes and assessments upon the rent reserved by the latter in that instrument, for the payment of which taxes the plaintiff would otherwise be liable. The defendant failed to pay the war excess profits tax assessed against the plaintiff for the year 1917 and it has been paid by the plaintiff, which brings this action to secure reimbursement for that which it has thus expended. It was held by our Supreme Court in North Pennsylvania R. R. Co. v. Phila. & Reading Ry. Co., 249 Pa. 326, that a covenant by the lessee to pay all taxes imposed upon the rent payable under such a lease as that with which we are here concerned, obligated it to pay the United States income tax assessed against the lessors whose annual income consisted of the rental payable by the lessee. In Philadelphia City Passenger Ry. Co. v. Phila. Rapid Transit Co., 263 Pa. 561, it was decided that in this respect the war excess profits tax stood upon the same footing with the income tax on net profits. This case is ruled by this precedent. Further discussion of the subject is not necessary. Rule for judgment is affirmed.</p> <p>Defendant appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 7, Jan. T., 1920, by plaintiff, from order of C. P. Lackawanna Co., Oct. T., 1918, No. 1011, overruling plaintiff’s demurrer to respondents’ return to a writ of mandamus in the case of Commonwealth ex rel. Louis D. Vesneski v. James Reid et al., Members of Council of Dickson City Borough.</p> <p>Petition for mandamus against members of borough council commanding defendants to desist from interfering with the relator in the exercise of his rights and functions as burgess. Before Edwards, P. J.</p> <p>The respondents filed a return in which they held that the relator had been tried and adjudged guilty of neglect of duty, habitual drunkenness, and bribery, and had been removed from the office of burgess, to which the relator demurred. The court overruled the demurrer. Plaintiff appealed.</p> <p>Errors assigned were overruling demurrer to respondents’ return and the judgment of the court.</p>

<p>Appeal, No. 19, Jan. T., 1919, by Pennsylvania State Board of Censors, from judgment of C. P. No. 2, Philadelphia Co., Oct. T., 1919, No. 1389, directing the Board of Censors to approve a motion picture which it had declined to approve in the matter of The Goldwyn Distributing Corporation.</p> <p>Appeal from decision of State board of censors of moving pictures. Before Rogers, J.</p> <p>The court sustained the appeal and directed the board of censors to approve the picture as modified by certain eliminations as agreed to by the appellant. The State board of censors appealed.</p> <p>Errors assigned were the conclusions of law and fact and the order of the court.</p>

<p>Taxation — Corporations—Capital stock tax — Company incorporated for purpose of distilling liquors and selling same at wholesale — Corporation engaged in blending and selling whiskey at wholesale — Act of July IB, 1897, P. L. 292.</p> <p>1. A foreign corporation authorized “to manufacture, distill, brew, rectify, refine, blend and deal in beverages of all kinds, both alcoholic and nonalcoholic,” but which is solely engaged in the business of blending and selling whiskey at wholesale, is subject to a capital stock tax at the rate of ten mills upon the value of invested capital within the State under the Act of J uly 15, 1897, P. L. 292, See. 2, which imposes a tax of ten mills upon the capital stock of “companies organized and incorporated for the purpose of distilling liquors and selling the same at wholesale,” inasmuch as the test is not the business conducted, but whether the concern in question was “organized and incorporated for the purpose of distilling liquors and selling the same at wholesale.” Where such a company has elected its officers, adopted its by-laws, etc., it is organized within the meaning of the act.</p> <p>2. The tax imposed by the Act of July 15, 1897, P. L. 292, is not a tax on franchise value, but a tax on so much of the whole capital stock of such corporations as is represented by actual property invested in the State.</p> <p>3. A corporation may, in point of fact, be solely engaged in the pursuit of one business, yet, if possessed of charter powers to carry on another, the legislature has the right to classify it in the latter category; and, when this is plainly done, the course adopted is binding upon the courts.</p> <p>4. In some eases equity may control the apportionment of a tax, when duly assessed, but it cannot in any manner affect the classification of a corporation for purposes of taxation, where the relevant act clearly states that companies “shall constitute a separate class,” not according to a business actually conducted, but when “organized and incorporated” for a designated purpose.</p> <p>5. The Act of July 15, 1897, P. L. 292, is an independent statute, which without resort to other legislation, provides machinery to work out its purpose.</p>

<p>Criminal law — Perjury—Trial—Ground for continuance — Termination of proceeding in which alleged perjury was committed — ■ Failure to enter final judgment — Payment of jury fee.</p> <p>One indicted for perjury is not entitled to a continuance merely because of a failure to enter final judgment in the civil proceedings in which the alleged perjury was committed, where it appears that the judgment had not been entered because of failure to pay the jury fee.</p>

<p>Road law — Damages—Opening street — Improvement within lines of unopened street — Improvements made after approval of plans locating street — Act of January 2,1871, P. L. 1556.</p> <p>1. At common law damages cannot be assessed upon tbe opening of a street on account of improvements made within tbe lines of a located but unopened street after approval by tbe municipal authorities of tbe plans locating the street.</p> <p>2. Tbe legislature by the Act of January 2, 1871, P. L. 1556, ratified and confirmed all tbe streets laid out in tbe City of Harrisburg, surveyed pursuant to tbe authority conferred by the Act of April 9, 1869, except, inter alia, so much thereof as extended from Front street to low watermark of tbe Susquehanna river from State to Maelay streets, and provided that before it could be opened between State and Maelay streets of tbe uniform width of tbe other portions already laid out to low watermark, a plan was to be executed and recorded witbin two years after tbe passage of tbe Act of 1871. It was also provided that property owners were to receive no compensation for buildings erected on any street of tbe city after it was designated and laid out by tbe authorities. Tbe city failed to record a plan showing Front street, between State and Maelay streets, as extending to low watermark. Held, that Front street as contemplated was never fully laid out between State and Maelay streets, and that the city lost the benefit of the statute and tbe rule of tbe common law relieving it from paying damages for buildings erected within tbe lines of a located but unopened street, after approval of tbe plans locating tbe street.</p>

<p>Appeal, No. 330, Jan. T., 1919, by Samuel Coles, from judgment of O. & T. Philadelphia Co., March T., 1918, No. 345, on verdict of guilty of murder of the first degree in the case of Commonwealth v. Samuel Coles.</p> <p>Indictment for murder. Before Monaghan, J.</p> <p>Verdict of guilty of murder of the first degree upon which sentence of death was passed. Defendant appealed.</p> <p>Errors assigned were rulings on evidence and refusal of a new trial.</p>

<p>Appeal, No. 45, Oct. T., 1919, by Ellen K. Watson, H. C. Shaw and George E. Shaw, from judgment of Superior Court reversing order and judgment of the Court of Q. S. of Allegheny Co., Nov. Sessions, 1914, No. 2, and dismissing petition for the appointment of viewers to ascertain and assess damages caused by the construction and improvement of State Highway Route No. 72.</p> <p>Petition for appointment of viewers to ascertain and assess damages to abutting property occasioned by a change and elevation of the grade of the State highway designated as State Highway Route No. 72, extending from Pittsburgh to Butler.</p> <p>The viewers assessed damages in each of the cases against the Commonwealth awarding $2,000 in one case and $1,500 in the other case.</p> <p>The Superior Court reversed the order of the lower court and dismissed the petition. See 71 Pa. Superior Ct. 85. The petitioners appealed.</p> <p>Errors assigned were (1) the order of the Superior Court, (2-8) sustaining assignments of error to the judgment of lower court.</p>

Appeal, No. 3, May T., 1919, by defendant, from judgment of C. P. Dauphin Co., Commonwealth Docket, 1915, No. 41, in favor of the plaintiff, in. the case of Commonwealth of Pennsylvania v. The Welsh Mountain Mining & Kaolin Manufacturing Company. Appeal from the settlement of capital stock tax by the auditor general and State treasurer.

<p>Appeal, No. 5, May T., 1919, by plaintiffs, from decree of C. P. Dauphin Co., in equity, No. 598, Equity Docket, dismissing plaintiffs’ bill in the case of Marino Acri et al., members of Lodge San Michele Di Serrastretta, No. 329, of Steelton, Pennsylvania, v. Giuseppe Bruscia et al., the Lodge of San Michele Di Serrastretta, No. 329, Steelton, Pennsylvania, and Giuseppe Di Silvestro et al., members of the General Executive Council Order of Sons of Italy.</p> <p>Bill in equity for an injunction. Before McCarrell, J.</p> <p>The hill alleged that plaintiffs had been illegally expelled from a fraternal beneficial organization and its prayer was for an injunction, for their reinstatement and other relief.</p> <p>The court dismissed the bill. Plaintiffs appealed.</p> <p>Errors assigned were the findings and conclusions, and the decree of the court.</p>

<p>Appeal, No. 332, Jan. T., 1918, by plaintiff, from judgment of C. P. Lancaster Co., Aug. T., 1917, No. 77, on verdict for defendant in the case of William J. Coulter, Administrator d. b. n. c. t. a. of Mary A. Flury, deceased, v. Harry B. Rowe, Executor of Julia J. Rowe, deceased.</p> <p>Assumpsit to recover the amount of a certificate of deposit claimed as property of plaintiff’s decedent. Before Hassler, J.</p> <p>The court directed a verdict for defendant. Yerdict and judgment for defendant. Plaintiff appealed.</p> <p>Errors assigned were answers to points, the instructions to the jury and rulings on evidence.</p>

<p>Appeals — Attorneys-at-law—Order refusing to disbar — Quashing appeal — Act of April 14, 1834, Sec. 74, P. L. 354</p> <p>No appeal lies from an order discharging a rule to strike the name of an attorney-at-law from the record of attorneys, under the Act of April 14, 1834, P. L. 354. If such an appeal is taken, it will he quashed.</p>

<p>Attorney-at-law — Action for compensation for services — Charge —Review.</p> <p>In an action by an attorney-at-law to recover for professional services, a judgment on a verdict in his favor will be sustained, where the employment is not denied, the only question being the value of the services, and the only complaint that the charge of the court as a whole was inadequate and unfair, and the appellate court finds that this complaint is not well founded.</p>

<p>Appeal, No. 76, Oct. T., 1919, by George Brown, defendant, from judgment of O. P. Westmoreland Co., Feb. T., 1914, No. 425, on verdict for plaintiffs in case of Julia B. Glass et al. v. John Seger, George Brown et al.</p> <p>Ejectment for 400 acres of timber land in Ligonier Township. Before McConnell, P. J.</p> <p>Verdict and judgment for plaintiffs. Defendant Brown appealed.</p> <p>Errors assigned were various instructions, quoting them.</p>

Appeal, No. 121, Oct. T., 1919, by defendant, from judgment of O. P. Westmoreland Co., Aug. T., 1918, No. 126, for plaintiff on case stated in case of W. J. Weister and J. H. Weister v. W. L. Young. Case stated to determine the marketable title to real estate.

<p>Appeal, No. 13, Oct. T., 1918, by plaintiff, from judgment of C. P. Westmoreland Co., Feb. T., 1917, No. 645, for defendant on case stated in suit of Westmoreland County v. A. D. Miller, County Treasurer.</p> <p>Case stated to determine right of defendant to commissions on mercantile and other taxes collected by him for the Commonwealth. Before Copeland, P. J.</p> <p>From the record it appeared that defendant was treasurer of Westmoreland County, which has a population of more than 150,000 inhabitants, and that he received a salary from the county. He claimed to recover commissions on taxes collected for the Commonwealth. The taxes on which he claimed commissions were as follows: Retail mercantile license tax, wholesale mercantile license tax, retail liquor license tax, brewers’ license tax, distillers’ license tax, billiards, pool tables, bowling alleys, shooting gallery, shuffle board, etc., license tax; brokers, agents, factors, pawnbrokers, etc., license tax; peddlers’ license tax; theatre, circus, museum, menagerie, moving picture, etc., license tax; eating house, restaurant, cafe, etc., license tax, and a resident hunters’ license tax.</p> <p>The court entered judgment for defendant for $960.60 on the case stated. The-county appealed.</p> <p>Error assigned was in entering judgment for defendant on the case stated.</p>

<p>Negligence — Damages—Death — Administrator — Person dying without widow or hin.</p> <p>Where a person is negligently killed by the aet of another and leaves neither widow, child nor parents, his administrator has no right of action to recover damages for his death.</p>

<p>Workmen’s compensation — Employee of corporation — Salesman —Nonsalaried director — Act of June 2,1915, P. L. 786.</p> <p>1. A salesman of a corporation, on a weekly wage, who is also a director of the corporation, but without salary, wages, or income as such, is an employee of the corporation within the meaning of the Workmen’s Compensation Act, and if he is killed in the course of his employment, his widow is entitled to compensation for his death.</p> <p>2. Not decided whether a higher executive officer of a corporation may claim an award under the compensation act.</p>

Appeal, No. 184, Oct. T., 1918, by Clara Belle Fleming, from decree of O. C. Allegheny Co., March T., 1917, No. 338, setting aside will and refusing an issue devisavit vel non in Estate of Joseph K. Fleming, deceased. Appeal from register of wills. Before Trimble, J. The court entered a decree setting aside the will and refusing an issue. Clara Belle Fleming appealed. Error assigned was the decree of the court.

<p>Municipalities — Municipal indebtedness — Philadelphia—Statutes —Repeal—Certificate of official.</p> <p>1. The legislature may at any time modify or abolish the powers vested by it in the municipalities of the State.</p> <p>2. Unfinished proceedings of a municipality ordinarily fall with the repeal of the laws under which they were begun.</p> <p>3. But if the repealing act also substantially reenacts the repealed laws, pending proceedings may he continued, subject to such modifications as the new act provides.</p> <p>4. Where the legislature declares that it shall be unlawful thereafter for a municipality to do a given thing, it cannot thereafter he done, no matter how far the proceedings leading up thereto had advanced when the act went into effect.</p> <p>5. Where the certificate of an official is made a condition precedent to the validity of a future act of the municipality, that act cannot thereafter he legally performed, though the prior proceedings, to which the certificate relates had theretofore been legally done.</p> <p>6. In that event, however, the municipality may, by pupplementary ordinances, reenact the prior proceedings upon the giving of the proper certificate.</p> <p>Constitutional law — Municipal debt — Delegation of power — Local and special laws — Obligation of contract — Act of June 25,1919.</p> <p>7. Section 8 of Article XVII of the Act of June 25, 1919, is not unconstitutional as a local or special law, nor as violating the obligation of contracts, nor as an unlawful delegation of power, nor as a violation of the amendment to article IX, section 9, relating to incurring indebtedness by the City of Philadelphia.</p>

<p>Appeal, No. 4, May T., 1920, by plaintiff, from order of C. P. Dauphin Co., 35 Commonwealth Docket 1919, refusing mandamus in case of Henry G. Wasson v. Cyrus E. Woods, Secretary of the Commonwealth of Pennsylvania.</p> <p>Petition for mandamus to compel certification of name on ballot.</p> <p>Kunkel, P. J., filed the following opinion:</p> <p>This is a proceeding to compel the secretary of the Commonwealth to certify the name of the plaintiff for printing on the official election ballot as a candidate for the office of judge in Allegheny County.</p> <p>At the primary election there were seven candidates for five vacancies in that office. Six of the candidates, among whom was the plaintiff, received sufficient votes as ascertained by the method prescribed by Section 13, of the Act of July 24, 1913, P. L. 1001, amended by the Act of July 8,1919, to constitute them sole nominees for the office at the November election,, but as there were only five vacancies to be filled, the secretary of the Commonwealth proposed to certify the names of the five receiving the highest number of votes, in accordance with the direction of the act. To this the plaintiff objects, claiming his name is entitled to be certified together with, the others. The contemplated act of the secretary is entirely in accordance with the provisions of the amendatory Act of 1919, and if the objections to its constitutionality are not sustained, this proceeding must be dismissed.</p> <p>The part of the amendment in controversy assailed as unconstitutional declares: “And provided further, that whenever, at any primary nominations are to be made of candidates to fill two or more vacancies in any appellate or other court of record, composed of two or more judges, if any one or more of such candidates shall receive a number of votes greater than one-half of the total number of votes cast for such office at such primary, then, and in such event, each of such candidates shall be the sole nominee for one of the respective vacancies in such office.</p> <p>“One-half of the total number of votes cast for such office at such primary shall be ascertained by taking the total number of votes cast for all the candidates for such office and dividing such total vote of all such candidates by the number of persons each voter is entitled to vote for at such primary for such office, and this quotient shall be divided by two, and any candidate who receives a greater number of votes than the result obtained by the above method of ascertainment shall have met the requirement hereinbefore provided.</p> <p>“If it appears that less than the whole number of candidates for such office to be elected at the ensuing election have received the required number of votes hereinbefore specified, then, and in such event, he or they who have received that number of votes at the primary shall be the sole nominee or nominees for that number of vacancies in such office; and his name or their names and none other shall be printed as candidates for that number of vacancies in and for such office, upon the official ballots for use at such succeeding election.</p> <p>“If it appear that more than the whole number of candidates for such office to be elected at the ensuing election have received the required number of votes hereinbefore specified, then the candidates equal to the number of vacancies in such office who received the highest number of votes shall be the sole nominees for such office.</p> <p>“The number of candidates for any remaining vacancy or vacancies in such office, for which the primary has declared no sole nominee or nominees as herein just provided, and the manner of their election, shall remain as provided by existing law. In the event of one or more candidates being sole nominees, as above provided, there shall be two groups of names of candidates on the ballots, the names of such nominees being in one group, and the names of other candidates in the other.”</p> <p>It is contended that the method of determining sole nominees and limiting the number of candidates as sole nominees thus provided, is invalid, as violating Section 5, Article I, of the Constitution, which declares that elections shall be free and equal, and also section 7, article VIII, relating to the uniformity of elections. In Winston v. Moore, 244 Pa. 447, it was held that the power to regulate elections, to frame an election ballot, to prescribe the conditions upon which the names of candidates may appear on the official ballot, the method by which a candidate may be voted for, and all like cognate provisions, were legislative matters over which the courts have no control, unless thereby the right of franchise be denied. Accordingly in that case it was held that the provisions of the Act of 1913 for sole nominees on the official ballot was not an infringement of the constitutional direction. In the present case fhe objection is made to the method provided for the ascertainment of sole nominees, but that is one of the very subjects that comes within the legislative control. As said in Winston v. Moore, “The Constitution says nothing about nominations, or how candidates shall be chosen, or how many names shall be printed on the ballot. It furnishes no rule by which to accurately determine what the legislature may or may not do in the enactment of laws relating to such, details in the exercise of the elective franchise,” etc. But it is not necessary to quote further. It is sufficient to say that applying the tests laid down in that case, the amending Act of 1919 successfully resists the constitutional assault. But the plaintiff answers that the validity of the Act of 1913 was sustained in that case because its provisions did not conflict with the freedom and equality of elections so far as the elector was concerned and the question is still open whether the amended Act of 1919 is constitutional so far as a candidate is concerned. We see no difference in the applicability of Winston v. Moore, whether a citizen be an elector or a candidate. There is no greater constitutional guarantee respecting elections to a citizen as a candidate than to him as an elector. When he is a candidate he is as much subject to the power of the legislature to regulate the form of the ballot, to fix the number of names to be placed thereon and the method of election, as he is when he is an elector.</p> <p>It must be conceded that it is difficult to prescribe a method for making sole nominees. Under the original Act of 1913, the mode of determining a sole nominee seemed to be based on a majority of those who voted at the election, but when it came to adopting a method for determining sole nominees for two or more vacancies to be filled in the office of judge, many difficulties presented themselves. None of the candidates would be voted for to fill any particular one of the vacancies and it was impossible to base the method on the theory of the majority of the votes or ballots cast. However that may be, it is clear that the provision of the amending Act of 1919 is an election regulation, and has been left by the Constitution to the legislature to prescribe. We find every reason for sustaining its constitutionality in Winston v. Moore. It may be observed that the placing of plaintiff’s name on the official ballot with the other nominees for the five vacancies would eliminate them all as sole nominees and thus the provision of the act would he nullified.</p> <p>The suggestion that the provision for sole nominees in the act virtually changes the time of the election fixed by the Constitution is without weight. Although no name of a competitor will appear on the official ballot, nevertheless there will be an election. The elector still has the right of selection between such sole nominee and any other person he may desire to vote for by inserting the name of that person in the blank space on the ballot left for that purpose.</p> <p>So also as to the objection to the sufficiency of the title of the act. It purports to amend certain sections of the Act of 1913, making, however, no reference to the amendment of 1915. We fail to see how the title is de-, fective on that account. It gives notice that it amends the Act of 1913. The original Act of 1913 with the amendment of 1915 constituted the Act of 1913 as it stood when the amendment of 1919 was passed. The reference to it in the title could not mislead.</p> <p>And now, October 13, 1919, after hearing and upon due consideration the writ of peremptory mandamus is refused and the proceeding is dismissed at the cost of the plaintiff.</p> <p>The court dismissed the .petition. The petitioner appealed.</p> <p>Error assigned was order dismissing the petition.</p>

<p>Appeal, No. 333, Jan. T., 1919, by respondents, from order of C. P. No. 2, Pbila. Co., Dec. T., 1918, No. 225, awarding peremptory mandamus in case of George Albert Drovin v. Lebigb Coal & Navigation Company, Samuel D. Warriner, President, and Henry H. Pease, Secretary.</p> <p>Petition for mandamus. Before Rogers, J.</p> <p>Tbe court allowed tbe mandamus. Respondents appealed.</p> <p>Error assigned was the order of the court.</p>

Appeal, No. 316, Jan. T., 1919, by plaintiffs, from judgment of C. P. Cumberland Co., Oct. T., 1917, No. 345, for defendant on trial by the court without a jury, in case of Harry Hertzler and W. H. Crider, for use of Harry Hertzler and David S. Wagner v. Federal Equipment Company. Assumpsit for breach of contract. Before Sadler, P. J. The court entered judgment for defendant. Plaintiffs appealed. Error assigned was in entering judgment for defendant.

<p>Practice, Supreme Court — Assignments of error — Defective assignments — Quashing appeal.</p> <p>1. An appeal from an order of the Superior Court affirming an order of the Public Service Commission, will be quashed, where none of the assignments disclose what was the order of the commission.</p> <p>2. Assignments of error are an essential part of the pleadings in an appellate court, and as such, should be so complete in themselves as not to require reference to other parts of the record.</p>

<p>Appeal, No. 68, Jan. T., 1919, by defendant, from judgment of C. P. Erie Co., Sept. T., 1917, No. 151, on verdict for plaintiff in case of Frederick W. Albrecht v. City of Erie.</p> <p>Trespass to recover damages for personal injuries. Before Whittelsey, J.</p> <p>Verdict and judgment for plaintiff for $2,317.50. Defendant appealed.</p> <p>Errors assigned were (1, 2) in refusing to permit the cross-examination of the plaintiff.</p>

<p>Taxation — Mercantile tax — Corporations—Manufacturing corporations — Oil refining companies — Distribution stations — Tax on sales and deliveries at stations — Classification—Act of May 2,1899, P. L. 181¡..</p> <p>1. Where an oil refining company maintains distribution stations at various points, apart from its main plant, and from these stations sells and delivers its own products, and also products manufactured by others, it is liable under the Act of May 2, 1899, P. L. 184, for the mercantile tax on the “whole value, gross, of business transacted annually” at such stations, irrespective of the fact that orders for certain of the goods there delivered did not originate at the stations but came through its central selling force at the main plant.</p> <p>2. In such a case the company’s stations are not mere storage houses, but to a certain extent at least, are sales stores.</p> <p>3. In arranging a scheme of classification as a basis for taxation, the legislature may properly consider the “purpose” back of a given state of facts, and make the existence of such purpose the controlling element in determining tax liability.</p> <p>Mr. Chief Justice Brown filed a dissenting opinion in which Mr. Justice Walling joined.</p>

<p>Practice, Supreme Court — Appeals—Harmless error — Findings of fact.</p> <p>1. The court will not reverse the findings of fact of the court below unless clear error is shown.</p> <p>Divorce — Foreign divorce. — Recognition of decree — Appearance.</p> <p>2. An appellant cannot successfully object to a ruling which did him no harm.</p> <p>3. A divorce granted in another state, where the parties never resided together, and for causes not arising therein, is of no validity here, unless the respondent appeared to the action, or in some way recognized the alleged divorce.</p> <p>Practice, Equity —■ Replication. — Pleadings —• Trial — Husband and wife — Desertion—Abuse of discretion — Appeal—Acts of May 28, 1907, P. L. 227; April 27, 1909, P. L. 182, and July 21, 1918, P. L. 867.</p> <p>4. When a case is heard upon a bill and answer without a replication, all the material averments of the answer will be taken as true, whether responsive to the bill or new matter in avoidance thereof.</p> <p>5. Under such circumstances the court will not look beyond the pleadings.</p> <p>6. But this principle does not apply where the defendant proceeds to trial without ruling plaintiff to file a replication, as provided by the 46th Equity Buie.</p> <p>7. It is not improper to allow a replication to be filed nunc pro tune, where without calling attention to the fact that none had been filed defendant proceeded with the trial exactly as if it had been, and by his requests asked the court to decide the case upon the evidence produced.</p> <p>8. Under such circumstances it is not error to refuse to reopen the case after replication filed nunc pro tune, where defendant does not allege he was misled, and gives no reason why the case should be reopened.</p> <p>9. An application to reopen a case is addressed to the sound discretion of the court, and its decision will not be reversed except for clear error.</p>

<p>Practice, Supreme Court — Appeals—Statement of question involved — Findings of fact — Transfer of property — Fraud—Evidence.</p> <p>1. In considering an appeal the Supreme Court will not go beyond the points raised by the statement of the questions involved.</p> <p>2. A statement of the question involved “Can a husband transfer his personal property in payment of his debts, regardless of coverture?” does not properly raise the question whether or not he did so.</p> <p>3. This court will not reverse the findings of fact of the court below unless clear error is shown.</p> <p>4. Nor will it reverse a finding that an alleged transfer of property was fraudulent, where the only testimony to sustain it was by a 'hostile witness, whero writings relied upon are not produced and their absence is not explained, and the case is full of suspicious circumstances which tend to show the fraudulent character of the transfer.</p> <p>5. A party to a suit cannot be heard to complain regarding a decree in personam against a third party.</p>

<p>Mines and mining — Surface support — Measure of damages— Punitive damages — Witnesses—Experts—Opinion of nonexperts— Harmless error — Appeals.</p> <p>1. In an action against a mining company to recover damages for injuries caused by failure to leave sufficient surface support, with resulting failure of water supply, the damages are measured by the difference between the market value of the land before and after the injury.</p> <p>2. In such a case where the court in its charge indicates the proper measure, a judgment for plaintiff will not be reversed, because witnesses were asked to give their opinion in regard to the “value” or “worth” of the land, before and after the injury, where it appears from the questions put to the witnesses that the terms were used in the sense of market values.</p> <p>3. Nor can defendant complain that the fixing of the time of the injuries from 1912 to 1914 was reversible error, because there was some evidence of a diminution of a spring in 1910 where it appears that the robbing of the mine of surface support, and the material destruction of the water supply, occurred during the period from 1912 to 1914, and that the cage was tried mainly on this theory.</p> <p>4. Anyone who is aware of the relative value of the property may testify as to damages, although no expert; but the appellate court will not reverse because the witnesses’ qualifications were not fully brought out where defendant was not denied opportunity to cross-examine before the testimony was given.</p> <p>5. Failure of the trial judge to charge in particular language as, to market value, in absence of request by counsel at the trial, is no ground for reversal, where the charge is not incorrect.</p> <p>6. Assignments of error to the action of the trial judge in permitting the jury to find punitive damages, will not be considered where the verdict of the jury shows that they did not include such damages.</p> <p>7. Where a claim for punitive damages for failure to afford surface support, is based on the fact that defendant had, on other lands in the neighborhood, caused surface subsidence, the plaintiff must further show such similarity in the condition of the mines, as leads reasonably to the conclusion that the result of an excavation in one, would be the same as a similar excavation in another.</p> <p>Evidence — Failure to produce evidence within control of a party.</p> <p>8. Failure to produce evidence within the control of a party, and which it would naturally he of his interest to produce, or failure to give satisfactory reason for its omission justifies an inference that the evidence, if produced, would have been unfavorable.</p> <p>Evidence — Rebuttal—Order of proof — Discretion.</p> <p>9. Evidence in surrebuttal will be limited to explain matters requiring explanation and to answer new matter brought out by plaintiff in rebuttal and which defendant could not have foreseen or provided for in his defense. This, like other matters connected with the conduct of the trial, is largely within the discretion of the trial court.</p> <p>Practice, O. P. — Improper remarles of counsel — Trial.</p> <p>10. In an action for damages against a mining company, it is reversible error for the trial court to refuse a motion to withdraw a juror, after counsel for plaintiff in his final argument to the jury has referred to the defendant as an “octopus” and this “sneaking, hiding, skulking coal company.” Such language is not justified because the defendant throughout the trial failed persistently to produce certain maps and records which it had been subpoenaed to produce.</p>

<p>Appeal, No. 107, Oct. T., 1919, by plaintiffs, from order of C. P. Cambria Co., June T., 1916, No. 139, opening judgment and setting aside writ of possession in case of William E. Thomas, Trustee, and Harry von Lunen Hager et al. v. M. J. Boyle and Nemo Theatre Company, Intervening.</p> <p>Eules to open judgment and to set aside writ of habere facias possessionem and for restitution.</p> <p>The court made the rules absolute. Plaintiff appealed.</p> <p>Error assigned was the order of the court.</p>

<p>Appeal, No. 335, Jan. T., 1919, by defendant, from judgment of O. & T. Erie Co., Feb. T., 1919, No. 40, on verdict of guilty of murder of the first degree in case of Commonwealth v. William Johnson et al.</p> <p>Indictment for murder. Before Bossiter, P. J.</p> <p>Verdict of guilty of murder of the first degree upon which judgment of sentence was passed. Defendant appealed.</p> <p>Errors assigned were various rulings on evidence and instructions, sufficiently set forth in the opinion of the court.</p>

Appeal, No. 22, Oct. T., 1919, by defendant, from order of C. P. Somerset Co., Dec. T., 1917, No. 111, making absolute rule for subrogation in case of Benjamin H. Mayhugh to use of State Workmen’s Insurance Fund v. Somerset Telephone Company. Rule for subrogation. Before Baldwin, P. J., specially presiding. The court made the rule absolute. Defendant appealed. Error assigned was the order of the court.

<p>Appeal, No. 85, Oct. T., 1919, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1917, No. 111, on verdict for plaintiff in case of Benjamin H. Mayhugh to use of State Workmen’s Insurance Fund v. Somerset Telephone Company.</p> <p>Trespass to recover damages for personal injuries. Before Baldwin, P. J., specially presiding.</p> <p>Verdict and judgment for plaintiff for $4,812. Defendant appealed.</p> <p>Error assigned was refusal of binding instructions for defendant.</p>

<p>Appeal, No. 80, Oct. T., 1919, by plaintiffs, from judgment of C. P. Venango Co., Aug. T., 1916, No. 55, on verdict for defendant in case of Margaret Rollo, widow of Charles A. Rollo, deceased, and John M. Sykes and Robert F. Glenn, executors of last will and testament of Charles A. Rollo, deceased, v. Mazie E. Bell.</p> <p>Ejectment for land in the City of Franklin. Before Criswell, P. J.</p> <p>Verdict and judgment for defendant. Plaintiff appealed.</p> <p>Error assigned was in giving binding instructions for defendant.</p>

<p>Appeal, No. 88, Oct. T., 1919, by defendant, from order of C. P. Armstrong Co., March T., 1918, No. 150, dismissing appeal from decision of Workmen’s Compensation Board in case of Mary Decker v. Mohawk Mining Company.</p> <p>Appeal from decision of Workmen’s Compensation Board affirming award of referee.</p> <p>The court dismissed the appeal. Defendant appealed.</p> <p>Error assigned, was the order of the court.</p>

<p>Workmen's compensation — Form of proceedings — Answer signed and sworn to by attorney — Bules and regulations of board — Appeals — Question not raised below.</p> <p>1. Under the Workmen’s Compensation Act the Workmen’s Compensation Board is chargeable with the duty of prescribing the form of the answer in proceedings pending before it.</p> <p>2. The courts cannot declare insufficient an answer signed and sworn to by an attorney of the party answering, if the board accepts it as satisfactory.</p> <p>3. A party cannot be heard to challenge on appeal the form of an answer, unless he specifically asserted at or before the trial that the answer was not according to the rules and regulations of the board, and asked a ruling thereon.</p>

<p>Practice, Supreme Court — Appeals—Findings of fact — Orphans’ court — Evidence—Witnesses—Competency—Decedents’ estates.</p> <p>1. Under Section 2 of the Act of June 16, 1836, P. L. 683, appeals from the orphans’ court must be heard and determined according to the justice and equity of the particular case.</p> <p>2. Specific findings of fact by that court will not be reversed unless there is no evidence to support them, or they are clearly erroneous and to uphold them would work a manifest injustice.</p> <p>3. This is so even though upon a reading of the evidence an opposite conclusion would seem correct.</p> <p>4. This rule, however, does not apply where the findings are only inferences or deductions from other facts, or conclusions from reasoning.</p> <p>5. Distributees are not competent witnesses to prove gifts by decedent to themselves, but are competent to prove his gifts to other distributees.</p> <p>6. In view of the opportunities for collusion growing thereout, the court below is not required to accept such testimony as verity.</p> <p>Evidence — Ownership of personal property — Presumption—Gift —Burden of proof.</p> <p>7. As between people who live together, ownership of the place raises no presumption that the personal property therein belongs to one rather than to the other.</p> <p>8. He who pays for an article is presumed to be the owner, and one who alleges a gift thereof has the burden of proving it.</p> <p>9. The quantum of evidence to prove a gift depends on the circumstances of the particular case. It need not be so clear between husband and wife and parent and child, as it would be required to be between strangers.</p> <p>Executors and administrators — Advice of counsel — Notes.</p> <p>10. Where in good faith and under advice of counsel an administratrix surrenders to the payee notes found in decedent’s possession, because of a belief they have been paid in full to decedent, the proper course is to suspend the question of surcharge and direct that suit be brought upon the notes.</p> <p>Executors and administrators — Commissions — Unconverted assets.</p> <p>11. Commissions will not be allowed on unconverted assets.</p> <p>12. If accountant has had extra trouble he should ask additional compensation therefor, and not seek to obtain it by way of a percentage on unconverted assets.</p>

<p>Appeal, No. 82, Oct. T., 1919, by Employers’ Liability Assurance Corporation, Ltd., from order of C. P. Westmoreland Co., Feb. T., 1919, No. 457, dismissing appeal from decision of Workmen’s Compensation Board in case of Mary E. Tarr v. Hecla Coal & Coke Company, defendant, and the Employers’ Liability Assurance Corporation, Ltd., intervening defendant.</p> <p>Appeal from decision of Workmen’s Compensation Board affirming award of referee.</p> <p>The court dismissed the appeal.</p> <p>The Employers’ Liability Assurance Corporation, Ltd., intervening defendant, appealed.</p> <p>Error assigned was order dismissing the appeal.</p>

<p>Wills — Testamentary character of paper — Evidence.</p> <p>1. A paper in the following form is not testamentary in character: “I want you, E. A. Kerr, to look after my property and if I don’t sell it, I will sign it over to you for taking care of me.” Such a paper does not indicate any intention or purpose on the part of the maker to thereby make a disposition of his property after his death.</p> <p>2. As the paper is absolutely free from ambiguity on its face, extrinsic evidence as to the maker’s intention, is inadmissible.</p>

<p>Contract — Rescission—Words and phrases — “A car or two” — ■ Good faith — Warranty—Essence of contract — Fraud—Damage or injury.</p> <p>1. Where a purchaser of a supply of oil for a year to be delivered in monthly installments on orders, stipulates that he will not give the first order until he has used up “a car or two coming from another source,” and the seller agrees that the shipments are “to begin after you have taken out what oil is yet due you on previous contract,” the seller cannot, after the purchaser delays for two months before sending his first order, and after the price of oil has risen, rescind the contract because the purchaser used seven cars coming to him from other sources. The general expression “a car or two” signifies an indefinite small number and may include as many as Seven.</p> <p>2. Where indefinite words are used and the naming of a small quantity is regarded not as in the nature of a warranty but only as an estimate of the probable amount, good faith is all that is required of the party making it.</p> <p>3. To justify the rescission of a contract because of falsehood, it must have been relied upon by the complaining party to his detriment.</p>

<p>Foreign attachment — Dissolution—Averments of Jurisdictional facts — Statement—Nonresidence—Foreign corporation — Property in county — Affidavit to show cause of action.</p> <p>1. It is error to dissolve a foreign attachment, quash the writ and strike off the judgment, on motion of the garnishee, on the ground that the statement did not contain averments as to non-residence and property of defendant in county, as required in an affidavit of cause of action, where it appears that no affidavit of cause of action had been called for, that the statement averred that the defendant was a New York corporation, and that the sheriff’s return showed property of defendant in the county.</p> <p>2. It is not required that plaintiff’s statement shall set out all the jurisdictional facts; this may be required on a rule to show cause of action, but the absence of such facts from the statement is not alone sufficient to prevent judgment for want of a sufficient affidavit of defense, where the existence of such facts is not denied.</p>

<p>Appeal, No. 337, Jan. T., 1919, by defendant, Irvin G. Gray, from judgment of Superior Court, Oct. T., 1919, No. 106, affirming judgment of Q. S. Centre Co., Dec. T., 1918, No. 9, on verdict of guilty in case of Commonwealth v. Irvin G. Gray, Clyde G. Gray and Geo. F. Gray.</p> <p>Indictment for larceny.</p> <p>Appeal from Superior Court.</p> <p>The Superior Court affirmed the judgment of the court of quarter sessions. Irvin G. Gray appealed.</p> <p>Error assigned was in affirming judgment of the quarter sessions.</p>

<p>Criminal law — Larceny—Accessory after the fact — Charge Harmful error — Appeal.</p> <p>1. An accessory after the fact is not a principal in the commission of a crime.</p> <p>2. On an indictment for larceny only it is error to charge the jury that the defendant may be convicted if he was an accessory after the fact.</p> <p>3. When an error has been committed which may have been harmful the sentence must be reversed.</p>

<p>Railroads — Construction of embanlcment in river — Overflow of lands — Damages—Witnesses—Evidence—Case for jury.</p> <p>1. Where a railroad company encroaches upon the bed of a river, and constructs therein an embankment with retaining wall, for the purpose of widening its tracks, and as a result land on the opposite side of the river is overflowed at times by high water, and permanently injured, where it had not previously suffered at such times, the railroad company is liable in damages for the injuries sustained</p> <p>2. In such a case where the plaintiff himself, four of his neighbors familiar with the land, and two experts testify to the permanent injuries to the land by the washing out of the soil, as .the result of the construction of the embankment, the case is for the jury, and a judgment and a verdict for plaintiff will be sustained; and this is the case although an expert called by the railroad company testifies that from a scientific standpoint the embankment could not have caused the injuries.</p> <p>3. The measure of damages in such a case, the injury being permanent, is to be ascertained by determining the market value of the land before the interference began and the market value after the interference, and taking the difference between them. Whether the injury is permanent, is a question of law for the court.</p> <p>4. If the injury is caused by erecting a structure or making a use of land which the defendant has a right to continue, the injury is regarded as committed once for all, and action must be brought to recover the entire damage, past and future.</p>

Appeal, No. 61, Oct. T., 1919, by defendants, from order of C. P. Lawrence Co., June T., 1917, No. 57, making absolute rule for judgment for want ,of a sufficient affidavit of defense in case of Kirk, Hutton & Company, formerly Smith, Hutton & Kirk Company, v. Anna D. Van Horn, Administratrix of tbe Estate of George H. Van Horn, deceased, Anna D. Van Horn, widow of George A. Van Horn, Walter Van Horn, Minnie Skidmore, Lawrence Savings & Trust Company, Guardian of Emil LeRoy…

<p>Negligence — Hosier and servant — Evidence — Eall of girdei — ■ Bes ipsa loquitur — Burden of proof.</p> <p>In an action by an employee against Ms employer to recover damages resulting from the fall of a girder, a verdict and judgment for plaintiff cannot be sustained where the plaintiff offers no evidence as to the cause of the fall of the girder, nor proof of any defect in the place, tools or appliances, or of any other negligence of the defendant. The mere fall of the girder is not evidence of negligence, and the rule res ipsa loquitur does not apply.</p>

<p>Appeal, No. 117, Oct. T., 1919, by defendant, from judgment of C. P. Beaver Co., Sept. T., 1917, No. 178, on verdict for plaintiff in case of Daniel M. Eeisinger v. William A. McConnell.</p> <p>Trespass for personal injuries. Before Bell, P. J., specially presiding.</p> <p>Verdict and judgment for plaintiff for $3,000. Defendant appealed.</p> <p>Error assigned, among others, was in refusing judgment for defendant n. o. v.</p>

Appeal, No. 123, Oct. T., 1919, by plaintiff, from judgment of O. P. Beaver Co., Sept. T., 1914, No. 180, for defendant on case tried by the court without a jury in suit of Pittsburgh Crucible Steel Co. v. Pennsylvania Company, operating the Cleveland & Pittsburgh Railroad. Assumpsit on a written contract. By agreement the case was tried by Baldwin, P. J., without a jury. Judgment was entered for defendant. Plaintiff appealed. Error assigned was the judgment of the court.

<p>Appeal, No. 84, Oct. T., 1919, by defendant, from decree of C. P. Cambria Co., Dec. T., 1917, No. 1, on bill in equity in case of Lenox Coal Co. v. Duncan-Spangler Coal Co.</p> <p>Bill in equity for an injunction. Before O’Connor, J.</p> <p>The court awarded an injunction. Defendant appealed.</p> <p>Error assigned was the decree of the court.</p>

<p>Bankruptcy — Federal Act — Unlawful preference — Opinion witness — Belief of creditor as to solvency — Suspicion.</p> <p>1. The provision in the Federal Bankrupt Act that if a creditor of a bankrupt “should have reasonable cause to believe” that a transfer of property to himself would effect a preference, such transfer shall be voidable, does not demand actual knowledge or actual belief, nor does a mere suspicion in the creditor’s mind charge him with having “reasonable cause.” In determining whether the creditor had reasonable cause to believe that a preference was intended, facts which are sufficient to put an ordinarily prudent man upon inquiry charge the creditor with all the knowledge he could have acquired by the exercise of reasonable diligence.</p> <p>2. In such a ease inquiry of the debtor alone is not sufficient, nor can the creditor testify as to his personal belief that the debtor was solvent when the transfer was made; nor is testimony admissible as to what the creditor learned a month or so later as to the financial condition of the debtor at the time of the transfer.</p> <p>3. Accepted orders given within the four months constitute an assignment of the fund, but voidable only as a preferential transfer when the assignor was insolvent and the transfer was for an existing indebtedness and operated as a preference, of which fact the assignee had at the time reasonable cause to believe. The mere giving of the orders by the bankrupt does not of itself constitute a voidable transfer.</p> <p>4. Under the present bankruptcy law a debtor is insolvent when the aggregate of his property shall not, at a fair valuation, be sufficient in amount to pay his debts and not when he is unable to meet his obligations as they mature in the ordinary course of business.</p> <p>5. It cannot be affirmed as a matter of law that, because a debt- or’s business is bad and it is necessary to continually press him for payment, the creditor has reasonable cause to believe him insolvent.</p>

<p>Equity — Jurisdiction—Remedy at law — Private nuisance — Contamination of spring — Denial of facts alleged — Delay—Retention of bill — Suit at law — Practice, Supreme Court and Equity.</p> <p>1. Equity has no concurrent jurisdiction 'with courts of law in the matter of restraining private nuisances. The damage which is imminent and irreparable or is not capable of adequate compensation in money, may be enjoined without waiting for the process of law, but the right must be clear and the facts upon which it rests uncontested.</p> <p>2. A court of equity should not entertain a bill to restrain the contamination of a spring alleged to have been caused by a cesspool on defendant’s premises, where the facts alleged in the bill are fully and expressly denied by defendant’s answer, and where it also appears that the injury complained of was of several years’ standing.</p> <p>3. If the court entertains the bill, and after full hearing dismisses it, because of doubt and perplexity as to whether the cesspool had any connection with the spring, the Supreme Court, on appeal, will modify the decree, so as to direct a retention of the bill, that plaintiff may have an opportunity, within three months, to bring an action at law if he so elects, otherwise the decree to become absolute.</p>

<p>Negligence — Railroads — Grade crossing — "Stop, look and listen”</p> <p>1. In an action against a railroad company to recover damages for injuries to a motor truck struck by a train at a grade crossing on the first of the two tracks at the crossing, no recovery can be had, where it appears that, although the driver stopped, looked and listened at a point eight feet from the first track, and moved forward at a very slow pace, he did not look any further in the direction from which the train came, which struck him, although the slightest glance in that direction, at any instant between the. original stop and his entrance on the first track, would have saved him from the accident.</p> <p>2. One approaching a railroad is not only required to stop, look and listen, but to keep a due observation from the stopping point on till the crossing is made.</p>